Are the Days of OSHA’s Rulemaking and Reliance on Consensus Standards Numbered?

Quick Hits

• The introduction of the “Nullify the Occupational Safety and Health Administration Act” bill by Representative Biggs (R-AZ) has sparked significant speculation about the future of OSHA, especially under the Trump administration.
• Justice Thomas’s dissent to the denial of certiorari in Allstates Refractory Contractors, LLC hinted at a potential Supreme Court shift regarding the constitutionality of delegations of rulemaking authority.
• On March 26, 2025, the Supreme Court heard arguments in consolidated cases challenging the Telecommunications Act of 1996’s delegation of authority to the FCC and USAC that could have broader implications for how administrative agencies such as OSHA operate.

Justice Clarence Thomas’s dissent to the denial of certiorari in Allstates Refractory Contractors, LLC, v. Su at the end of the 2023–2024 term of the Supreme Court of the United States portended a potential change to the manner that the delegation of rulemaking authority might be addressed by the Court. Specifically, Justice Thomas was concerned about whether this broad grant of rulemaking authority violated Article I, Section 1 of the U.S. Constitution, which states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This term, the Court has taken up a pair of cases relating to the Telecommunications Act of 1996, the Universal Service Fund (USF), and the Universal Service Administrative Company (USAC), which is focused on whether the legislation violates Article I, Section 1 of the Constitution.

The Telecommunications Act of 1996 was the first substantive revision of the Communications Act of 1934 post–deregulation and modernization of American telecommunications markets and technologies. Local markets were opened to competition, and though there always had been funding for universal services, it developed a new system for funding those universal services. The revisions, per the Federal Communications Commission (FCC), set forth five principles:

• “Promote the availability of quality services at just, reasonable and affordable rates for all consumers”
• “Increase nationwide access to advanced telecommunications services”
• “Advance the availability of such services to all consumers, including those in low income, rural, insular, and high cost areas, at rates that are reasonably comparable to those charged in urban areas”
• “Increase access to telecommunications and advanced services in schools, libraries and rural health care facilities”
• “Provide equitable and non-discriminatory contributions from all providers of telecommunications services for the fund supporting universal service programs”

In addition, the Telecommunications Act of 1996 directed the FCC to formalize what services must be provided to receive support from the USF, expanded the number of companies required to pay into the fund, and created USAC. USAC is described by the FCC as “an independent, not-for-profit corporation designated as the administrator of the federal Universal Service Fund by the FCC.”

The Supreme Court, on March 26, 2025, heard argument in Federal Communications Commission v. Consumers’ Research, No. 24-354, and Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, No. 24-422. Both cases relate to the Fifth Circuit Court of Appeals’ en banc decision in Consumers’ Research v. Federal Communications Commission that “the combination of Congress’s sweeping delegation to FCC and FCC’s unauthorized subdelegation to USAC violates the [Constitution].”

More specifically, the Fifth Circuit Court of Appeals stated:

American telecommunications consumers are subject to a multibillion-dollar tax nobody voted for. The size of that tax is de facto determined by a trade group staffed by industry insiders with no semblance of accountability to the public. And the trade group in turn relies on projections made by its private, for-profit constituent companies, all of which stand to profit from every single tax increase. This combination of delegations, subdelegations, and obfuscations of the USF Tax mechanism offends Article I, § 1 of the Constitution.

While Justice Thomas, in Allstates Refractory, certainly suggested that a majority of the Court was of a like mind with respect to the delegation of rulemaking authority granted to administrative agencies, like OSHA, he did not address the delegation of rulemaking to “nonprofits,” such as the American National Standards Institute (ANSI), the American Society of Mechanical Engineers (ASME), and other organizations that publish the consensus standards cited by OSHA in its regulations and when applying the Occupational Safety and Health (OSH) Act’s “General Duty Clause.”

Given his description of the rulemaking authority contained within the OSH Act as being among the broadest to any administrative agency, it is conceivable that a ruling that confirms the Fifth Circuit’s decision in Federal Communications Commission v. Consumers’ Research, would compel Congress to act and actually legislate the workplace health and safety regulations OSHA would enforce. Arguably, reliance on “national standards,” which is built into the OSH Act, would have to be replaced with rules contained within legislation, thereby compelling Congress to have a much more active role with respect to workplace health and safety.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Workplace Safety and Health blog as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts