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 Administration the power to enact and enforce any workplacesafety standard that it deems “reasonably necessary or appropriate.” 29 U. S. C. §§652(8), 655(b). This petition asks 

us to consider whether that grant of authority is an unconstitutional 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 forbids 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 delegation 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 authority to the Occupational Safety and Health Administration under this “intelligible principle” test, over Judge Nalbandian’s dissent. 79 F. 4th 755, 760 (2023). 

I continue to adhere to my view that the intelligible principle 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 intelligible principle test “has no basis in the original meaning of the Constitution, in history, or even in [our precedents]”). This case exemplifies the problem. Congress

purported to empower an administrative agency to impose

whatever workplace-safety standards it deems “appropriate.” That power extends to virtually every business in the 

United States. See §654(a)(2); §652(5) (defining the regulated “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 objectionable if Congress gave the Internal Revenue Service authority 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 reconsidering 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 denial 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.