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 ...

Dear Jeb: Crippling Federal Agencies Will Not Keep America Safe!

by Robert Verchick | September 22, 2015
Republican presidential candidate Jeb Bush released a plan meant to make it harder for federal agencies to make rules that protect public health and the environment. That might help some big corporations. But it makes everyday Americans much less safe. The idea is to jam up the federal rule making process with so many requirements that hardly anything important would get done. Safeguards that keep the air clear, the water clean, and the workplace safe would be put on the back burner. Bush’s ...

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 ...

The Real Nine Most Terrifying Words in the English Language

by James Goodwin | July 15, 2015
“I’m Republican, and I want to do regulatory reform.”  Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point—if not on a near-daily basis—during the last few years.  Who could blame them?  The unshakable conviction that our regulatory system is broken and that gutting it is the key to its salvation is apparently one of the few areas where all the GOP’s members can find ...

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), ...

More Right-Wing Pseudo-Research on the Costs of Regulation

by James Goodwin | May 13, 2015
The Competitive Enterprise Institute is out with the latest in a series of industry-friendly reports overcooking the supposed costs of regulation, while understating or simply ignoring the vast benefits to health, safety and the environment. Not surprisingly, The Wall Street Journal and The Washington Times were good enough to put the right-wing echo chamber in motion in its service. A few quick thoughts: This report isn’t scholarship, it’s arithmetic advocacy—and it’s poor arithmetic at that.  The organization that sponsored the report is more ...

Why Not Jail?

by Matt Shudtz | December 16, 2014
When 29 miners died at Upper Big Branch or 11 workers died on the Deepwater Horizon, when 64 people died from tainted steroids, or when hundreds got Salmonella poisoning from peanut butter, did you ask yourself, 'Why not send the people responsible to jail?' You're not the only one. In her new book, Why Not Jail: Industrial Catastrophes, Corporate Malfeasance, and Government Inaction, CPR President Rena Steinzor asks the same question and concludes: The criminal justice system is as important ...

Obama’s Path to Progress: Reducing Climate Disrupting Emissions from Power Plants

by James Goodwin | November 10, 2014
Last week brought a string of bad news as far as global climate disruption goes.  The bummer parade began Sunday with the release of the Intergovernmental Panel on Climate Change’s (IPCC) Fifth Assessment Synthesis report, which painted the direst picture yet of the looming global climate disruption threat, finding that “Continued emission of greenhouse gases will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive and irreversible impacts for people ...

President Obama’s Home Stretch: Saving Lives, Conserving Natural Resources, and Securing His Legacy

by Rena Steinzor | November 07, 2014
Last Sunday, the New York Times ran the best of dozens of stories about how President Obama will behave in the last quarter of his eight years in office. Veteran political reporters Peter Baker and Michael Shear wrote: “As the President’s advisers map out the next two years, they have focused on three broad categories: agenda items he can advance without Congress, legislation that might emerge from a newfound spirit of compromise with Republicans, and issues that Mr. Obama can ...

The President’s Path to Progress: Get Serious About Regulating

by Rena Steinzor | November 05, 2014
One curse of being a two-term president is that in your last two years, you must endure a conversation about whether you’re still relevant. For Barack Obama, that conversation is about to go kick into high gear. The pundits will observe, correctly, that his legislative agenda has little chance of moving through the new Congress, although that’s been true since 2011, of course. So what is the path to progress for Barack Obama in these last two years of his ...

Crain and Crain are Back, and This Time They're Working for the National Association of Manufacturers

by James Goodwin | September 09, 2014
Having thoroughly tarnished their own reputations as well as that of the Small Business Administration’s (SBA) Office of Advocacy, economists W. Mark Crain and Nicole V. Crain are now preparing to make the big leap from thoroughly discredited academics to straight up shills for corporate lobbyists working to undermine public protections.  The National Association of Manufacturers (NAM), an industry trade group that vehemently opposes such policies as cleaning up air pollution and improving worker safety, yesterday announced that it will ...

Pushing back against anti-regulatory forces, safety and environmental protections long overdue

by Celeste Monforton | August 06, 2013
Finally!  After far too much hullabaloo about the cost of regulations, there was a U.S. Senate hearing today on why public health regulations are important, and how delays by Congress and the Administration have serious negative consequences for people’s lives.  Senator Richard Blumenthal (D-CT) called the hearing entitled “Justice Delayed: The Human Cost of Regulatory Paralysis,” the first one conducted by the Senate Judiciary Committee’s newly created Subcommittee on Oversight, Federal Rights and Agency Action.  The witnesses included a parent-turned advocate for ...

Robert Verchick: Will the White House stall its own climate change plans?

by Erin Kesler | July 30, 2013
Last week, The Hill published an opinion piece by Center for Progressive Reform Member Scholar Robert Verchick. The piece entitled, "Politics and progress: Will the White House stall its own climate change plans?" can be read here. According to Verchick: Under its statutory authority, EPA has ample power to write rules limiting power plant emissions, for example. But since the Reagan administration, all “major” rules—those seen as important to national policy—have been funneled into a little-known process of review, conducted ...

Robert Verchick Reacts to Congressional Letter on OIRA Delays

by Robert Verchick | June 06, 2013
Late Tuesday afternoon, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs (OIRA). The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed ...

WARNING: Individual Research Findings and Economic Models May Not Be Fully Grounded

by Daniel Farber | May 15, 2013
Reposted from Legal Planet. A couple of weeks ago, a major paper on the economics of government deficits turned out to have huge flaws. Matt Kahn and Jonathan Zasloff have already had something to say about this, but I’d like to add some thoughts about the implications for environmental issues.“Interesting,” you say, “But what does that have to do with the  environment?”   I see two big lessons.  The first lesson is about the danger of overreacting to a dramatic ...

Who Is Running OIRA?

by Lisa Heinzerling | April 30, 2013
Reposted from RegBlog. In his revealing new book about his nearly four years as President Barack Obama’s “regulatory czar,” Harvard Law School professor Cass Sunstein describes a striking moment:  “After I had been in the job for a few years, a Cabinet member showed up at my office and told my chief of staff, ‘I work for Cass Sunstein.’  Of course that wasn’t true – but still.”  But still, indeed.  Sunstein’s book, Simpler: The Future of Government, makes clear just ...

Steinzor Testifies Today on Proposed Giveaway to Energy Industry

by Matthew Freeman | April 12, 2013
This morning, CPR President Rena Steinzor will testify before the House Energy and Commerce Committee about the proposed Energy Consumers Relief Act of 2013 (ECRA), yet another in a series of bills from House Republicans aimed at blocking federal regulatory agencies from fully implementing the nation's health and safety laws — in this case such landmark legislation as the Clean Air Act, and any other law enforced by the Environmental Protection Agency that is in any sense "energy-related." Here's the ...

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