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Re law gives green light to sue federal agencies?
From: "Dave Farber" <farber () gmail com>
Date: Mon, 16 Jan 2017 13:51:59 -0500
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From: "W. Scott McCollough" <wsmc () smccollough com> Date: January 12, 2017 at 2:29:47 PM EST To: "'Alexander Goldman'" <agoldmanster () gmail com>, "'OIA List'" <oia () lists bway net> Subject: Re: [OIA] GOP law gives green light to sue federal agencies? There are decent arguments against what the House bill actually does. But this article is overwrought and misrepresents what the bill is about. The bill would eliminate “Chevron Deference” and tighten up some of its sibling doctrines like “Aur Deference.” These doctrines relate to how much “deference” a reviewing court gives to an agency’s construction of vague language in its organic statute (Chevron) or the agency’s own rules (Aur). The courts are typically quite deferential because of these doctrines unless the agency construction is plainly incorrect, irrational or the agency does not have jurisdiction to begin with for some reason. There is a huge line of cases on this topic, and an immense legal debate over the propriety of it, given separation of powers and what the APA itself says. I am not a fan of Chevron, but can live with Aur under most circumstances. The fact is that these doctrines cut both ways. I’ve prevailed and I’ve lost on account of them. Their application hurts both activists and businesses, because it basically puts a thumb on the agency’s side in EVERY challenge – including cases brought by activists. My progressive friends should keep in mind that Trump will be packing agencies too, not just the courts. So most of you are not likely to be happy with future decisions. The article wrongly assumes that federal agencies will continue to be friendly places for progressives (generally speaking) and activists for progressive causes. But all indications are that is way incorrect. Absent this change you will have a hard time challenging what the Trump administrative deep state does when it begins to dismantle Obama legacy. The change will, in fact, make your life better, not worse because you will have an easier time getting the decision reversed if you have a decent statutory argument. Even before a conservative reviewing court because a “conservative” court applies the law as written (at least that is what they profess). The court will look at the question of what the statute says “de novo” without giving deference to the agency’s blather and circumlocution. Calm down. _________________________________ W. Scott McCollough 2290 Gatlin Creek Rd. Dripping Springs, TX 78620 ( 512.633.3498 2 512.692.2522 + wsmc () smccollough com _________________________________ From: Oia [mailto:oia-bounces () lists bway net] On Behalf Of Alexander Goldman Sent: Thursday, January 12, 2017 12:11 PM To: OIA List <oia () lists bway net> Subject: [OIA] GOP law gives green light to sue federal agencies? http://talkingpointsmemo.com/edblog/--100901 ByJOHN JUDIS Published JANUARY 12, 2017, 12:59 PM EDT Sometimes, the general public is completely unaware of very important decisions government makes because they are shrouded in technicalities. Yesterday, the House of Representatives passed a bill that could crippled the ability of government to regulate private industry. The bill modifies the Administrative Procedure Act, which was passed in 1946, and represented a compromise between New Deal Democrats and free-market Republicans. It sanctioned the power of government agencies like the National Labor Relations Board or the Federal Communications Commission to regulate the private market, but required public hearings on proposed rulings and court suits to overturn regulations. The Supreme Court ruled in 1984 that the courts could only overturn rulings that were “arbitrary and capricious, an abuse of discretion.” In other words, the courts would have to defer to the regulatory agencies in finding whether a ruling was justified. But the Republicans in the House passed a law that would allow the courts to rule without giving deference to the regulatory agencies. A Republican court could, for instance, overrule decisions of the Food and Drug Administration or the Environmental Protection Agency on concocted Constitutional grounds – say, by arguing that it violated the “takings” clause of the Constitution. That could cripple the regulatory agencies. Martin Lobel, a Washington lawyer and expert in tax and regulatory policy, sent me an email explaining the Republican action: On January 11, while everyone’s attention was focused on confirmation hearings and attempts to repeal Obamacare, the House passed The Regulatory Accountability Act of 2017 (H.R. 5) which would amend the Administrative Procedures Act to overturn the deference courts have given to administrative agency decisions by a vote of 238-183. I was told the Republican leadership was confident, since there are 114 judicial vacancies that they expect will be filled by “conservatives,” this change will significantly help to end “big government,” as will the new Administration’s appointees to the various regulatory bodies. BEWARE. Marty’s admonition, “Beware,” should be taken very seriously. If the Senate passes this act, and President Trump signs it, federal agencies entrusted with enforcing the Clean Air Act or other landmark legislation, will no longer be able to do their job. _______________________________________________ Open Infrastructure Alliance http://lists.bway.net/listinfo/oia
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- Re law gives green light to sue federal agencies? Dave Farber (Jan 16)