OSHA’s Nondelegation Challenge: Stakes and Arguments

Quick Hits

• Two Texas produce associations filed suit against OSHA, challenging the constitutionality of its general safety standards.
• The plaintiffs argue that OSHA’s broad mandate lacks the necessary intelligible principle required by the U.S. Constitution.
• The lawsuit seeks to invalidate OSHA’s general safety regulations, potentially impacting federal workplace safety enforcement.

That motion mounts a frontal attack on the Occupational Safety and Health Act’s (OSH Act) core delegation for general safety standards. Framed as a facial nondelegation challenge, it contends that the U.S. Congress granted OSHA an effectively unlimited mandate to promulgate workplace safety rules that are “reasonably necessary or appropriate” without supplying the intelligible principle the U.S. Constitution requires. The litigation arrives amid a broader judicial reassessment of separation-of-powers limits and leverages recent Supreme Court of the United States discussions of what constitutes an adequate intelligible principle. The dispute is high-stakes and carries potentially sweeping implications for federal workplace regulation.

What the Motion Seeks and Why It Matters

The plaintiffs seek summary judgment declaring unconstitutional OSHA’s authority to issue general, permanent safety standards under OSHA’s regulations at 29 U.S.C. § 655(b) (regarding the procedure for promulgating or revoking and standard), as informed by § 652(8) (providing the definition of an occupational safety and health standard). Their request excludes toxic-substance and harmful-physical-agent standards promulgated under § 655(b)(5), but otherwise targets OSHA’s general safety rulemaking foundation. They also seek a permanent injunction barring enforcement of all general standards adopted under § 655(b).

The requested relief is extraordinary. It would invalidate a vast corpus of workplace safety regulations that govern employers across the economy and are enforced through civil and criminal penalties. The plaintiffs’ theory is straightforward: the statute’s directive—to issue any occupational safety or health standard that is “reasonably necessary or appropriate” to secure safe and healthful workplaces—contains no meaningful boundaries, no specific factors to guide agency action, and no objective preconditions that must be found or demonstrated. The breadth of regulated sectors, the weight of sanctions, and the volume of detailed standards developed over decades, they argue, underscore that Congress ceded core policy choices to OSHA without constitutionally adequate guidance.

Plaintiffs’ Core Legal Case

The plaintiffs’ argument follows a familiar nondelegation template: Congress must supply a clear policy and meaningful boundaries. They contend the OSH Act’s defining phrase—“reasonably necessary or appropriate”—is too malleable to constrain rulemaking discretion, particularly when paired with permissive verbs and a disjunctive structure. On this reading, OSHA’s discretion is limited only by its own judgment.

Against that textual backdrop, the plaintiffs rely on the Supreme Court’s modern articulation of the intelligible principle framework. In their view, valid delegations feature discernible policy objectives, clearly defined boundaries demarcating who and what the agency may regulate, and objective triggers or preconditions ascertainable by courts and the public. By contrast, they argue, OSHA’s scheme is open-ended: it neither quantifies risk thresholds nor compels specific findings before acting. They invoke historical nondelegation precedents as analogues for open-ended discretion and look to cases such as Whitman v. American Trucking Associations, Inc. and recent structural decisions for the proposition that Congress cannot abdicate essential policy judgments.

The plaintiffs also reject saving constructions rooted in agency practice or judicial gloss. Constraints such as significant risk and feasibility—often referenced in OSHA rulemakings and case law—are not textually required by § 655(b), they argue, and thus cannot cure a facially unconstitutional delegation. On remedy, they assert standing as objects of regulation incurring unrecoverable compliance costs and constitutional harm, and they contend that the equities favor enjoining unconstitutional exercises of governmental power.

Anticipated Government Response

The government is likely to read the OSH Act holistically and emphasize decades of judicially enforced constraints. First, it will argue that the Act’s purpose, definitional provisions, and rulemaking framework together embody a reviewable policy: to ensure safe and healthful employment through standards that are reasonably necessary or appropriate to mitigate workplace hazards. That policy, the government will contend, is comparable in specificity to delegations upheld across the administrative state.

Second, the government will highlight longstanding judicial gloss that cabins OSHA’s discretion. Courts have repeatedly required OSHA to demonstrate significant risk, respect feasibility limits, develop rules through notice-and-comment grounded in substantial evidence, and justify choices through reasoned decision-making. Far from self-imposed, these constraints are anchored in the statute’s structure and in administrative law, and they provide the ascertainable boundaries that recent decisions have emphasized.

Third, the government will contest the scope of relief. Even if statutory ambiguity is found, the government will argue that wholesale invalidation of all general safety standards is neither necessary nor appropriate given severability principles, reliance interests, and the strong public interest in stable workplace protections. Narrower, as-applied remedies would mitigate any identified defects without creating regulatory disruption.

As a practical matter, federal appellate courts have previously rejected multiple nondelegation challenges to OSHA’s authority to promulgate safety standards. Most recently, in Allstates Refractory Contractors LLC v. Su (2023), the appellate court upheld Congress’s delegation to OSHA, reasoning that in an increasingly complex society with ever-changing and technical problems, Congress must be able to delegate power under broad general directives. The court concluded that OSHA’s rulemaking authority is necessary for Congress to carry out its Article I responsibilities and that the OSH Act’s scope and limitations provide sufficient boundaries to satisfy the nondelegation doctrine.

Strengths and Vulnerabilities

The plaintiffs’ case carries force on the text. “Reasonably necessary or appropriate” is strikingly open-ended for a regime regulating nearly the entire economy with substantial penalties. Their reliance on the Supreme Court’s emphasis on objective boundaries and preconditions is strategically apt; it highlights the absence of enumerated factors, quantitative thresholds, or mandated findings in § 655(b) itself. The current separation-of-powers tenor further strengthens the rhetorical footing of their challenge.

The plaintiffs, however, face headwinds. For decades, courts have required OSHA to meet significant-risk and feasibility thresholds and to justify rules on robust administrative records subject to judicial review. That body of precedent functions as a set of enforceable constraints. The plaintiffs’ assertion that such constraints cannot “fix” the statute confronts the instruction to read statutes as a whole and the administrative law reality that many valid delegations are channeled by procedures and standards developed through adjudication and review. The plaintiffs also assume substantial remedial risk: sweeping injunctions that unsettle health and safety regimes are disfavored, especially where narrower relief is available.

In sum, the government’s defense benefits from the gravitational pull of practice and precedent. A holistic reading of the OSH Act, coupled with judicially policed requirements for risk identification and feasibility, provides a path to uphold the delegation without reworking the text. Still, the government must contend with the OSH Act’s textual sparseness compared to statutes that specify triggers, findings, or quantifiable constraints, and with the critique that some judicial gloss risks veering into judicial redrafting.

Procedural Posture and Remedial Paths

Because the motion seeks summary judgment on a facial theory, the plaintiffs must show that the statute lacks an intelligible principle in all or nearly all applications. Courts often prefer narrower paths, including as-applied holdings or severability-based remedies that preserve undisturbed portions of a statutory or regulatory scheme. Even a court skeptical of the delegation may hesitate to vacate the entire edifice of general safety standards. It could, for example, reinforce and require specific findings—significant risk and feasibility—without collapsing the regime, or limit relief to challenged standards where the record lacks the required showings.

Key Takeaways

The case presents a clean, consequential question: does the OSH Act’s general safety standard provision, as written, supply the intelligible principle the Constitution demands, or is the delegation saved only by judicially imposed constraints? The plaintiffs have the stronger textual argument and the momentum of heightened separation-of-powers scrutiny; the government has the stronger institutional and remedial arguments, backed by decades of case law that has made OSHA’s rulemaking meaningfully reviewable. The outcome will likely turn on how strictly the court demands text-embedded, objective guideposts and how willing it is to credit long-settled judicial constraints as supplying the necessary limiting principles. Even if the court is receptive to the nondelegation claim, the breadth of the requested injunction presents a significant hurdle that may drive a more tailored disposition.

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

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