In OSH Act Constitutionality Challenge, Texas Produce Groups Try Their Luck in Fifth Circuit

The challenge to the OSH Act by two produce associations has the potential to reshape the future of workplace safety regulation and again test the outer limits of congressional delegation to administrative agencies.

“If at first you don’t succeed, then try, try again.” That’s the clear message behind a newly filed constitutional challenge to the Occupational Safety and Health Act—this time in the Northern District of Texas. Two Texas produce associations argue in the attached complaint that Congress violated the non-delegation doctrine when it authorized OSHA to issue whatever workplace safety standards it deems “reasonably necessary or appropriate.”

More specifically, the plaintiffs argue that such open-ended discretion violates the Constitution’s separation of powers doctrine by allowing the executive branch to wield legislative power.

The legal theory is not new: the US Supreme Court recently declined to review the Sixth Circuit’s decision in Allstates Refractory Contractors LLC v. Su, which upheld OSHA’s statutory authority against a nearly identical challenge.

Rather than pursue the same path as Allstates, the two produce associations have turned to the Fifth Circuit in what may be an attempt to receive a more receptive audience given the court’s recent rulings invalidating agency action on structural constitutional grounds.

If the Fifth Circuit diverges from the Sixth Circuit’s reasoning, it would set up a circuit split that the Supreme Court would almost certainly have to resolve. If that happens, the Supreme Court may be required to address, again, whether the OSH Act’s delegation of power to OSHA contains the “intelligible principle” the Constitution requires.

The Court previously addressed the OSH Act’s delegation clauses in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980), a plurality decision that held OSHA possessed the power “to promulgate health and safety standards only where a significant risk of harm exists.”

Regardless of how this challenge unfolds, it has the potential to reshape the future of workplace safety regulation and test—once again—the outer limits of congressional delegation to administrative agencies.

The case is Texas International Produce Association et al. v. Occupational Safety and Health Administration et al., 2:25-cv-00261, in the US District Court for the Northern District of Texas—as with Allstates we will be keeping an eye on this matter as it progresses.