The Download of the Week is Is OSHA Unconstitutional? by Cass R. Sunstein. Here is the abstract:
Under
the Occupational Safety and Health Act, the Secretary of Labor is
authorized to issue whatever standards are reasonably necessary or
appropriate to provide safe or healthful places of employment. More
than any other provision in federal regulatory law, this language is
subject to a plausible nondelegation challenge, because it seems to ask
the Secretary to choose among a wide array of intelligible principles
for standard-setting. The constitutional challenge raises serious and
unresolved questions for both regulatory policy and administrative law.
In answering those questions, courts have three principal alternatives.
The most aggressive approach would be to invalidate the statute in the
hopes of encouraging, for the first time, sustained legislative
deliberation about the proper content of occupational safety and health
policy. The most modest approach, rooted in the Avoidance Canon, would
be to construe the statutory language to produce floors and ceilings on
agency action; that approach would require the Secretary to ban
significant risks while forbidding the Secretary from regulating
trivial or de minimis risks and also requiring the Secretary to show
that any regulations are feasible. The third and preferable approach,
also rooted in the Avoidance Canon, would be to construe the statute so
as to require the agency to engage in a form of cost-benefit balancing.
Such a construction would have the advantage of promoting greater
transparency and accountability at the agency level. At the same time,
it would raise difficult questions about the precise nature of such
balancing in the context of occupational safety policy and also about
legal constraints on agency assessment of both costs and benefits.
Because of the distinctive nature of workplace safety, the best
approach would give the agency considerable flexibility on questions of
valuation while also permitting serious attention to distributional
factors.
And from the paper:
There is a final puzzle, and it raises a large issue with respect to the relationship
between courts and the administrative state. That issue involves the status of narrowing
constructions, designed to avoid nondelegation challenges by construing agency
discretion to be narrow rather than broad.147 Such narrowing constructions are not
uncommon,148 and I have suggested that the cost-benefit approach is best justified as an
example. But the whole approach raises a serious question. The problem, in sum, is that
if, as American Trucking teaches, agencies are not permitted to rescue open-ended
delegations through subsidiary policymaking in the guise of interpretation, courts should
not be permitted to do so either.149 The question therefore arises: What is the status of the
Avoidance Canon, in the specific context of a nondelegation challenge, in the aftermath
of American Trucking?At first glance, nothing in American Trucking should endanger the use
of the Avoidance Canon. The Court’s suggestion was merely that if a
statute does confer open- ended authority on an agency, the agency
cannot eliminate that problem by deciding how much discretion to
exercise. “The idea that an agency can cure an unconstitutionally
standardless delegation of power by declining to exercise some of that
power seems to us internally contradictory. The very choice of which
portion of the power to exercise–that is to say, the prescription of
the standard that Congress had omitted–would itself be an exercise of
the forbidden legislative authority.”150 The new nondelegation
doctrine, repudiated by American Trucking, asked agencies to develop
“subsidiary policy” by which to discipline their discretion under
open-ended statutes. The reason is that the development of subsidiary
policy counts as an exercise of discretion. It is not “interpretation.”If American Trucking is understood in this way, it certainly suggests that courts
cannot rescue a statute from a nondelegation challenge if they are themselves making
subsidiary policy. But when a court is legitimately selecting an interpretation that
narrows agency discretion, it is not really making subsidiary policy, certainly not in the
sense that the court of appeals deemed sufficient, and the Supreme Court irrelevant, in
American Trucking. Instead a court that properly uses the Avoidance Canon is relying on
standard legal materials to hold that of two or more plausible interpretations of a text, the
agency is bound by the one that gives it limited rather than open-ended authority. An
approach of this kind would not be legitimate if the standard legal materials left both
court and agency at sea – if the narrower interpretation does not qualify as an
interpretation at all. But if courts can fairly insist on that interpretation, as a reasonable
way of coming to terms with what Congress has actually said, American Trucking creates
no obstacle.Here, then, is a possible problem with the approaches I have outlined.
Suppose that the relevant interpretation is really an exercise in
policymaking – that courts are choosing an intelligible principle not
on the basis of anything that Congress has done, but as a means of
implementing what judges see as the best way to come to terms with a
difficult problem. Under American Trucking, the “floors and ceilings”
approach, and the cost-benefit approach, would not cure the
nondelegation problem if they amounted to judicial policymaking. But I
have argued that on the basis of the standard legal materials, both
approaches are legitimate readings of the legal materials in light of
the Avoidance Canon. If this argument is correct, then judicial
insistence on one or another should not be taken as running afoul of
the Court’s rejection of the new nondelegation doctrine.
A deeply interesting treatment of an important question–very highly recommended.