American Textile Manufacturers Institute, Inc. v. Donovan

Justice Rehnquist, with whom The Chief Justice joins,

dissenting.

A year ago I stated my belief that Congress in enacting § 6 (b)(5) of the Occupational Safety and Health Act of 1970 unconstitutionally delegated to the Executive Branch the authority to make the “hard policy choices” properly the task of the legislature. Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607, 671 (1980) (concurring in judgment). Because I continue to believe that the Act exceeds Congress’ power to delegate legislative authority to nonelected officials, see J. W. Hampton & Co. v. United *544 States, 276 U. S. 394 (1928), and Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), I dissent.

I will repeat only a little of what I said last Term. Section 6 (b)(5) provides in pertinent part:

“The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” (Emphasis added.)

As the Court correctly observes, the phrase “to the extent feasible” contains the critical language for the purpose of these cases. We are presented with a remarkable range of interpretations of that language. Petitioners contend that the statute requires the Secretary to demonstrate that the benefits of its “Cotton Dust Standard,” in terms of reducing health risks, bear a reasonable relationship to its costs. Brief for Petitioners in No. 79-1429, pp. 38-41. Respondents, including the Secretary of Labor at least until his postargument motion, counter that Congress itself balanced costs and benefits when it enacted the statute, and that the statute prohibits the Secretary from engaging in a cost-benefit type balancing. Their view is that the Act merely requires the Secretary to promulgate standards that eliminate or reduce such risks “to the extent . . . technologically or economically feasible.” Brief for Federal Respondent 38; Brief for Union Respondents 26-27. As I read the Court’s opinion, it takes a different position. It concludes that, at least as to the “Cotton Dust Standard,” the Act does not require the Secretary to engage in a cost-benefit analysis, which suggests of course that the Act permits the Secretary to undertake such an analysis if he so chooses. Ante, at 510-512.

*545 Throughout its opinion, the Court refers to §6 (b)(5) as adopting a “feasibility standard” or a “feasibility requirement.” Ante, at 508-522. But as I attempted to point out last Term in Industrial Union Dept. v. American Petroleum Institute, supra, at 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.” Last year, Justice Powell reflected that *546 “one might wish that Congress had spoken with greater clarity.” American Petroleum Institute, 448 U. S., at 668 (Powell, J., concurring in part and in judgment). I am convinced that the reason that Congress did not speak with greater “clarity” was because it could not. 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.

The Court seems to argue that Congress did make a policy choice when it enacted the “feasibility” language. Its view is that Congress required the Secretary to engage in something called “feasibility analysis.” Ante, at 509. But those words mean nothing at all. They are a “legislative mirage, appearing to some Members [of Congress] but not to others, and assuming any form desired by the beholder.” American Petroleum Institute, supra, at 681. Even the Court does not settle on a meaning. It first suggests that the language requires the Secretary to do what is “capable of being done.” Ante, at 508-509. But, if that is all the language means, it is merely precatory and “no more than an admonition to the Secretary to do his duty . . . .” Leg. Hist. 367 (remarks of Sen. Dominick). The Court then seems to adopt the Secretary’s view that feasibility means “technological and economic feasibility.” But there is nothing in the words of § 6 (b)(5), or their legislative history, to suggest why they should be so limited. One wonders why the “requirement” of § 6 (b)(5) could not include considerations of administrative or even political feasibility. As even the Court recognizes, when Congress has wanted to limit the concept of feasibility to technological and economic feasibility, it has said so. Ante, at 510. Thus the words “to the extent feasible” provide no meaningful guidance to those who will administer the law.

*547 In believing that § 6 (b) (5) amounts to an unconstitutional delegation of legislative authority to the Executive Branch, I do not mean to suggest that Congress, in enacting a statute, must resolve all ambiguities or must “fill in all of the blanks.” Even the neophyte student of government realizes that legislation is the art of compromise, and that an important, controversial bill is seldom enacted by Congress in the form in which it is first introduced. It is not unusual for the various factions supporting or opposing a proposal to accept some departure from the language they would prefer and to adopt substitute language agreeable to all. But that sort of compromise is a far cry from this case, where Congress simply abdicated its responsibility for the making of a fundamental and most difficult policy choice — whether and to what extent “the statistical possibility of future deaths should ... be disregarded in light of the economic costs of preventing those deaths.” American Petroleum Institute, supra, at 672. That is a “quintessential legislative” choice and must be made by the elected representatives of the people, not by nonelected officials in the Executive Branch. As stated last Term:

“In drafting § 6 (b)(5), Congress was faced with a clear, if difficult, choice between balancing statistical lives and industrial resources or authorizing the Secretary to elevate human fife above all concerns save massive dislocation in an affected industry. That Congress recognized the difficulty of this choice is clear .... That Congress chose, intentionally or unintentionally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected.” 448 U. S., at 685.

In sum, the Court is quite correct in asserting that the phrase “to the extent feasible” is the critical language for the purposes of these cases. But that language is critical, not because it establishes a general standard by which those charged *548 with administering the statute may be guided, but because it has precisely the opposite effect: in failing to agree on whether the Secretary should be either mandated, permitted, or prohibited from undertaking a cost-benefit analysis, Congress simply left the crucial policy choices in the hands of the Secretary of Labor.* As I stated at greater length last Term, I believe that in so doing Congress unconstitutionally delegated its legislative responsibility to the Executive Branch.

Contrary to the suggestion of the Court, ante, at 541, n. 75, I do not argue that the existence of several plausible interpretations of the statute is a ground for invoking the delegation doctrine: I invoke the delegation doctrine because Congress failed to choose among those plausible interpretations.