CPR Scholars Testify on Judicial Deference to Agency Discretion
Later today, not one but two CPR Member Scholars will testify today before the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law.
Emily Hammond and Richard J. Pierce both offer some perspective on the limits and scope of judicial deference to federal regulatory agencies. Pierce sketches out the long history of jurisprudence on the subject, noting that,
Until late in the Nineteenth century, courts could not and did not review the vast majority of agency actions. The Supreme Court held that courts lacked the power to review exercises of executive branch discretion. A court could review an action taken by the executive branch (or a refusal to act) only in the rare case in which a statute compelled an agency to act in a particular manner. In that situation, the court was simply requiring the agency to take a non-discretionary ministerial action.
He then traces the evolution of the Supreme Court’s view, arriving at the landmark Chevron vs. NRDC decision, in which the court framed what is to regulatory scholars a now very familiar test. As Hammond describes it,
The test provides that when a court reviews an agency’s interpretation of a statute it …
Over the weekend, the White House Office of Management and Budget (OMB) released the final draft of its annual report on the costs and benefits of federal regulation, which purports to provide a reasonably complete picture of the total impact that federal regulations have on the U.S. economy. This year’s final report finds that federal regulations generated total benefits in the range of $216 billion to $812 billion (in 2001 dollars; in 2010 dollars, the range recalculates to $261 billion to $981 billion) while imposing total costs in the range $57 billion to $85 billion (in 2001 dollars; in 2010 dollars, the range recalculates to $68 billion to $103 billion). According to the report, then, federal regulations make society better off, and significantly so, producing total net benefits in the range of $131 billion to $755 billion (in 2001 dollars; in 2010 dollars, the net …
I was recently a panelist at a Senate workshop on regulatory capture sponsored by the Administrative Conference of the United States (ACUS). In an earlier post about this event, I wrote about the potential of enhanced transparency to reduce regulatory capture, which I discussed at the workshop. Conservative commentators at the workshop argued that agencies are captured by public interest groups as well as by regulated entities. They contended that Congress should thus pass the REINs Act to reduce capture from both types of regulatory stakeholders. Of course, their fears of public interest capture are greatly overblown, as the potential for these groups to capture agencies is far more hypothetical than real. But the real problem is that the REINS Act, if it became law, would increase regulatory capture, not decrease it.
My earlier post explained that the imposition of budget cuts by Congress on regulatory agencies …
The subject of regulatory capture was back on Capital Hill last week as the result of a briefing sponsored by Administrative Conference of the United States (ACUS). In 2010, I testified concerning regulatory capture in a Senate hearing chaired by Senator Sheldon Whitehouse (D-RI), but in the midst of the broad-scale conservative assault on regulation, the issue hasn’t gotten nearly the attention it deserves. That’s unfortunate for a simple reason. As Rena Steinzor and I establish in our book, many aspects of the regulatory system are downright dysfunctional, and we identified regulatory capture as a significant source of this dysfunction.
Regulatory capture is a complex issue and determining how best to reduce the amount of capture is challenging, as a helpful book on the subject edited by Dan Carpenter and David Moss establishes. Nevertheless, there are some steps that Congress or the President can take …
CPR Vice President Sid Shapiro is among the many distinguished panelists participating this monring in a forum called "Regulatory Capture in the 21st Century." The forum is hosted by the Administrative Conference of the United States (ACUS), an independent federal agency that works to provide Congress with advice on improving the administrative system. The event will feature remarks from Senators Sheldon Whitehouse (D-RI), Elizabeth Warren (D-MA), and Mike Lee (R-UT).
Professor Shapiro will participate in a panel that looks at regulatory capture in the federal rulemaking process. Hehas written extensively on regulatory capture, and testified before the Senate Judiciary Committee on the subject in 2010. A second panel will look at how regulatory capture impacts agency enforcement actions.
The forum runs from 9:30 am to 12:00 noon in Room 106 of the Dirksen Senate Office Building.
Yesterday, the Republican members of the Senate Homeland Security and Government Affairs Committee (HSGAC)—the Senate committee with primary oversight jurisdiction over the regulatory system—published a report detailing their shock and dismay over a Wall Street Journal story alleging that the White House "may have inappropriately influenced" the Federal Communications Commission's (FCC) so-called "net neutrality" rule. In releasing the report, Committee Chairman Senator Ron Johnson (R-WI) could barely contain his contempt: "It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy."
Among other things, the Senate HSGAC report complains about what it describes as secret communications between White House staff and FCC staff about how the rule should be …
In case you didn’t get the memo: President Obama is entering the last year of his final term in office, so now we’re all supposed to be panicking over a dreaded phenomenon known as “midnight regulations.” According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last few days in order to burnish their legacy or make concrete several of their policy priorities in ways that would be difficult for a successor—presumably from a different party—to undo. The legend further holds that because the rules are “rushed,” they are somehow of inferior quality.
Over the last few days, several antiregulatory commentators have issued dire warnings about midnight regulations (see here and here), and even the House Science Committee went to the trouble of holding a hearing on the subject just the other day.
Scared yet …
Last month, Politico’s Michael Grunwald published what I suspect is going to be a first draft of history’s judgment of Barack Obama’s presidency. He writes that “a review of his record shows that the Obama era has produced much more sweeping change than most of his supporters or detractors realize.”
Grunwald runs a long list of the President’s achievements, including Obamacare, the automobile industry bailout, the stimulus bill that kept the economy from falling off of a cliff, an overhaul of the boondoggle that was the federal student loan program, rejection of the Keystone XL pipeline, serious (at last!) steps to combat climate change paving the way for an international agreement that could actually make a difference, an energy revolution that has significantly reduced U.S. reliance on dirty coal and foreign oil while boosting production and use of renewables, the end of …
Still just a few weeks into the new year, both chambers of Congress are making it clear that attacks on our system of regulatory safeguards will remain a top priority in 2016. The GOP-controlled House of Representatives has already passed—along partisan lines—two antiregulatory measures, and the Senate appears poised to follow suit with their own antiregulatory package expected to drop sometime this week.
CPR Member Scholars and staff are tracking all of these developments, working to educate policymakers about how these bills would make it all but impossible for protector agencies like the EPA and the FDA to fulfill their statutory mission of safeguarding people and the environment against unacceptable risks. (A summary of their criticisms of the two House bills can be found in a series of letters that were sent to House leadership—see here and here.)
Yesterday, the New York Times joined …
President Obama devoted his final state-of-the-union speech to highlighting his administration’s considerable accomplishments, and, more importantly, to articulating a surprisingly robust progressive vision for the future.
And that vision properly included a large role for federal regulation.
Noting that “reckless Wall Street,” not food stamp recipients, caused the financial meltdown of 2008-09, the President predicted, “working families won’t get more opportunity or bigger paychecks by letting big banks or big oil or hedge funds make their own rules at the expense of everyone else.”
The obvious corollary is that the federal government must maintain a strong regulatory system to prevent companies from imposing risks to the financial and physical health of the American people and to their shared environment. We must therefore design and maintain a regulatory system that is impervious to capture by the companies that it is designed to regulate.
The President did …
