Justice Department Underlines Agency Regulatory Authority, Amid GOP Attacks

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Curbing federal agencies’ regulatory powers was a big theme during the Republican presidential debate earlier this week. “We need to pass the REINS Act so Congress is in charge of regulation,” candidate Carly Fiorina said during Tuesday night’s event, referring to a House-passed bill that would require federal agencies to submit major new rules to a congressional vote.

Her comment came the day after Obama administration Assistant Attorney General John Cruden delivered a speech to the District of Columbia Bar hailing the authority given to regulatory agencies under a key 1984 Supreme Court decision.

Chevron USA v. Natural Resources Defense Council, Cruden said, “is firmly grounded in the Constitution and common sense and it will and should be the guiding principle of judicial deference to administrative interpretations of the law in the future.” The ruling, which applied to an environmental regulation case, but which was also invoked in this year’s Supreme Court arguments over the 2010 Affordable Care Act, evolved into a doctrine, “which many of us apply with confidence borne of years of experience,” Cruden said. The doctrine “has now matured to the point that we all understand that what we call a doctrine is really an umbrella of legal theories that apply judicial deference to administrative interpretations of law.”

The assistant attorney general called Chevron the “cornerstone” U.S. administrative law that “is the envy of many foreign countries.” That field of law “is vitally important because it establishes the relationship between our three branches of government,” he told the audience of administrative law specialists. “And, it incorporates federal agencies that can, and should, add their expertise when appropriate. Because agencies often fill voids created by legislative ambiguity, there is an inherent tension between their acts and that of the legislative body,” he added, noting “administrative agencies are designed to make exactly the type of expertise-driven policy decisions that a generalist court cannot.”

Similarly, “Congress cannot possibly anticipate every possible way its statutory words may be used,” he said, noting that legislators in recent decades have enacted increasingly complicated and science-dependent laws. “It is not only lawful, but quite unremarkable that a legislature would choose broad words, expecting implementing agencies to carry out their overall goals in the best possible manner, using their years of expertise to properly interpret any ambiguous phrases in a correct fashion.”

He concluded, “If we relied on the imperfect implementation of either Congress or the courts it could lead to an unresponsive, inconsistent government overwhelmed with its tasks and crippled by inaction.”

Not surprisingly, the Republican lawmakers favoring the REINS (Regulations From the Executive in Need of Scrutiny) Act, see the power question differently.

Rep. Todd Young, R-Ind., who introduced the bill along with Sen. Rand Paul, R-Ky., said, “The REINS Act is key to reforming our nation’s regulatory system so that the American people can hold Congress accountable for the law of the land. While the president would prefer to act unilaterally…, that’s not the way our system operates. Unfortunately, when the executive branch issues regulations with a huge economic impact or negative consequences, it’s hard for the American people to hold accountable a nameless, faceless federal bureaucracy.  Requiring an up-or-down vote by Congress on major regulations restores the notion that the legislative branch is in charge of writing laws, brings transparency to our regulatory system, and ensures our constituents know who is responsible when burdensome regulations take effect.”

A bipartisan group of senators is pushing various alternatives to giving Congress an up-or-down vote on the work of agency regulators. Sens. James Lankford, R-Okla., and Heidi Heitkamp, D-N.D., for example, introduced the Smarter Regulations Through Advance Planning and Review Act, which would make agency retrospective reviews mandatory for the most expensive rules. It cleared the Homeland Security and Governmental Affairs Committee on Oct. 7.

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