Allstates Refractory Contractors v. Su

1 Cite as: 603 U. S. ____ (2024)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
ALLSTATES REFRACTORY CONTRACTORS, LLC v.
JULIE A. SU, ACTING SECRETARY OF LABOR,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 23–819. Decided July 2, 2024
The petition for a writ of certiorari is denied. JUSTICE
GORSUCH would grant the petition for a writ of certiorari.
J
USTICE THOMAS, dissenting from the denial of certiorari.
Congress gave the Occupational Safety and Health Ad-
ministration the power to enact and enforce any workplace-
safety standard that it deems “reasonably necessary or ap-
propriate.” 29 U. S. C. §§652(8), 655(b). This petition asks
us to consider whether that grant of authority is an uncon-
stitutional delegation of legislative power. Because the
standard this Court currently applies to determine whether
Congress has impermissibly delegated legislative power
“largely abdicates our duty to enforce that prohibition,” I
would grant the petition. Department of Transportation v.
Association of American Railroads, 575 U. S. 43, 77 (2015)
(T
HOMAS, J., concurring in judgment).
The Constitution vests “[a]ll legislative Powers herein
granted . . . in a Congress of the United States.” Art. I, §1.
And, “[w]e have held that the Constitution categorically for-
bids Congress to delegate its legislative power to any other
body,” including to an administrative agency. Association
of American Railroads, 575 U. S., at 77 (opinion of T
HOMAS,
J.); see also Whitman v. American Trucking Assns., Inc.,
531 U. S. 457, 472 (2001). But, under our precedents, a del-
egation of authority is constitutional so long as the relevant
statute sets out an “‘intelligible principle’” to guide the
agency’s exercise of authority. Id., at 472. The Court of

2 ALLSTATES REFRACTORY CONTRACTORS, LLC v. SU
T
HOMAS, J., dissenting
Appeals for the Sixth Circuit upheld the delegation of au-
thority to the Occupational Safety and Health Administra-
tion under this “intelligible principle” test, over Judge Nal-
bandian’s dissent. 79 F. 4th 755, 760 (2023).
I continue to adhere to my view that the intelligible prin-
ciple test “does not adequately reinforce the Constitution’s
allocation of legislative power.” Association of American
Railroads, 575 U. S., at 77 (opinion of T
HOMAS, J.); see also
Gundy v. United States, 588 U. S. 128, 164 (2019)
(G
ORSUCH, J., dissenting) (explaining that our current in-
telligible principle test “has no basis in the original mean-
ing of the Constitution, in history, or even in [our prece-
dents]”). This case exemplifies the problem. Congress
purported to empower an administrative agency to impose
whatever workplace-safety standards it deems “appropri-
ate.” That power extends to virtually every business in the
United States. See §654(a)(2); §652(5) (defining the regu-
lated “employer[s]” as any “person engaged in a business
affecting commerce who has employees”). The agency
claims authority to regulate everything from a power
lawnmower’s design, 29 CFR §1910.243(e) (2023), to the
level of “contact between trainers and whales at SeaWorld,”
SeaWorld of Florida, LLC v. Perez, 748 F. 3d 1202, 1220
(CADC 2014) (Kavanaugh, J., dissenting).
The Occupational Safety and Health Act may be the
broadest delegation of power to an administrative agency
found in the United States Code. See C. Sunstein, Is OSHA
Unconstitutional? 94 Va. L. Rev. 1407, 1448 (2008) (“No
other federal regulatory statute confers so much discretion
on federal administrators, at least in any area with such
broad scope”). If this far-reaching grant of authority does
not impermissibly confer legislative power on an agency, it
is hard to imagine what would. It would be no less objec-
tionable if Congress gave the Internal Revenue Service au-
thority to impose any tax on a particular person that it
deems “appropriate,” and I doubt any jurist would sustain

3 Cite as: 603 U. S. ____ (2024)
T
HOMAS, J., dissenting
such a delegation.
The question whether the Occupational Health and
Safety Administration’s broad authority is consistent with
our constitutional structure is undeniably important. At
least five Justices have already expressed an interest in re-
considering this Court’s approach to Congress’s delegations
of legislative power. See Paul v. United States, 589 U. S.
___, ___ (2019) (statement of K
AVANAUGH, J., respecting de-
nial of certiorari) (slip op., at 2); Gundy, 588 U. S., at 149
(A
LITO, J., concurring in judgment); id., at 164 (GORSUCH,
J., joined by R
OBERTS, C. J., and THOMAS, J., dissenting).
Because this petition is an excellent vehicle to do exactly
that, I would grant review.