CPR Scholars Testify on Judicial Deference to Agency Discretion

by Matthew Freeman | March 15, 2016

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 administers, the court must ask first whether Congress has spoken clearly; if so, the clear language controls. If not, the court must uphold the agency’s permissible—that is, reasonable—construction of the statute. The deferential aspect of Chevron in step two has ...

Senate Antiregulatory Package Bill is Selling Corporate Welfare, But the New York Times Editorial Page Isn’t Buying

by James Goodwin | January 20, 2016
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 ...

CPR's Shapiro Testifies on Regulatory Bills for Senate Hearing

by Erin Kesler | September 16, 2015
Today, the Senate Homeland Security and Government Affairs Committee is holding a Hearing on legislation focused on the regulatory system entitled, "A Review of Regulatory Reform Proposals." CPR Vice-President and Wake Forest University School of Law professor Sidney Shapiro will be testifying. According to his testimony: It is a good thing that Congress has directed agencies to issue regulations to achieve important social goals because these regulations have produced enormous benefits for the American people.[1] Consider the following: The White House Office of ...

Senate Joint Committee Hearing Dedicated to Attacking Public Servants

by James Goodwin | June 23, 2015
When your public approval rating has hovered at or below 20 percent for the last several years, maybe the last thing you should be doing is maligning other government institutions.  That didn’t stop a group of Senators from spending several hours doing just that today during a joint hearing involving the Senate Budget and Homeland Security and Government Affairs Committees.  The joint hearing was nominally about a nonsense regulatory reform proposal called “regulatory budgeting” (for more on that, see here), ...

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