In Florida and elsewhere, companies have argued OSHA (as federal law) overrides State laws allowing storage of firearms in locked cars in workplace parking lots. I think the argument relates to OSHA's vague statutory duty to make a workplace safe, rather than any regulations issued, so the following may or may not be relevant, but...
Cass Sunstein, an excellent thinker (apart from being no friend of the 2A, that is) has come out with an article arguing that OSHA is unconstitutional. Congress is supposed to make federal law. In practice, it more often enacts a broad statutory regime, and tells an agency to promulgate regulations to carry it out. That way Congress doesn't have to work out the details of what it is ordering people to do, nor accept the political fallout of those orders. The courts give Congress a LOT of leeway to do that, but at some point there is simply too much delegation to the agency to pass muster. Sunstein's article argues that OSHA goes over the line, handing the Secretary power to "do good things" without saying whether he's supposed to balance them against cost or feasibility, or focus on significant risks, etc..
Sunstein may be a "good thinker" as you say, but his good thinking is often employed to destructive ends. He and his cohorts have coined the phrase "libertarian paternalism" which they claim describes a system whereby people are "nudged" rather than coerced to follow a certain path.
But just as a rose by any other name would smell as sweet, rotten eggs would smell as bad. Whatever it is called, paternalism still stinks. It is still elitist and coercive.
The great paternalists of the 19th Century were slave holders.
I'd still welcome his support for upholding the Constitution but I don't think he is serious. How could he be when he conveniently substitutes his personal preference for the plain language of our sacred Bill of Rights?
Posted by: Flash Gordon at December 12, 2008 08:20 AM
The legitimacy of the scheme wherein Congress sub-delegates legislative powers to the Executive branch dates to the militia case Martin v. Mott (1827). Lawyers for a guy charged with failing to appear for federal militia duty in the War of 1812 when called by the President argued that the power to call forth the militia was delegated to Congress, and that the 1795 law conferring that power on the President was thus unconstitutional. The Marshall Court decided that Congress could legislatively assign a delegated power to the president, thus the president had sole authority to decide when an emergency existed and to call out the militia.
Posted by: jnheath at December 12, 2008 10:11 AM
Not to mention the years and cost of trying to figure out the subjective risk of these laws and implementing regulation. Not just OSHA but sexual harassment, HAZMAT, Asbestos and oil pollution laws. It took years and lots of court cases to come up with some reasonable expectation that your efforts to comply wouldn't result in fines and jail time if the "inspector/investigator" had a different interpretation or changed their interpretation.
What is worse is that many times not trying to comply while not being a blatant violator of the spirit of the law was better than indicating you had knowledge of the regulations when fine time came around. A case where ignorance was an excuse.
Posted by: JKB at December 12, 2008 10:34 AM
I don't get it. Why would OSHA be unconstitutional and EPA wouldn't?
Or is that the point...
Posted by: Jim D. at December 12, 2008 09:25 PM
Well, we can all forget about taking our guns to work as soon as Obama appoints a new OSHA administrator.
Posted by: Critic at December 13, 2008 02:55 PM
Actually, OSHA is another unconstitutional federal agency. The lie that the commerce clause extends to things the "effect" or "affect" commerce is total BS made up by a bunch of lying thieves in black robes. Marshall was the worst because he was either a grammarical illiterate or a liar. The use of the word among DOES NOT MEAN "extends into" as Marshall would have it. It is simply the grammatically correct way to discuss more than two states. Marshall made a big "to do" about the Framers not using the word "between", a word that is grammatically incorrect. SO he was either stretching the cloth to cover the lie OR he was an ignorant boob. Take your choice.
Once more we have the federal govt interfering in an area left totally under state control.
Also note that the Constitution does not provide for Congress to "regulate commerce among the People", which would be necessary to extend the clause to the general public seeing that the Framers saw the need to specify, foreign Nation, the States, and indian Tribes.
It's time to get out you copy of the Constitution and really read it, putting all that garbage you learned during your "educational" experiences out of your mind. THEY lied to you. Get over it. It ain't like THEY said it was.
TIOCFAIDH ÁR LÁ!
Posted by: FWB at December 15, 2008 10:40 AM
EPA is unconstitutional also as are IMO 99% of the federal agencies. The EPA is consistently and constantly involved in matters that are entirely in-state. Most is based on the commerce clause and that clause has been corrupted by the very people that were hird to protect it but what do you get when you put the fox in charge of the henhouse.
If we take the Constitution literally, the Militia are to "execute the laws of the Union" which would seem to negate the use of any other agency, group, or means. Now the courts say that "the" doesn't mean "all", it means "some". Ten we have to determine which "some". Of course, this is all BS. Neither the courts nor the Congress nor the executive have any authority to decide what anything in the Constitution means. If they did they would simply define the document out of existence, show that the Framers duped the people, and that totalitarianism is alive and well in the U.S.
Whoops! Looks like theose bastards in government have pulled the wool over our eyes once more.
All of this comes about because the courts lie, the schools lie, and the ignorant masses believe because the masses are happy sitting in a pile of crap as long as they have their beer, their NASCAR, and their girly magazines.
Posted by: fwb at December 15, 2008 10:55 AM