Judge Edward Korman is unhappy with the Administration’s handling of Plan B contraception. On Friday, the NYT reports, he denied the Administration’s request to stay his order requiring that Plan B be made available over-the-counter to all women and girls of any age. [...]
Salon has an interesting report on Tuesday’s court hearing before federal district judge Edward Korman in which the Administration sought to defend its newly announced policy of limiting the over-the-counter availability of Plan-B contraception to females 15 and older instead of removing all restrictions as Korman had previously ordered. A taste:
This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug.
The Administration is also appealing Korman’s order. [...]
This morning, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit, in National Association of Manufacturers v. National Labor Relations Board, struck down a new NLRB regulation requiring employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites. Judge Randoph wrote the opinion for the court finding that the various means of enforcing the rule violated various provisions of the NLRA. Among other things, Judge Randolph concluded that if Section 8(c) of the NLRA prohibits the Board from finding an employer guilty of an unfair labor practice for posting a notice informing workers of their right not to join a union, it cannot be an unfair labor practice for an employer to refuse to post a notice informing workers of their right to unionize. Judge Henderson also wrote a concurring opinion, joined by Judge Brown, articulating additional reasons to find the rule invalid.
Of note, the court did not rely upon its previous decision invalidating President Obama’s recess appointments to the Board. This was at issue because the publication date of the rule in the Federal Register occurred after the expiration of Wilma Leibman’s term, at which point the Board was left with only two Senate-confirmed members. This did not matter, Judge Randolph explained, because the Board actually promulgated the rule before Leibman’s term expired and thus before the NLRB lost its quorum. While the date of Federal Register publication matters for determining when petitioners must challenge agency rules — it is such publication that puts regulated parties on notice — once an agency has actually finalized and filed its rule with the Office of the Federal Register, the agency’s action is complete. Thus the Board had a quorum when it acted to promulgate the rule, [...]
Today’s Cleveland Plain Dealer has an interesting investigative report on how mine operators fight mine safety penalties imposed by the Mine Safety and Health Administration. Here’s a taste:
Critics say that in fighting back, mine owners are clogging up the appeals process and wearing down a system that lacks resources to match the challenge. Like a game of Chutes and Ladders, the process plays out year after year: federal inspectors cite a mine, the agency proposes fines, the mine owner appeals and gets many of the fines reduced — and the process repeats itself anew. It raises questions about how sensible and effective the mine-safety system is.
But the federal Mine Safety and Health Administration, or MSHA, defends the system, saying inspections and citations, regardless of how the fines are resolved, create safer mines. MSHA is a division of the Department of Labor.
For their part, mine owners and representatives say they just are exercising their legal rights.
The story also notes a case pending in the U.S. Court of Appeals for the Sixth Circuit challenging a new MSHA rule that would allow the agency to base penalties on all serious citations issued to a mine operator in the preceding year, even those that are contested (and that could be subsequently overturned). [...]
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.