As expected, the Obama Administration is asking the Supreme Court to review a decision by the U.S. Court of Appeals for the D.C. Circuit holding invalidating the President’s recess appointments to the National Labor Relations Board. The cert petition is here. [...]
The NYU Journal of Legislation and Public Policy has published my article “Placing Reins on Regulations: Assessing the Proposed REINS Act” in its latest issue. The arguments I make in this piece should be familiar to readers of this blog. In the same issue, the NYUJLPP has also published “The REINS Act and the Struggle to Control Agency Rulemaking” by Professor Jonathan Siegel of the GW Law School. Professor Siegel agrees with me that the REINS Act is constitutional, but thinks it would be a bad idea. In addition, the NYUJLPP has posted a short response essay by former OIRA Adminsitrator Sally Katzen and Julian Ginos raising constitutional doubts about the proposed reform.
As noted below, Justice Scalia was the lone dissenter in Decker v. Northwest Environmental Defense Center. The reason was not that Justice Scalia has decided to become the Justice Douglas of the 21st century. Rather, it was due to his relatively newfound opposition to Auer deference (aka Seminole Rock deference), under which courts are to defer to an agency’s interpretation of its own regulation. Justice Scalia previously expressed concerns about Auer deference in his Talk America concurrence. In Decker, however, Justice Scalia made clear he’s gone beyond questioning Auer, and now wants to see it overturned. As Justice Scalia summarized:
For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.”
Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency’s interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court’s deference to the agency makes the difference . . . . And respondent has asked us, if necessary, to “‘reconsider Auer.’” I believe that it is time to do so.
Justice Scalia explained his reasons for rejecting Auer deference
The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” . . . But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In
Eight more states have joined a lawsuit challenging the constitutionality of various provisions of the Dodd-Frank financial reform law. The states are Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia. As three states (Oklahoma, Michigan, and South Carolina) had already brought suit, this brings the total number of states involved in the suit to eleven.
Tomorrow the Supreme Court will hear oral argument in City of Arlington v. FCC. This dispute between local governments and the Federal Communications Commission over the latter’s authority over the application of local zoning rules to wireless facilities could well produce the most significant administrative law decision in a decade. At issue — and the only question upon which the Supreme Court granted certiorari — is whether federal courts should apply Chevron deference to agency determinations of their own jurisdiction.
Although the Supreme Court has never addressed this question head on — and the matter has divided the federal circuit courts — the prevailing wisdom is that Chevron deference should not be available in the jurisdictional context. As I explain in this background paper for the Free State Foundation, Chevron deference is based upon a delegation of interpretive authority by Congress to an administrative agency. Thus to apply such deference to a jurisdictional question is to let the agency determine, in the first instance, how much authority Congress delegated. Such a result is inconsistent with the rationale for Chevron, as clarified in subsequent cases such as Mead, would facilitate agency aggrandizement, and could raise troubling constitutional questions about the nature of agency authority.
Although several parties filed briefs in support of the FCC’s assertion of authority in this case, most conceded the question before the Court. For instance, the briefs by Cellco Partnership d/b/a/ Verizon and AT&T both take the petitioners’ side on the Chevron question, only to argue that the FCC should nonetheless prevail in the immediate dispute with regard to local zoning laws and wireless facilities. Only T-Mobile comes to the FCC’s defense on the Chevron question upon which the Court granted cert. None of this means the petitioners will prevail, but I think it [...]
Regulatory policy mavens have been wondering all year when the federal government would release the Unified Agenda of Regulatory and Deregulatory Actions. This report details the various actions planned by federal regulatory agencies. The Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget is supposed to release the Unified Agenda twice a year, but until December — late December — no report had been issued. Now the wait is over. Just in time for Christmas OIRA released a single report for 2012 (available here). Some had speculated the report had been withheld because federal agencies were planning a “tsunami” of post-election regulations. Yet according to the Washington Times, that does not appear to be the case.
Today, in Richards v. NLRB, the U.S. Court of Appeals for the Seventh Circuit declined to consider whether President Obama’s recess appointments to the National Labor Relations Board were constitutional. As Judge Williams explained for the court, the petitioners lacked standing to challenge the NLRB’s actions, as the complained-of policy had already been overturned. Other cases in which the constitutionality of the NLRB appointments is being challenged remain pending in other circuits. (Hat tip: Josh Gerstein, Politico)
[Note: Link fixed] [...]
Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.
The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.
P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional. [...]
Among the regulatory reform proposals passed by the House of Representatives this year was the “REINS Act,” a proposal to require Congressional approval before major regulations could take effect. Supporters and opponents of this bill have presented the REINS Act as a deregulatory tool. The actual effect of the REINS Act is likely to be more modest, for reasons I explain in an article forthcoming in the NYU Journal of Legislation and Public Policy (available on SSRN here). While I believe the REINS Act would significantly increase legislative accountability for regulatory policy, I doubt it would stop all that many regulatory initiatives, particularly those with significant public support.
Passage of the REINS Act has always been a long shot. Though it passed the House of Representatives, the Senate has shown little interest. This month’s election makes the REINS Act’s chance of becoming law even more remote, as the Democrats have increased their Senate majority and President Obama has said he would veto REINS were it to reach his desk. Debates over regulatory reform will continue nonetheless. So, for those interested, here’s the abstract of the paper SSRN.
Over the past several decades, the scope, reach and cost of federal regulations have increased dramatically, prompting bipartisan calls for regulatory reform. One such proposed reform is the Regulations of the Executive in Need of Scrutiny Act (REINS Act). This proposal aims to restore political accountability to federal regulatory policy decisions by requiring both Houses of Congress to approve any proposed “major rule.” In effect, the REINS Act would limit the delegation of regulatory authority to federal agencies, and restore legislative control and accountability to Congress. This article seeks to assess the REINS Act and its likely effects on regulatory policy. It explains why constitutional objections to the proposal are unfounded
The federal government is supposed to publish the Unified Agenda of Regulatory and Deregulatory Actions twice a year. This document provides a rundown of all the various regulatory (and deregulatory) actions that are in various stages of the regulatory pipeline. In this way, the agenda provides an overview of the federal government’s regulatory activities, and alerts readers to regulatory actions that could be coming down the pipe. The agenda is supposed to be released in the spring and fall, though it often comes out late. This year, however, neither spring nor fall edition has been released. Nor has the federal government published the final version of its report on the costs and benefits of federal regulations. The draft was released in March. Wayne Crews comments:
These delays matter because the president promised to slim the regulatory waistline and has issued specific executive orders in the process. Expediting the data that would ease outside assessments would seem an obvious must-do.
It is true Bush issued more overall rules (coming off the Clinton era) over the past three years as the president likes to claim; but Obama issued more of the high-dollar “economically significant” variety the Unified Agenda highlights. It’d be nice to have the figures and plans for 2012. . . .
Accountability for regulations matters, and disclosure is a prerequisite.
Among the Supreme Court’s seven cert grants today were the potentially important takings case Ilya notes below and another potentially important administrative law case: City of Arlington v. FCC. In City of Arlington (consolidated with another case), the Court limited the grant to the question whether Chevron deference should extend to agency interpretations of ambiguous statutory language that defines the scope of an agency’s jurisdiction. This is an important question that has divided the lower courts and the Supreme Court has never directly addressed. It’s also one that is likely to divide the current court (though along what precise lines I am reluctant to predict).
This question is of particular interest to me because it was the subject of an article I co-authored with GMU’s Nathan Sales, “The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences,” with whom I clerked on the D.C. Circuit. In this article, we explained why Chevron deference should not apply in such contexts, placing us firmly on the side of Justice Brennan and opposed to Justice Scalia. Brennan and Scalia debated this question in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, though the Court ducked the issue. Now it appears they will finally resolve it.
A news release from the Competitive Enterprise Institute notes that the attorneys general of Michigan, Oklahoma, and South Carolina have joined their lawsuit challenging the constitutionality of portions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The original suit challenged several Dodd-Frank provisions, including creation of the Consumer Financial Protection Board. The states’ challenge focuses on Title II’s “orderly liquidation authority,” which allows the federal government to seize allegedly troubled financial institutions with minimal notice or recourse. According to the states, these provisions lack adequate due process and could threaten state pension funds. Here’s the amended complaint. [...]
Last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected the EPA’s effort to deny private landowners an opportunity to challenge the agency’s assertion of jurisdiction over their land. The Sacketts wanted to build a home in a subdivision, but the EPA concluded the Sacketts’ land to contain jurisdictional wetlands under the Clean Water Act and issued an order requiring the Sacketts to cease construction of their home and undertake specified restoration efforts. Failure to comply with the order was itself punishable with substantial fines, in addition to any for violating the CWA. The Sacketts sought judicial review of the order, on both statutory and constitutional grounds, to no avail in the lower courts. They prevailed in the Supreme Court, however, completely on statutory grounds, leaving the due process questions to another day.
The Court based its decision on the Administrative Procedure Act’s presumption in favor of judicial review of final agency actions and the CWA’s failure to expressly preclude such review. But what if the CWA had precluded review? Would the Sacketts have been entitled to judicial review under the Due Process Clause? And more broadly, given the uncertainty surrounding the scope of federal wetland regulation, and the lack of fully enforceable jurisdictional regulations, does current CWA enforcement more generally comport with the principles of due process? I explore some of these questions in a forthcoming article in the Cato Supreme Court Review, “Wetlands, Property Rights, and the Due Process Deficit in Environmental Law.” The abstract is below.
In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision
Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.
The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.
There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial [...]
The U.S. Court of Appeals for the D.C. Circuit issued two significant decisions today.
In the first, Sherley v. Sebelius, a unanimous panel affirmed the district court’s grant of summary judgment to the federal government rejecting a challenge to federal funding of emryonic stem cell research. Chief Judge Sentelle wrote for the court. Judges Henderson and Brown wrote separate concurrences. Co-blogger Russell Korobkin has several posts on this litigation. (See here, and scroll down.)
In the second, R.J. Reynolds Co. v. FDA, a divided panel affirmed the district court’s grant of summary judgment to tobacco companies in their First Amendment challenge to the FDA’s new cigarette labeling rules. Judge Brown wrote for the court, joined by Senior Judge Randolph. Judge Rogers dissented.
As if I wasn’t already sufficiently behind on my blogging, I’ve also yet to post about the D.C. Circuit’s decision Tuesday striking down the EPA’s cross-state air pollution rule, or the petition for en banc reconsideration filed in the greenhouse gas litigation. Time permitting, there will be more to come on all these cases. [...]