Cite as: 603 U. S. ____ (2024) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES ALLSTATES REFRACTORY CONTRACTORS, LLC v. JULIE A. SU, ACTING SECRETARY OF LABOR, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 23–819. Decided July 2, 2024

The petition for a writ of certiorari is denied. JUSTICE GORSUCH would grant the petition for a writ of certiorari. JUSTICE THOMAS, dissenting from the denial of certiorari. Congress gave the Occupational Safety and Health Ad- ministration the power to enact and enforce any workplace- safety standard that it deems “reasonably necessary or ap- propriate.” 29 U. S. C. §§652(8), 655(b). This petition asks us to consider whether that grant of authority is an uncon- stitutional delegation of legislative power. Because the standard this Court currently applies to determine whether Congress has impermissibly delegated legislative power “largely abdicates our duty to enforce that prohibition,” I would grant the petition. Department of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). The Constitution vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States.” Art. I, §1. And, “[w]e have held that the Constitution categorically for- bids Congress to delegate its legislative power to any other body,” including to an administrative agency. Association of American Railroads, 575 U. S., at 77 (opinion of THOMAS, J.); see also Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). But, under our precedents, a del- egation of authority is constitutional so long as the relevant statute sets out an “ ‘intelligible principle’ ” to guide the agency’s exercise of authority. Id., at 472. The Court of 2 ALLSTATES REFRACTORY CONTRACTORS, LLC v. SU

THOMAS, J., dissenting

Appeals for the Sixth Circuit upheld the delegation of au- thority to the Occupational Safety and Health Administra- tion under this “intelligible principle” test, over Judge Nal- bandian’s dissent. 79 F. 4th 755, 760 (2023). I continue to adhere to my view that the intelligible prin- ciple test “does not adequately reinforce the Constitution’s allocation of legislative power.” Association of American Railroads, 575 U. S., at 77 (opinion of THOMAS, J.); see also Gundy v. United States, 588 U. S. 128, 164 (2019) (GORSUCH, J., dissenting) (explaining that our current in- telligible principle test “has no basis in the original mean- ing of the Constitution, in history, or even in [our prece- dents]”). This case exemplifies the problem. Congress purported to empower an administrative agency to impose whatever workplace-safety standards it deems “appropri- ate.” That power extends to virtually every business in the United States. See §654(a)(2); §652(5) (defining the regu- lated “employer[s]” as any “person engaged in a business affecting commerce who has employees”). The agency claims authority to regulate everything from a power lawnmower’s design, 29 CFR §1910.243(e) (2023), to the level of “contact between trainers and whales at SeaWorld,” SeaWorld of Florida, LLC v. Perez, 748 F. 3d 1202, 1220 (CADC 2014) (Kavanaugh, J., dissenting). The Occupational Safety and Health Act may be the broadest delegation of power to an administrative agency found in the United States Code. See C. Sunstein, Is OSHA Unconstitutional? 94 Va. L. Rev. 1407, 1448 (2008) (“No other federal regulatory statute confers so much discretion on federal administrators, at least in any area with such broad scope”). If this far-reaching grant of authority does not impermissibly confer legislative power on an agency, it is hard to imagine what would. It would be no less objec- tionable if Congress gave the Internal Revenue Service au- thority to impose any tax on a particular person that it deems “appropriate,” and I doubt any jurist would sustain Cite as: 603 U. S. ____ (2024) 3

THOMAS, J., dissenting

such a delegation. The question whether the Occupational Health and Safety Administration’s broad authority is consistent with our constitutional structure is undeniably important. At least five Justices have already expressed an interest in re- considering this Court’s approach to Congress’s delegations of legislative power. See Paul v. United States, 589 U. S. ___, ___ (2019) (statement of KAVANAUGH, J., respecting de- nial of certiorari) (slip op., at 2); Gundy, 588 U. S., at 149 (ALITO, J., concurring in judgment); id., at 164 (GORSUCH, J., joined by ROBERTS, C. J., and THOMAS, J., dissenting). Because this petition is an excellent vehicle to do exactly that, I would grant review.