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November 23, 2011
Policy: Congressional approval of regulations?
From PrawfsBlawg, "Regulatory Changes, Part 2: Congressional Approval of Regulations" by Bill Araiza (Brooklyn):
The second idea I want to talk about is the proposal to require congressional approval before regulations take effect. Under current law, major regulations are subject to a disapproval vote by Congress (not a legislative veto, but a full-blown statute wiping out the reg -- the statutory provision allows some fast-tracking of such disapproval votes, which is what it adds to Congress's inherent power to wipe out a regulation by statute). S. 299 and H.R. 10, the latter of which is known as the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011, would change this. ... Say this provision is enacted, and Congress votes up a particular regulation. Does the regulation get any judicial review at all, beyond classic rational basis review, since now it's the product of Congress and not an agency? In other words, would this provision do away with "arbitrary and capricious" review of the major rules subject to that provision's congressional vote requirement? It's hard to see an answer other than "yes" -- i.e., no A&C review. That might be OK in light of the fact that it would be Congress essentially doing the hard look review (though it's surely doubtful whether Congress's criteria on review would be similar to those of a court's on judicial review). But if so, then this provision would work a massive change in the role of the courts in our administrative law system -- an "avulsive change," to use Justice Scalia's disparaging language from United States v. Mead Corp.. It's this type of realization that illustrates just how far-reaching (yes, radical) some of these provisions are.
EMM
November 23, 2011 | Permalink
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