norml23 - Page 72
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woutd make such a "sweeping deJegation of
legislative power" that it might be
unconstitutiona_ under the Court's reasonhg in
Schechter Poultry Corp. v. United States, 295 U.S.
495, 539 (1935), and Panama Refining Co. v. Ryan,
293 U.S. 388 (1935)o A construction of the statute
that avoids this kind of open-ended grant should
certainJy be favored°
U.S. , 100 S.Ct. at 2866.
Chief Justice Burger, in addition to concurring in the plurality
opinion, wrote separately to "stress the differing functions of the
courts and the administrative agency with respect to such health and
safety regulations." Ido at 2874. The Chief Justice noted that
"Congress is the uttimate regulator," and that the court's function is
to interpret the statute and its implementing regulations "with the
objective of insuring that in promulgating health and safety standards
the Secretary has given reasoned consideration to each of the pertinent
factors and has complied with statutory commands°" (Citation omitted.)
The Chief Justice closed his brief concurring opinion-with the warning
that:
IT]he Secretary is west admonished to remember that
a heavy responsibility burdens his authority.
Inherent in this statutory scheme is authority to
refrain from regulation of insignificant or de
minimis risks.
Mr. Justice Powell also concurred Jn most of the plurality
opinion, but began his separate concurrence by stating that he did not
necessarily agree with the piurality's characterizi_tions of the
findings tendered by the Agency, and by noting aiso that he was
reserving judgment on whether granting OSHA the latitude that it
desired would violate the nondelegation doctrine of Schechter Poultry
and Panama Refining. The thrust of Powell's concurrence reflects even
more stringent scrutiny of OSHA's actual findings, on the ground that
the agency did not even attempt to carry its burden of proof on the
threshold question of significance of risk, Mr. Justice Powell held
that OSHA had tried to meet that burden, but had failed to do so. Id.
at 2876-2877.
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