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OSHA and OSHRC in Transition, Part II: Contemporary Challenges, Litigation Posture, and Prospective Reforms
Today’s constitutional challenges to the Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Review Commission (OSHRC) converge on three fronts: Article II of the U.S. Constitution for-cause removal protections for administrative officials, the nondelegation doctrine, and Article III/Seventh Amendment adjudication constraints.
The Supreme Court of the United States has not overruled Humphrey’s Executor v. United States (examined in Part I of our series), but decisions such as Free Enterprise Fund v. Public Company Accounting Oversight Board and Seila Law v. Consumer Financial Protection Bureau treat it as a narrow exception, signaling that agencies must closely resemble the Federal Trade Commission (FTC) in design and function to retain for-cause removal protections. For OSHRC, that means its multimember, adjudicatory character remains relevant but not determinative; any exercise of substantial executive power or deviation from the FTC model could expose the commission to renewed scrutiny.
The Supreme Court of the United States has not overruled Humphrey’s Executor v. United States (examined in Part I of our series), but decisions such as Free Enterprise Fund v. Public Company Accounting Oversight Board and Seila Law v. Consumer Financial Protection Bureau treat it as a narrow exception, signaling that agencies must closely resemble the Federal Trade Commission (FTC) in design and function to retain for-cause removal protections. For OSHRC, that means its multimember, adjudicatory character remains relevant but not determinative; any exercise of substantial executive power or deviation from the FTC model could expose the commission to renewed scrutiny.
