NAHB Urges Supreme Court to Revive Nondelegation Doctrine

NAHB continues its involvement with Allstates Refractory Contractors, LLC, v. Su, et al. — a case challenging the Occupational Safety and Health Act’s delegation of lawmaking power to the Occupational Safety and Health Administration (OSHA) as unconstitutional — as it heads to the U.S. Supreme Court. 

The Constitution vests in Congress all the legislative powers of the United States. A principle known as the nondelegation doctrine provides that Congress may not delegate its legislative authority to another branch of government. However, over time, the courts have eroded the nondelegation doctrine by allowing Congress to delegate authority to an executive agency if it provides an “intelligible principle” for an agency to follow.

As relevant to Allstates, Congress tasked OSHA with enacting any permanent occupational safety standard it deems appropriate, an extremely broad mandate. The Sixth Circuit Court of Appeals held that Congress properly delegated authority to OSHA under the intelligible principle test and noted that federal courts almost never invalidated congressional delegation of legislative authority. Consequently, Allstates Refractory Contractors filed a petition for the Supreme Court to hear the case and issue a ruling that would revive the nondelegation doctrine.

Allstates addresses whether Congress may outsource the creation of workplace safety standards to OSHA. The type of mandate at issue here grants OSHA complete discretion to establish safety standards without any direction from Congress about how OSHA should identify safety issues or what to consider when creating safety standards. Congress has failed to create any identifiable policy and instead unconstitutionally delegated that responsibility entirely to OSHA.

NAHB filed an amicus brief urging the Court to hear this case, as the nondelegation doctrine is at risk of falling by the wayside to make room for the ever-growing executive branch. NAHB also filed an amicus brief when this case was before the Sixth Circuit.

The nondelegation doctrine is meant to preserve the separation of powers principle. The framers of the Constitution wanted to avoid any one part of government possessing too much unchecked power. Consequently, they dispersed power among three branches that could each, in theory, keep the other branches in check. The nondelegation doctrine enforces that structure by preventing the shift of power from one branch to another.

The legislative branch is the most accountable to the people, which is why it has the power to write laws and set policies. Individual members of Congress are elected by, and may be removed from office by, voters. In contrast, agency officials are not elected and cannot be removed from office by the people they ultimately govern, which disconnects power from the very people most affected by it. Here, Congress, not OSHA, has the power to determine what workplace safety standards should be.

Unfortunately, Congress routinely tasks agencies with crafting policies and regulations, often only providing vague instructions. This has been permitted by the courts, and only a contrary opinion from the Supreme Court instructing the courts to follow a more rigorous policy can correct that habit.

OSHA’s response to the petition for a writ of certiorari is due April 1, 2024, after which the Supreme Court will decide whether to hear the case.