In 1970, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthful working conditions for working Americans and gave it the authority to set and enforce workplace health standards. In accordance with this mission, OSHA issued “COVID-19 Vaccination and Testing; Emergency Temporary Standard” (the ETS), which requires businesses with 100 or more employees to have their employees either get the COVID-19 vaccine or to comply with enhanced safety measures for unvaccinated employees (including wearing face coverings and weekly COVID-19 testing). The Fifth Circuit stayed enforcement of the ETS, relying partially on the ground that Congress’s delegation of authority to OSHA violated the nondelegation doctrine, a constitutional principle that constrains Congress’s ability to delegate its legislative authority to executive agencies. Petitions challenging the OSHA ETS were consolidated and assigned to the Sixth Circuit Court of Appeals via a multi-circuit lottery. OSHA subsequently filed an emergency motion to dissolve the stay, and CAC filed an amicus brief in support of OSHA’s motion. In December 2021, the Sixth Circuit dissolved the stay, and several petitioners immediately filed emergency applications in the Supreme Court, asking the Court to reinstate the stay until the case is heard on the merits. On December 23, CAC filed an amicus brief in the Supreme Court opposing the applications for a stay pending review.

Our brief explains why there is no unconstitutional delegation of legislative authority here. It begins by explaining that the Founders embraced a robust administrative state. From the United States’ earliest days, Congress delegated legislative authority to executive officials to address the nation’s most pressing issues.

Our brief elaborates on three examples of delegations by Founding-era congresses.  In 1790, the First Congress delegated authority to the executive branch to borrow money to address the national debt, which was one of the chief crises in the wake of the Revolutionary War. Not long after, Congress created a statutory scheme that delegated to the equivalent of a massive modern-day administrative agency the power to levy a direct tax on private real estate. In 1796, Congress empowered the President to aid in the execution of quarantines and state health laws in to address a series of deadly yellow fever epidemics.  Collectively, these examples demonstrate that the Founders recognized only a limited constraint on Congress’s authority to delegate its legislative power—one that closely aligns with the Supreme Court’s current rule that broad delegations of legislative authority are permissible so long as they lay down an “intelligible principle” to which the agency is directed to conform.

As our brief argues, the Occupational Safety and Health Act of 1970, which established OSHA and authorized the implementation of the ETS, does not violate the nondelegation doctrine. The intelligible principle standard, as articulated by the Supreme Court, only requires Congress to clearly delineate a general policy, the public agency which is to apply the policy, and the boundaries of the agency’s authority. The 1970 Act comfortably passes this test by giving OSHA authority to establish “standards” for health and safety in the workplace and setting boundaries for the implementation of these standards, such as by requiring the agency to employ the “standard which assures the greatest protection of the safety or health of affected employees.” This broad but clearly defined delegation of authority is consistent with Supreme Court precedent, including prior cases upholding delegations of legislative authority for purposes of protecting the “public health.” It is also consistent with constitutional text and history, which demonstrate that the Constitution empowers the federal government, including administrative agencies, to provide flexible and—when necessary—robust responses to a wide range of scenarios.

On January 13, 2022, the Supreme Court stayed the ETS pending review on the merits. The Court held that the applicants are likely to succeed on the merits of their claim that OSHA lacked statutory authority to impose the mandate. In dissent, Justices Breyer, Sotomayor, and Kagan explained that OSHA acted well within its statutory authority to protect employees from health and safety dangers when it issued its vaccinate-or-test policy.

In January 2022, OSHA withdrew the ETS, and the government moved to dismiss the petition as moot. On February 18, 2022, the Sixth Circuit granted that motion, and the case was dismissed.