Sunday, December 28, 2008
Cass Sunstein (Harvard, Chicago) recently published a characteristically thoughtful and important piece, whose title asks a provocative and perhaps surprising question: Is OSHA Unconstitutional? The article appears in the most recent issue of the Va. Law Review; it's also posted on ssrn. I highly recommend this.
OSHA's constitutional problem is one of nondelegation: It lacks an "intelligible principle" to guide and limit agency discretion. Sunstein explains:
[The core provision of OSHA] defines an "occupational safety and health standard" as one that is "reasonably necessary or appropriate to provide safe or healthful employment or places of employment." When the Secretary of Labor issues regulations governing tractors, ladders, or electrical equipment, the only question to be asked is whether one or another standard is "reasonably necessary or appropriate."
This language apparently gives the agency authority to "choose whatever principle it likes"--an unconstitutionally broad delegation of authority.
Needless to say, this is a rather significant problem, given OSHA's sweep. But the nondelegation problem is only part of Sunstein's interest: He also seeks "to shed light on some pressing questions for both regulatory policy and administrative law." And these are indeed pressing; Sunstein:
Over 5000 Americans die each year in the workplace, and more than four million are injured or sickened by the conditions of their employment. Surely steps could be taken to reduce these deaths, injuries, and illnesses.
Sunstein explores three judicial solutions to these problems. First, and most aggressively, courts could rule OSHA unconstitutional. This solution would require Congress to reconsider OSHA--thus increasingly "democratic engagement with that question"--and "might produce a better, because more informed, occupational safety law." But the solution is also obviously dramatic and disruptive and, as Sunstein argues, unnecessary.
Second, and least aggressively, courts could set floors and ceilings for agency actions, building on current agency practices. This approach has the benefit of avoiding the constitutional question--the Avoidance Canon--but still gives the agency perhaps too much discretion.
Finally, courts could adopt a reasonable relation test between costs and benefits of regulations. Sunstein explains:
The agency should therefore be required to show, not that a regulation satisfies a strict cost-benefit test, but that the costs have a reasonable relationship to the benefits. If the monetized costs exceed the monetized benefits, the agency should be permitted to proceed so long as there is such a relationship between the two. . . . The agency could well decide that a rule would have desirable welfare effects even if the monetized benefits were lower than the monetized costs.
Sunstein argues that this third solution both avoids the constitutional issue and provides sufficient guidance to the agency. It also puts the OSHA issues in the sunshine. But, as he recognizes, the solution also leads to its own problems: OSHA doesn't obviously require this kind of loose cost-benefit analysis; and it's not clear why the courts should be able to save a statute from nondelegation problems when agencies themselves, under American Trucking, cannot. Sunstein argues that invocation of the Avoidance Canon resolves both problems: The courts may--even if not must--adopt the loose cost-benefit approach and thus validly interpret OSHA to avoid the nondelegation problem.
In addition to the constitutional analysis and argument, this article is an excellent springboard for discussions of institutional roles and competence, democratic engagement and legitimacy, and the appropriate role of cost-benefit analysis in agency decisionmaking. I highly recommend this.