Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.
Issue 6
State Action and the Thirteenth Amendment
The Thirteenth Amendment is unique among constitutional provisions in directly regulating private activity. The amendment abolishes slavery both in the familiar antebellum form, in which it was established by the state, and as it might be perpetuated by private individuals, either through their own coercive activity or through the exercise of common law rights. This private action interpretation of the amendment became established soon after the amendment was ratified, and it has remained unquestioned since. This Essay considers the arguments for the amendment’s coverage of private action based on its text, its origins, and the congressional debates over its meaning. The text of the amendment itself makes no reference to the states, unlike the Fourteenth Amendment, as it was modeled on territorial legislation in which Congress exercised plenary authority over private behavior. The congressional debates over the amendment reveal that it was designed to eliminate all forms of slavery, to alter the existing distribution of power between the states and the federal government, and to abolish slavery as a system of property rights—including property rights exercised by private individuals. All of this was accomplished by the self-executing provisions of section 1, but the private action interpretation of the amendment also extends to section 2, which grants Congress the power to enforce the amendment “by appropriate legislation.” This grant of legislative authority provides indirect, but crucial support, for modern civil rights legislation that prohibits private discrimination. Section 2 should not be narrowly construed in an effort to find a restraint on federal power analogous to the state action doctrine under the Fourteenth Amendment. The influence of the Thirteenth Amendment has been—and should continue to be—as broad as the problems of slavery to which it was originally addressed.
Linkage and the Deterrence of Corporate Fraud
Corporate fraud is often presumed to be the type of crime that can be deterred. Those who embrace deterrence as a goal of law enforcement, however, often ignore the tradeoffs between the deterrence of potential offenders and the deterrence of those “mid-fraud perpetrators” who are already mid-way through illicit schemes when the government announces a change in policy. Unlike potential offenders, mid-fraud perpetrators have no incentive to cease criminal conduct in response to increases in sanctions or likelihood of detection. This is true because their cessation of future misconduct increases the probability that their prior conduct will be detected and punished. If a CFO has lied to a company’s shareholders in Quarter 1 about the company’s profits, his cessation of lying in Quarter 2 substantially increases the chances that someone will focus on and detect his previous lies in Quarter 1. The problem with linkage is that criminal sanctions aimed primarily at deterring new offenders may also encourage “ongoing” offenders to invest in techniques that decrease the likelihood of detection. Policymakers contemplating changes in law enforcement policy should therefore consider the linkage problem in calculating the benefits and drawbacks of different law enforcement strategies.