Federalist Society podcast with David McIntosh and Todd Gaziano on the law of the hour, the Congressional Review Act (CRA), which Congress is using to overturn a number of big Obama administration regulations (earlier).
“The revival of Congressional activity under the CRA is a welcome development and shows that Congress is taking seriously its responsibilities both as ultimate lawmaker and in oversight of federal agencies,” said Olson. I’m quoted among other regulation-watchers [Aileen Yeung, Western Wire] More on the belated vitality of the Congressional Review Act: Brian Mannix/Law and Liberty; Kim Strassel/WSJ; Paul Larkin/Heritage.
- “Is ‘Most of Government’ Unconstitutional?” Battle over nondelegation continues after Gundy v. U.S. [Robert VerBruggen, Federalist Society panel video with Ronald Cass, David Schoenbrod, Kristin Hickman, Alan Morrison, Hon. Ryan Nelson]
- Order requiring independent agencies to notify OIRA of major regulations might prove a big step [Sam Batkins and Ike Brannon, Regulation; Cato Daily Podcast with Brannon and Caleb Brown]
- Biestek v. Berryhill: Supreme Court holds agencies can rely on expert witness’s opinion even when witness refuses to provide data underlying it [Federalist Society teleforum with Kent Barnett and Richard Pierce]
- “The Congressional Review Act in an Election Year” [Federalist Society teleforum with Paul Larkin, Amit Narang, and Jonathan Wood]
- “The Need for Humility in Policymaking: Lessons from Regulatory Policy” [Cato event video with Stefanie Haeffele, Anne Hobson, and Chelsea Follett]
- If Chevron doctrine falls, will major regulatory precedents fall with it? [Christopher Marraro and Gary Marfin, WLF, Federalist Society panel video with Mark Chenoweth, David Doniger, Kristin Hickman, David Schoenbrod, Jennifer Mascott]
- Case over harsh IRS handling of lost-in-mail filing reflects worst practices on judicial deference [William Yeatman, Yale Journal on Regulation on Cato certiorari amicus brief in Baldwin v. U.S.] “Congressional Delegation of Regulatory Authority and Time” [Cato podcast with Yeatman and Caleb Brown]
- “Baseball, Legal Doctrines, and Judicial Deference to an Agency’s Interpretation of the Law: Kisor v. Wilkie” [Paul J. Larkin Jr., Cato Supreme Court Review; earlier on Kisor; Cato podcast with Ilya Shapiro (“Auer deference could become minute deference”), William Yeatman and Caleb Brown]
- “Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine” [Gary Lawson, Cato Supreme Court Review, earlier on Gundy v. U.S. here, here]
- “From Chevron to ‘Consent of the Governed'” [David Schoenbrod, Cato Regulation magazine; Cato panel discussion video with Adam White, David Doniger, Shapiro and Yeatman; Federalist Society panel discussion video with Mark Chenoweth, Doniger, Kristin Hickman, Schoenbrod, Jennifer Mascott]
- “Recognizing the Congressional Review Act’s Full Potential” [Jonathan Wood, Federalist Society, earlier]
- “Idaho is the only state in the nation where the elected representatives of the people must affirmatively act at regular intervals to continue the existence and operation of their regulatory system.” When a lapse in reauthorization threw the regulatory code into question, a remarkable struggle began [J. Kennerly Davis, Federalist Society]
My new post at Cato finds some real progress in grappling with a longstanding problem of the administrative state:
Since my update post last year, there have been a number of new developments. Soon after then-Attorney General Jeff Sessions’s announcement of the new policy, followed by the revocation of dozens of existing guidance documents, then-Associate Attorney General Rachel Brand issued a January 2018 directive telling Department of Justice attorneys not to rely on allegations of noncompliance with agency guidance, in and of themselves, as reason to initiate civil enforcement actions. And this past winter, DOJ updated its Justice Manual to limit the use of guidance as a basis for direct liability in both civil and criminal enforcement. “Guidance is not law. It’s not binding. And it shouldn’t be given the force or effect of law,” said Deputy Assistant Attorney General Charles Cox in a January speech.
Plus OMB guidance on the Congressional Review Act (it applies to some guidance documents) and a new study by Prof. Nicholas Parrillo for the Administrative Conference, which found that
regulated parties are most likely to feel that they have no real choice but to obey guidance 1) when they need to obtain preapproval before doing business, 2) when repeat interactions with regulators are inevitable and full compliance all the time is unlikely no matter how hard they try; 3) when the consequences of agency enforcement, or even the opening of an enforcement action, are severe; and 4) when the regulated party employs a large dedicated compliance staff.
These might serve as interesting guideposts in looking for ways to revamp regulatory schemes in such a way that agencies’ whims will no longer be received as law.
Today, in an action to further uphold the rule of law in the executive branch, Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations.
In the past, the Department of Justice and other agencies have blurred the distinction between regulations and guidance documents. Under the Attorney General’s memo, the Department may no longer issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch….
“Guidance documents can be used to explain existing law,” Associate Attorney General Brand said. “But they should not be used to change the law or to impose new standards to determine compliance with the law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome and slow, but it has the benefit of availing agencies of more complete information about a proposed rule’s effects than the agency could ascertain on its own. This Department of Justice will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
This is an initiative of potentially great significance. For many decades, critics have noted that agencies were using Dear Colleague and guidance letters, memos and so forth — also known variously as subregulatory guidance, stealth regulation and regulatory dark matter — to grab new powers and ban new things in the guise of interpreting existing law, all while bypassing notice-and-comment and other constraints on actual rulemaking. To be sure, many judgment calls and hard questions of classification do arise as to when an announced position occupies new territory as opposed to simply stating in good faith what current law is believed to be. But the full text of the memo shows a creditable awareness of these issues. Note also, even before the Justice memo, Education Secretary Betsy DeVos’s statement in September, on revoking the Obama Title IX Dear Colleague letter: “The era of ‘rule by letter’ is over.”
Another notable pledge in the DoJ press release:
The Attorney General’s Regulatory Reform Task Force, led by Associate Attorney General Brand, will conduct a review of existing Department documents and will recommend candidates for repeal or modification in the light of this memo’s principles.
Note also this recent flap over certain financial regulations and the possibility that they may have been issued without notice to Congress, which could preserve Congress’s right to examine and block them under the terms of the Congressional Review Act.
Brookings has a deregulation tracker here. Whether this constitutes a Trump/Republican deregulatory “juggernaut,” as some contend, will have to be left to the reader. [Matt Welch, Gerald F. Seib, WSJ]
Related: “Don’t Write Off the Congressional Review Act Yet” [Susan Dudley, Yale Journal on Regulation]
- Court order (arising from federal demand for information on three accounts) forbids Facebook “from communicating the existence of the warrants to its users” [Paul Alan Levy]
- “The great intellectual property trade-off”: brief guide to IP by economist Tim Harford [BBC]
- Eye-opening if dogmatic history of how federal government and other institutions connived at residential segregation [David Oshinsky in N.Y. Times reviewing Richard Rothstein’s The Color of Law]
- About those “do not remove under penalty of law” mattress tags [Now I Know]
- What comes after a Congressional Review Act (CRA) repeal of a regulation? [Sam Batkins and Adam White, Cato Regulation magazine]
- Estate tax, DC Metro, bogus search-engine takedown suits, and kudos for a Democrat in my latest Maryland policy roundup [Free State Notes]
- Deadline passes for repeal of Obama-era regulations through the Congressional Review Act, at least those that were properly reported to Congress at the time [David Jordan and Nia Prater, Medill/Charlotte Observer, I’m quoted]
- “Removal of Trump’s Muslim Comments Raise Travel Ban Questions” [Cogan Schneier, National Law Journal, and thanks for quote]
- What happened to the ACLU? [Wendy Kaminer/Alan Dershowitz, WSJ]
- Canada’s Charter allows for override of judicial rulings, and 2015 Canadian Supreme Court ruling finding a constitutional right to strikes in essential public services would make a good occasion for it [Conrad Black, National Post, with a further discussion of the native residential schools issue]
- New Jersey legislature passes a bill, which Gov. Chris Christie then vetoes, banning couples both 17 year old from marrying each other even when both sets of parents or a judge approve [Daily Caller; CBS News report quotes no critic of the idea]
- Protesters from inauguration-trashing DisruptJ20 among those at home of FCC chairman: “Alt-left targets Ajit Pai” [Elizabeth Harrington, Washington Free Beacon]