crossposted from unbossed
In his dissent in American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981), Justice Rehnquist argued that Occupational Safety and Health Act (OSHA) was unconstitutional essentially because Congress had given the agency so much unconstrained power. When Congress does this it engages in an unconstitutional delegation of power and runs afoul of the nondelegation doctrine. In a law review article last year, Prof. Cass Sunstein, Obama's pick to head the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) seems to agree with Rehnquist that OSHA may run afoul of the nondelegation doctrine.
Now, this position of Sunstien's is not necessarily a sky is falling issue, but it is one that deserves attention and discussion if we are to ensure that we retain workplace health and safety protections and at long last attain meaningful protections.
Despite the article's provocative title, Sunstein believes OSHA's mission of protecting U.S. workers is important and its efforts may even need to be strengthened. Rather than abolishing OSHA, in this article Sunstein argues for relying more heavily on cost-benefit analyses when determining OSHA rulemaking priorities. Sunstein believes this approach will lead to greater transparency and accountability at OSHA. He writes that the agency’s current approach to cost-benefit analysis is ‘ad hoc and undisciplined’ and leads to a wide variety of cost-benefit outcomes in its rulemaking. For example, the article includes a table illustrating that the cost per life saved by OSHA rules varies from $100,000 to $11 million, while the federal standard is $6 million.
link
The key is what goes into a cost-benefit analysis. Most people think of it as costs to the employer and benefits to the employee. Employer costs would be money spent on making the workplace safer, while employee benefits would be not getting sick or injured. And therein lies the problem.
First, the employer costs will be easy to show - just plunk down the invoices. The employee's benefits for something that did not happen are impossible to quantify and prove. So under that impoverished view of costs and benefits and how to account for them, the employee always loses.
Second, more important than that the employee always loses out on getting a safer workplace because it is hard to account for the costs for what did not happen and hard to value what a life is worth, the standard allocation of costs and benefits fails to account for real costs and benefits. By assuming all the costs go to the employer and no benefits, it fails to consider that employers lose when they lose employees. They lose their investment in training and must take on costs for finding new workers. They have higher workers compensation costs and health insurance costs. If they have bad enough working conditions they will become an employer of last resort.
Third, employees who are injured also bear costs, and they are huge. Those costs are borne too by their families who face the stress and costs of caring for or dealing with the loss of a loved one. There is the impact on spouses, partners, children, and parents - and friends - when someone is injured on the job. These are real costs and ignoring them does not make them go away.
Fourth, the public bears many costs from workplace injuries. Unsafe workplaces impose costs on society as a whole as it tries to provide support for the injured and their loved ones. We the public subsidize health care through our taxes that support the current health care system in a wide range of ways.
Unless we include all these benefits and costs we cannot make a realistic cost-benefit analysis as to injuries and the value of making workplaces safer.
It may be that Sunstein is thinking along these lines. For example, the abstract of his article says:
Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.
If he is not, then we need to push him in that direction.
On the other hand, it may be time for Congress to revisit OSHA and essentially reverse the Supreme Court and Court of Appeals decisions that have all but rendered OSHA moribund. There is something to Rehnquist's point. And it may be fixable within his own terms. Here is part of his dissent - my italics:
Throughout its opinion, the Court refers to § 6(b)(5) as adopting a "feasibility standard" or a "feasibility requirement." Ante at 452 U. S. 508-522. But as I attempted to point out last Term in Industrial Union Dept. v. American Petroleum Institute, supra, at 448 U. S. 681-685, the "feasibility standard" is no standard at all. Quite the contrary, I argued there that the insertion into § 6(b)(5) of the words "to the extent feasible" rendered what had been a clear, if somewhat unrealistic, statute into one so vague and precatory as to be an unconstitutional delegation of legislative authority to the Executive Branch. Prior to the inclusion of the "feasibility" language, § 6(b)(5) simply required the Secretary to
"set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health. . . ."
Legislative History, Occupational Safety and Health Act of 1970, p. 943 (Comm. Print 1971) (hereinafter Leg.Hist.). Had that statute been enacted, it would undoubtedly support the result the Court reaches in these cases, and it would not have created an excessive delegation problem. The Secretary of Labor would quite clearly have been authorized to set exposure standards without regard to any kind of cost-benefit analysis.
But Congress did not enact that statute. The legislative history of the Act reveals that a number of Members of Congress, such as Senators Javits, Saxbe, and Dominick, had difficulty with the proposed statute, and engaged Congress in a lengthy debate about the extent to which the Secretary should be authorized to create a risk-free work environment. Congress had at least three choices. It could have required the Secretary to engage in a cost-benefit analysis prior to the setting of exposure levels, it could have prohibited cost-benefit analysis, or it could have permitted the use of such an analysis. Rather than make that choice and resolve that difficult policy issue, however, Congress passed. Congress simply said that the Secretary should set standards "to the extent feasible."
. . .
The words "to the extent feasible" were used to mask a fundamental policy disagreement in Congress. I have no doubt that, if Congress had been required to choose whether to mandate, permit, or prohibit the Secretary from engaging in a cost-benefit analysis, there would have been no bill for the President to sign.
So the best course may be for Congress at long last to pick one standard from the menu. We have had decades of experience under OSHA now that can help in making that choice. If even Rehnquist said he would be happy with whichever result Congress chooses - just so long as a choice is made - that position can be cited when anti-regulation purists attack. And they will.
Here is the abstract of Sunstein's article and a link to the full article (at no cost).
Cass R. Sunstein, Is OSHA Unconstitutional? 94 Va. L. Rev. 1407 (2008)
Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.
More on Sunstein and OIRA from the Federal Times here.
At least on progressive a/k/a liberal group has issued warning about Sunstein in this report: Center for Progressive Reform (CPR), Reinvigorating Protection of Health, Safety, and the Environment - The Choices Facing Cass Sunstein
And look here for a conservative's view of Sunstein.
So, the watchword is cautious optimism but vigilance in support of worker rights.
Note: This last portion was edited to add key parts of Rehnquist's dissent. Thanks to burrow owl for prompting the addition.