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Motion for Leave to File Amicus Brief — Constitutional Accountability Center
Summary
A motion of Constitutional Accountability Center for leave to file an attached amicus brief in opposition to applications for a stay or injunction pending review, dated December 23, 2021, in the Supreme Court of the United States, concerning the OSHA emergency temporary standard on COVID-19 vaccination and testing. It also asks leave to file in unbound format and without 10 days' advance notice. It states that the proposed brief offers the perspective that there is no grounding in the Constitution's text and history for applicants' argument about an unconstitutional delegation of legislative power. The attached brief's table of contents lists arguments that the Founders permitted broad delegations of legislative authority and that the statute does not violate the nondelegation doctrine.
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“Motion for Leave to File Amicus Brief — Constitutional Accountability Center.”
Original at www.supremecourt.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/scotus/undated-motion-21a244-012-dec-23-2021-main-document-20211223102712878-osha-scotus-motion-brief-final/
, SHA-256 873c237a07f1a58f8cd589f053cd7da20e4eec1bca2cd28febabea39755477a5.Full text
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, 21A260, and 21A267
IN THE
Supreme Court of the United States
___________
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
___________
On Applications for Stay or Injunction Pending Review of Petition for Writ of Certiorari to
the United States Court of Appeals for the Sixth Circuit
___________
MOTION OF CONSTITUTIONAL ACCOUNTABILITY CENTER FOR LEAVE TO
FILE ATTACHED AMICUS BRIEF IN OPPOSITION TO APPLICATIONS FOR
STAY OR INJUNCTION PENDING REVIEW; FOR LEAVE TO FILE WITHOUT
10-DAYS NOTICE; AND FOR LEAVE TO FILE IN PAPER FORMAT
___________
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
MIRIAM BECKER-COHEN
SMITA GHOSH**
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
December 23, 2021 * Counsel of Record
** Not admitted in D.C.;
supervised by
principals of the firm
Constitutional Accountability Center (CAC) respectfully moves under Supreme
Court Rule 37.2 for leave (1) to file the attached brief as amicus curiae in opposition
to the Emergency Applications filed on December 17-22, 2021, seeking a stay or in-
junction pending review of the Sixth Circuit’s decision to dissolve a stay of the Occu-
pational Safety and Health Administration Emergency Testing Standard on
COVID-19 vaccination and testing, (2) to file in unbound format on 8.5-by-11-inch
paper, and (3) to the extent leave is required, to file without 10 days’ advance notice
to the parties of amicus’s intent to file.
By email on December 22, 2021, amicus sought consent from the parties to file an
amicus curiae brief in opposition to the emergency applications. Counsel for the Ap-
plicants in eleven of the fourteen applications—Nos. 21A243, 21A244, 21A246,
21A247, 21A248, 21A250, 21A251, 21A252, 21A258, 21A249 and 21A260—consented
to the filing. Counsel for the remaining Applicants had not responded as of 7 p.m. on
December 22, 2021. Counsel for the government took no position.
CAC is a think tank, public interest law firm, and action center dedicated to ful-
filling the progressive promise of the Constitution’s text and history. CAC works in
our courts, through our government, and with legal scholars to improve understand-
ing of the Constitution and preserve the rights and freedoms it guarantees. CAC has
an interest in ensuring that the Constitution is read, consistent with its text and
ii
history, to allow Congress to delegate federal administrative agencies the authority
and flexibility to craft effective responses to national crises, including the COVID-19
pandemic.
Permitting the filing of the proposed brief would offer an important perspective to
this Court: that there is no grounding in the Constitution’s text and history for Ap-
plicants’ argument that the Occupational Safety and Health Act would contain an
unconstitutional delegation of legislative power if interpreted to authorize the ETS.
As amicus explains in its proposed brief, Founding-era Congresses repeatedly made
broad delegations of legislative authority, and these delegations were not the subject
of significant nondelegation objections.
Moreover, given the expedited consideration of this matter, amicus respectfully
requests leave to file in unbound format on 8.5-by-11-inch paper and, to the extent
leave is required, to file the brief without 10 days’ advance notice to the parties of
amicus’s intent to file.
For the foregoing reasons, CAC respectfully requests that this motion be granted.
iii
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
MIRIAM BECKER-COHEN
SMITA GHOSH**
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
December 23, 2021 * Counsel of Record
** Not admitted in D.C.;
supervised by
principals of the firm
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, 21A260, and 21A267
IN THE
Supreme Court of the United States
___________
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
___________
On Applications for Stay or Injunction Pending Review of Petition for Writ of Certiorari to
the United States Court of Appeals for the Sixth Circuit
___________
BRIEF OF CONSTITUTIONAL ACCOUNTABILITY CENTER AS
AMICUS CURIAE IN OPPOSITION TO APPLICATIONS FOR
STAY OR INJUNCTION PENDING REVIEW
___________
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
MIRIAM BECKER-COHEN
SMITA GHOSH**
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
December 23, 2021 * Counsel of Record
** Not admitted in D.C.;
supervised by
principals of the firm
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................... iii
INTEREST OF AMICUS CURIAE ............................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 1
ARGUMENT .................................................................................................................. 3
I. The Founders Permitted Broad Delegations of Legislative
Authority to Executive Officials ..................................................................... 3
A. Congress Delegated Broad Legislative Authority to
Address the National Debt......................................................................... 4
B. Congress Delegated Broad Legislative Authority in
Connection with the Direct Tax of 1798 .................................................... 6
C. Congress Delegated Broad Legislative Authority in the
Nation’s First Quarantine Law.................................................................. 7
II. The Statute at Issue Here, as Understood to Authorize
Implementation of the ETS, Does Not Violate the
Nondelegation Doctrine ................................................................................... 8
CONCLUSION ......................................................................................................... 12
iii
TABLE OF AUTHORITIES
Page(s)
Cases
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) ...................................................................................... 2, 10, 11
Gibbons v. Ogden,
22 U.S. 1 (1824) ........................................................................................................ 2
Gundy v. United States,
139 S. Ct. 2116 (2019) .................................................................................... 2, 9, 10
J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928) .................................................................................................. 1
Mistretta v. United States,
488 U.S. 361 (1989) .............................................................................................. 8, 9
Pan. Refining Co. v. Ryan,
293 U.S. 388 (1935) .................................................................................................. 2
Touby v. United States,
500 U.S. 160 (1991) ........................................................................................ 8, 9, 10
Whitman v. Am. Trucking Assocs.,
531 U.S. 457 (2001) .................................................................................... 1, 8, 9, 10
Statutes, Regulations, and Constitutional Provisions
Act of Aug. 4, 1790, ch. 34, 1 Stat. 138 ......................................................................... 5
Act of Aug. 12, 1790, ch. 47, 1 Stat. 186 ................................................................... 5, 6
Act of May 27, 1796, ch. 31, 1 Stat. 474 ........................................................................ 8
iv
TABLE OF AUTHORITIES – cont’d
Page(s)
An Act to Provide for the Valuation of Lands and Dwelling-Houses,
and the Enumeration of Slaves within the United States,
1 Stat. 580 (1798) ..................................................................................................... 7
86 Fed. Reg. 61402, (Nov. 5, 2021) .............................................................................. 12
U.S. Const. art. I, § 1 ..................................................................................................... 1
U.S. Const. art. I, § 2, cl. 3............................................................................................. 6
21 U.S.C. § 811(h)(1) .................................................................................................... 10
29 U.S.C. § 651(b) ........................................................................................................ 11
29 U.S.C. § 655 ......................................................................................................... 9, 11
29 U.S.C. § 665(c)(1) .................................................................................................. 2, 8
42 U.S.C. § 7409(b)(1) .................................................................................................. 10
Books, Articles, and Other Authorities
Kevin Arlyck, Delegation, Administration, and Improvisation,
97 Notre Dame L. Rev. (forthcoming 2022) ............................................................. 4
Christine Kexel Chabot, The Lost History of Delegation at the Founding,
Ga. L. Rev. (forthcoming) ..................................................................................... 4, 6
William Hamilton Cowles, State Quarantine Laws and the Federal
Constitution, 25 Am. L. Rev. 45 (1891) .................................................................... 7
James Madison, The Federalist No. 47
(Clinton Rossiter ed., 2003) ...................................................................................... 4
v
TABLE OF AUTHORITIES – cont’d
Page(s)
Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding,
121 Colum. L. Rev. 277 (2021) ............................................................................. 4, 8
Nicholas R. Parrillo, A Critical Assessment of the Originalist Case
Against Administrative Regulatory Power: New Evidence from the
Federal Tax on Private Real Estate in the 1790s,
130 Yale L.J. 1288 (2021) ................................................................................. 3, 6, 7
1
INTEREST OF AMICUS CURIAE1
Constitutional Accountability Center (CAC) is a think tank, public interest law
firm, and action center dedicated to fulfilling the progressive promise of the Consti-
tution’s text and history. CAC has an interest in ensuring that the Constitution is
read, consistent with its text and history, to allow Congress to delegate federal ad-
ministrative agencies the authority and flexibility to craft effective responses to na-
tional crises, including the COVID-19 pandemic.
INTRODUCTION AND
SUMMARY OF ARGUMENT
Article I of the Constitution provides that “[a]ll legislative Powers herein granted
shall be vested in a Congress of the United States.” U.S. Const. art. I, § 1. This Court
has long interpreted that clause to permit Congress to delegate its legislative author-
ity so long as it “lay[s] down . . . an intelligible principle to which the person or body
authorized to [act] is directed to conform.” Whitman v. Am. Trucking Assocs., 531
U.S. 457, 472 (2001) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.
394, 409 (1928)).
1 Under Rule 37.6 of the Rules of this Court, amicus states that no counsel for a party authored this
brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than amicus or its counsel made a monetary
contribution to its preparation or submission.
2
Time and again, this Court has reminded us that this standard is “not demand-
ing.” Gundy v. United States, 139 S. Ct. 2116, 2129 (2019). Indeed, in the entirety of
our nation’s history, this Court struck down statutes on the ground that they imper-
missibly delegated legislative authority to the executive branch only two times, both
in 1935. See Pan. Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495 (1935). Furthermore, Founding-era Congresses
regularly delegated broad discretionary authority to executive officials in their efforts
to tackle some of the most pressing problems facing our young nation, and many of
those delegations generated little or no debate.
Notwithstanding this history and precedent, Applicants argue that the Emer-
gency Temporary Standard (“ETS”) issued by the Occupational Safety and Health
Administration (“OSHA”) should be stayed, in part on the ground that the Occupa-
tional Safety and Health Act of 1970 (“the Act”) would contain an unconstitutional
delegation of legislative power if interpreted to authorize the ETS. This argument
has no grounding in the Constitution’s text and history, and presents a vision of the
nondelegation doctrine that would “cripple the government, and render it unequal to
the object for which it is declared to be instituted.” Gibbons v. Ogden, 22 U.S. 1, 188
(1824). The requirement in the Act that an ETS be “necessary to protect employees”
3
from “grave danger from exposure to substances or agents determined to be toxic or
physically harmful or from new hazards” provides meaningful, judicially reviewable
boundaries—i.e., an intelligible principle—to guide OSHA’s authority. 29 U.S.C.
§ 665(c)(1).
ARGUMENT
I. The Founders Permitted Broad Delegations of Legislative Authority to
Executive Officials.
The Constitution’s Vesting Clauses parcel out legislative, executive, and judicial
powers to the three branches of government, but their text is silent as to whether
these powers may be shared or delegated. Thus, when it comes to the nondelegation
doctrine, the Constitution’s text only gets us so far, making the debates and practices
of early Congresses critical to a proper understanding of the scope of the nondelega-
tion doctrine at the Founding.
Although the Framers barely discussed the precise issue of delegation at the Con-
stitutional Convention, see Nicholas Parrillo, A Critical Assessment of the Originalist
Case Against Administrative Regulatory Power: New Evidence from the Federal Tax
on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1299 n.42 (2021) (“the press-
ing issue at that time was legislative self-aggrandizement, not legislative abdica-
tion”), they grappled with the challenge of defining legislative power and its
4
relationship to executive power. James Madison expressed concern about the “whole
power of one department” being wielded “by the same hands which possess the whole
power of another department.” The Federalist No. 47, at 299 (James Madison) (Clin-
ton Rossiter ed., 2003). Sometimes referred to as an “anti-alienation principle,” see
Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum.
L. Rev. 277, 307 (2021), Madison’s concern was fundamentally different from Appli-
cants’ vision of the nondelegation doctrine. And arguments for stricter limits on del-
egation at the Founding arose only “occasionally in early legislative debates” and
“clearly did not have much purchase,” see Kevin Arlyck, Delegation, Administration,
and Improvisation, 97 Notre Dame L. Rev. (forthcoming 2022) (manuscript at 64),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3802760, as demonstrated by
the Founding-era Congresses’ broad delegations of legislative authority. Several ex-
amples follow.
A. Congress Delegated Broad Legislative Authority to Address the Na-
tional Debt.
Delegation of legislative authority emerged as the First Congress’s solution to
one of the most urgent problems facing the nation in the wake of the Revolutionary
War: a “potentially insurmountable” national debt. Christine Kexel Chabot, The Lost
History of Delegation at the Founding, Ga. L. Rev. (forthcoming)
5
(manuscript at 1), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3654564.
Legislators made payment of that debt possible by delegating borrowing and spend-
ing power to the executive branch.
In one of the first laws passed to address the national debt, Congress authorized
the president to make “contracts respecting the . . . debt as shall be found for the
interest of the said States,” Act of Aug. 4, 1790, ch. 34 § 2, 1 Stat. 138, 139 (emphasis
added), and to borrow up to $12 million (1.286 trillion in today’s dollars) in “new
loans” to pay off foreign obligations, id. The only limit guiding the president’s discre-
tion was “[t]hat no engagement nor contract shall be entered into which shall pre-
clude the United States from reimbursing any sum or sums borrowed within fifteen
years.” Id.
The First Congress also passed a law to address the domestic debt, and that law
too delegated broad legislative authority to the executive branch. See Act of Aug. 12,
1790, ch. 47, 1 Stat. 186, 186-87. The law vested authority in the president and a
body known as the Sinking Fund Commission to purchase debt “in such manner, and
under such regulations as shall appear to them best calculated to fulfill the intent of
this act.” Id. (emphasis added). The only limits Congress imposed on this authority
were that the purchases of securities had to be at market price, “if not exceeding the
6
par or true value thereof,” id. § 1, and money applied to those purchases was limited
to “surplus . . . as shall remain after satisfying the several purposes for which appro-
priations shall have been made by law,” id. Significantly, when one legislator raised
a constitutional objection to this proposed delegation, his peers decided that capping
the amount to be borrowed would suffice to “satisfy its constitutional requirements,”
reflecting an understanding that is “close to today’s intelligible principle require-
ment.” Chabot, supra, at 25.
B. Congress Delegated Broad Legislative Authority in Connection with
the Direct Tax of 1798.
Several years after the market crash of 1792, the United States again faced the
threat of a fiscal shortfall, prompting Congress in 1798 to exercise for the first time
its power to levy a “direct tax” on property. Parrillo, supra, at 1303. To implement
that tax, Congress delegated broad legislative authority to what was the equivalent
of a large modern-day administrative agency.
To comply with the constitutional requirement that “direct Taxes shall be appor-
tioned among the several States,” U.S. Const. art. I, § 2, cl. 3, the Fifth Congress
established an “administrative army” with over 1,600 “foot soldiers” to estimate the
value of “literally all private real estate in every state, with only minor exemptions,”
7
Parrillo, supra, at 1331-33, and with the only legislative guidance being to assess the
property’s “worth in money,” id. at 1333.
And to ensure that valuations were consistent, Congress established a board of
federal tax commissioners in each state and empowered them “to revise, adjust and
vary, the [assessor’s] valuations of lands and dwelling-houses in any assessment dis-
trict, by adding thereto, or deducting therefrom, such a rate per centum, as shall
appear to be just and equitable.” An Act to Provide for the Valuation of Lands and
Dwelling-Houses, and the Enumeration of Slaves within the United States § 22, 1
Stat. 580, 589 (1798) (emphasis added). The only further limitation the statute im-
posed on these federal administrators was “that the relative valuations of the differ-
ent lots . . . shall not be changed or affected.” Id. The statute did not define the
phrase “just and equitable,” and each federal board’s revisions were final and not
subject to judicial review. Notably, no one objected that this delegation was uncon-
stitutional. See Parrillo, supra, at 1312.
C. Congress Delegated Broad Legislative Authority in the Nation’s
First Quarantine Law.
The nation’s first quarantine law, enacted in response to a series of yellow fever
epidemics in the late eighteenth century, see William Hamilton Cowles, State Quar-
antine Laws and the Federal Constitution, 25 Am. L. Rev. 45, 69 (1891), provides yet
8
another example of a Founding-era delegation of legislative authority, empowering
the President “to aid in the execution of quarantine, and also in the execution of the
health laws of the states, respectively, in such manner as may to him appear neces-
sary.” Act of May 27, 1796, ch. 31, 1 Stat. 474 (emphasis added). The 1796 Act’s
necessity requirement—closely resembling OSHA’s requirement that a measure be
“necessary to protect employees” from “grave danger,” 29 U.S.C. § 665(c)(1)—was ap-
proved “without a hint of delegation-related objections,” Mortenson & Bagley, supra,
at 358.
* * *
These are but a few examples of the many instances in which Congress delegated
broad legislative authority without significant nondelegation objections. Further-
more, in the few instances when legislators did raise such objections, they made clear
that legislative guidance—an “intelligible principle” from Congress—could validate a
potentially problematic delegation.
II. The Statute at Issue Here, as Understood to Authorize Implementation
of the ETS, Does Not Violate the Nondelegation Doctrine.
“Congress does not violate the Constitution merely because it legislates in broad
terms.” Touby v. United States, 500 U.S. 160, 165 (1991); see Am. Trucking, 531 U.S.
at 474-75 (“[W]e have ‘almost never felt qualified to second-guess Congress regarding
9
the permissible degree of policy judgment that can be left to those executing or ap-
plying the law.’” (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia,
J., dissenting))). A statute is “constitutionally sufficient if Congress clearly delineates
the general policy, the public agency which is to apply it, and the boundaries of this
delegated authority.” Mistretta, 488 U.S. at 372-73.
The law at issue here comfortably passes that test. It gives the Secretary of La-
bor, acting through OSHA, broad authority to establish “standards” for health and
safety in the workplace, and instructs the agency to employ the “standard which as-
sures the greatest protection of the safety or health of the affected employees.” See
29 U.S.C. § 655. It also authorizes OSHA to issue standards on an emergency basis
when “necessary to protect employees” from “grave danger from exposure to sub-
stances or agents determined to be toxic or physically harmful or from new hazards.”
Id. § 655(c).
Notably, this Court has approved significantly broader “delegations to various
agencies to regulate in the ‘public interest.’” Gundy, 139 S. Ct. at 2129 (collecting
cases). And it has recognized on multiple occasions that the protection of public
health and safety is an intelligible principle sufficient to make a delegation constitu-
tional. See, e.g., Touby, 500 U.S. at 165; Am. Trucking, 531 U.S. at 475-76. For
10
example, in Touby, this Court held that a provision of the Controlled Substances Act
delegating authority to the Attorney General to temporarily designate a drug as a
controlled substance “to avoid an imminent hazard to the public safety,” 21 U.S.C.
§ 811(h)(1), laid down a sufficient intelligible principle, see Touby, 500 U.S. at 165.
Similarly, in American Trucking, it held that a statute permitting the Environmental
Protection Agency to set primary ambient air-quality standards “requisite to protect
the public health” with “an adequate margin of safety,” 42 U.S.C. § 7409(b)(1), was
constitutional, see Am. Trucking, 531 U.S. at 475-76.
In their emergency application for stay, some Applicants rely heavily on
Schechter Poultry, see, e.g., Emergency App. for Stay, BST Holdings, LLC v. OSHA,
No. 21A248 (Dec. 18, 2021), at 34-37, but that case actually affirmed Congress’s abil-
ity to broadly delegate power, so long as the delegation was accompanied by stand-
ards to guide administrative discretion. Significantly, despite Applicants’ conten-
tions, this Court’s ruling in Schechter Poultry did not hinge on the fact that “fair com-
petition” was undefined. Id. at 36. Rather, as this Court has summarized, the statute
ran afoul of the Constitution because “Congress had failed to articulate any policy or
standard to confine discretion,” Gundy, 139 S. Ct. at 2129 (internal quotation marks
omitted); accord Am. Trucking, 531 U.S. at 474, leaving the president with “virtually
11
unfettered” authority, Schechter Poultry, 295 U.S. at 530. Indeed, this Court con-
trasted that statute with other laws using broad phrases to guide executive authority,
emphasizing that the latter statutes provided “standards to guide determination,”
required “findings” and “evidence” before executive action, and guided administrative
decision-making with “statutory restrictions adapted to the particular activity.” See
id. at 540 (citing cases that permitted Congress to delegate the power to act “in the
public interest” and “if public convenience, interest or necessity requires”).
The Act here provides sufficient guidance. OSHA can promulgate an ETS only if
it concludes that the ETS is “necessary to protect employees” from “grave danger from
exposure to substances or agents determined to be toxic or physically harmful or from
new hazards.” 29 U.S.C. § 655(c). And the Act provides standards to guide this de-
termination, ensuring that OSHA’s authority is not “unfettered.” Schechter Poultry,
295 U.S. at 542. Indeed, it instructs OSHA to issue standards that ensure “safe and
healthful working conditions,” 29 U.S.C. § 651(b), requires the agency to publish a
statement of reasons for an ETS, id. § 655(e), and mandates that OSHA provide
“[a]ny affected employer” the opportunity to apply for a variance from any standard,
id. § 655(d). See In re MCP NO. 165, Occupational Safety & Health Admin., No. 21-
4027, 2021 WL 5989357, at *36 (6th Cir. Dec. 17, 2021) (concluding that “Congress
12
applied an ‘intelligible principle’ when it directly authorized OSHA to exercise this
delegated authority in particular circumstances”). By promulgating an ETS that is
estimated to “save over 6,500 worker lives and prevent over 250,000 hospitalizations”
due to COVID-19 in the workplace, COVID-19 Vaccination and Testing, 86 Fed. Reg.
61402, 61408 (Nov. 5, 2021), OSHA is simply fulfilling its mandate to ensure “safe
and healthful working conditions,” consistent with the guidance Congress has pro-
vided.
CONCLUSION
For the foregoing reasons, this Court should deny the emergency applications.
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
MIRIAM BECKER-COHEN
SMITA GHOSH**
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
December 23, 2021 * Counsel of Record
** Not admitted in D.C.;
supervised by
principals of the firm
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