WASHINGTON, DC, Nov. 15, 2022 (GLOBE NEWSWIRE) — The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a motion friend of the court meager in Allstates Refractory Contractors LLC v. Walsh, et al.questioning the constitutionality of the Occupational Safety and Health Act (OSH) 1970. NCLA’s brief asks the U.S. Court of Appeals for the Sixth Circuit to rule that the Occupational Safety and Health Act unlawfully confers legislative authority — specifically, legislative authority to promulgate permanent “safety standards” — by authorizing the Secretary of Labor to publish occupational safety standards, amend or revoke what it deems “reasonably necessary or appropriate”.

Congress cannot delegate the legislative powers that Article I of the Constitution gives it to an executive agency such as the Occupational Safety and Health Administration (OSHA). The Occupational Safety and Health Act’s criteria for safety standards are so open that they give the executive branch uncontrolled legislative powers to enact workplace safety legislation. Such unlimited discretion to enact safety standards under Section 6(b) of the Occupational Safety and Health Act is unconstitutional.

The district court concluded that the Occupational Safety and Health Act passed the (low-level) comprehensibility principle test of the non-delegation doctrine. It found that Congress legitimately gave OSHA the discretion to determine the appropriate level of public safety and then set standards based on that determination. But a law with such a subjective criterion to guide executive behavior renders the test of the intelligibility principle meaningless. To avoid administrative legislation, the Supreme Court has said Congress must present objective principles that “enable the courts to consider” whether the agency faithfully carried out the legislative order. The “reasonably necessary or reasonable” standard of the Occupational Safety and Health Act is entirely subjective and thus falls short of this minimum requirement. The Sixth Circuit should issue an injunction…