Can The Government Do That?

The COVID-19 pandemic – including the recently announced Emergency Temporary Standard ("ETS") from the Occupational Safety & Health Administration ("OSHA") – has sparked numerous debates about the proper scope of government authority. I thought it would be helpful to walk through, in simplified terms, how it is that OSHA, as a stand-in for government action generally, contends it has the authority to issue rules such as the ETS.?In so doing, I will raise but avoid passing judgment on various complicated questions.

?It is sometimes taken for granted that for any action by the federal government, we need to first find authority for that action in the United States Constitution.?The first Article of the Constitution governs the Legislative Branch (Congress), reflecting the Founders’ vision that the legislature was and be the most important and powerful branch (history hasn’t quite worked out that way).?Section 8 of Article I enumerates the “powers granted to Congress,” including the power to “regulate Commerce… among the several States.”?This provision, known as the Commerce Clause, has become the principal authority through which Congress acts.?Over time, the scope of activities that have been deemed to involve interstate commerce – and thus subject to regulation by Congress – has become almost limitless.?Not surprisingly, some scholars believe the federal government’s authority has evolved beyond that intended by the Founders.

?Next, in 1970, in bipartisan fashion, Congress passed the Occupational Safety and Health Act (“OSH Act”) with the following stated purpose: “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”[1] To establish the law’s authority, its opening provision sets forth its grounding in the Commerce Clause: “The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.”[2]?

The OSH Act, in numerous places specifically and generally, empowers the Department of Labor to enforce the law, including through the appointment of an Assistant Secretary for Occupational Safety and Health (who must be Senate-approved per Art. II, Sec. II of the Constitution).?Further, the OSH Act empowers the Secretary of Labor to “prescribe such rules and regulations as he (sic) may deem necessary to carry out their responsibilities under this Act.”[3]?These types of provisions are common in federal statutes. Some scholars – generally of the conservative bent – find the delegation of regulation-making to executive agencies problematic.?Justice Gorsuch is a leading critic of the power granted to executive agencies.?In this view, the Congress has unconstitutionally delegated its law-making authority to the executive branch.?Many cases over the years have reviewed whether executive agencies have overstepped their bounds in enacting regulations.

?Nevertheless, in 1971, pursuant to the regulatory authority granted by the OSH Act, the Department of Labor created OSHA for the purposes of enforcing the Act.?So what can OSHA do??The OSH Act declares that an employer “(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees; [and] (2) shall comply with occupational safety and health standards promulgated under this [Act].”[4]?On this second point, OSHA has fairly broad authority under the OSH Act to set standards concerning workplace safety and health,[5] including specifically to enact standards that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”[6]

?Now we need to diverge down two different paths – one governing the normal OSHA process for imposing standards and a second governing emergency standards.

In the normal process, the Supreme Court, interpreting various parts of the OSH Act, has held that OSHA’s authority to promulgate “reasonably necessary or appropriate” standards for “toxic materials or harmful physical agents” requires OSHA to make four findings: (1) that the workplace hazard presented a “significant risk of material impairment of health or functional capacity” to the employees; (2) that a new standard will eliminate or reduce that risk; (3) that remedies selected will reduce the risk to the lowest feasible level; and that the standard is “technologically and economically feasible.”[7]?Next, pursuant to the Administrative Procedures Act (“APA”), before a standard (in the form of a regulation) can come into effect, OSHA (like other federal agencies) must publicly release the proposed standard/regulation and its findings supporting the standard/regulation.[8]?The public and interested parties then are provided time (usually 30-60 days) to provide comments on the proposed rule.?OSHA, like any rulemaking agency, is required to take those comments into consideration.?Additionally, beginning with the Reagan administration, every President has issued an Executive Order which, in sum and substance, requires every agency to demonstrate that a proposed rule’s benefits outweigh its costs (for an excellent book on this issue, see Cass Sunstein’s “The Cost-Benefit Revolution”).?OSHA has followed this process to impose standards on a long list of chemical hazards and toxic substances, such as asbestos, lead, benzene, and more.[9]

?The COVID-19 ETS, as an “emergency temporary standard,” follows an expedited process.?OSHA can impose an ETS without following the normal APA process if it determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”[10]?The emergency standard acts a proposed rule under the normal APA process and OSHA must finalize a non-emergency standard within six months.[11]?In support of the ETS, OSHA cites numerous legal precedents and scientific studies.[12]

?You can see above that OSHA has substantial legal and scientific hurdles to clear in imposing regulations.?Any material misstep along the way can undermine some part of OSHA’s standard or send it back to square one.?Indeed, the Fifth Circuit believes there are “grave statutory and constitutional issues” with the ETS.?While we wait for the courts’ determination on those issues, I hope this article has helped you to better understand the process through which the federal government regulates.

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?If you are interested in reading about OSHA’s potential regulation of the NFL, see this article that I co-authored.

?www.deubertlaw.com

[1] 29 U.S.C. § 651(b).

[2] 29 U.S.C. § 651(a).

[3] 29 U.S.C. § 657(g)(2).

[4] 29 U.S.C. § 654(a).

[5] See 29 U.S.C. § 655.

[6] 29 U.S.C. § 652(8).

[7] These elements come from two different Supreme Court cases: Indus. Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 637, 642-45 (1980); and, Am. Textile Manufacturers Inst. v. Donovan, 452 U.S. 490, 522-36 (1981).?

[8] 5 U.S.C. § 553.

[9] See https://www.osha.gov/chemical-hazards/standards.

[10] 29 U.S.C. § 655(c).

[11] Id.

[12] See https://www.osha.gov/laws-regs/federalregister/2021-06-21.