Supreme Court turns away OSHA challenge over opposition from Thomas, Gorsuch

Over opposition from two conservative justices, the Supreme Court on Tuesday turned away a challenge that could’ve gutted the Occupational Safety and Health Administration (OSHA).

An Ohio-based construction contractor backed by Republican-led states and anti-regulatory interests contended Congress unconstitutionally delegated its legislative powers to the executive branch when it gave such broad authority to the agency, which sets and enforces workplace standards.

In a brief order, the court declined to take up the contractor’s appeal after a lower court rejected the challenge. Conservative Justices Clarence Thomas and Neil Gorsuch publicly indicated they would’ve taken up the case, but at least four votes were needed.

Gorsuch did not provide an explanation, but Thomas did , arguing the OSHA challenge presented an “excellent vehicle” to tackle the weighty constitutional issue.

“The question whether the Occupational Health and Safety Administration’s broad authority is consistent with our constitutional structure is undeniably important,” Thomas wrote.

He noted that other conservatives on the Supreme Court — Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh — have over the years expressed an interest in “reconsidering this Court’s approach” to Congress’s delegations of power to federal agencies.

Thomas contended that the Labor Department agency’s power extends to “virtually every business in the United States,” quoting a years-old dissent from Kavanaugh where he said the agency asserts authority from the design of a power lawnmower to the amount of contact allowed between trainers and whales at SeaWorld.

“The Occupational Safety and Health Act may be the broadest delegation of power to an administrative agency found in the United States Code,” Thomas wrote. “If this far-reaching grant of authority does not impermissibly confer legislative power on an agency, it is hard to imagine what would.”

He further argued that it would be “no less objectionable” if Congress allowed the IRS to tax anyone it deemed “appropriate.”

The challenge to OSHA was brought by Allstates Refractory LLC, a small general contractor in Ohio that provides furnace services to the glass, metal and petrochemical industries. It was backed by 23 Republican state attorneys general and a variety of libertarian legal groups.

They looked to use the case to take another bite at shrinking the size of the “administrative state” following the Supreme Court’s decisive victory for conservative and anti-regulatory interests in recent years.

The contractor was represented before the high court by Don McGahn, who served as White House counsel to former President Trump.

The high court’s decision on Tuesday to turn away the appeal comes days after it invalidated the Securities and Exchange Commission’s in-house enforcement system used to seek civil fraud penalties. Though the case presented a similar issue to the OSHA petition, the court resolved the case on other grounds.

And last week, the court took a sledgehammer to the power of executive agencies by overruling the Chevron deference , a now-defunct legal doctrine that instructed judges to defer to agencies in cases where the law is ambiguous.

Earlier in the term, however, the court preserved the Consumer Financial Protection Bureau by upholding its funding mechanism.

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