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Pruning the executive branch's regulatory powers


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Pruning the executive branch's regulatory powers

Republican leaders in Congress have made it clear they will seek to roll back key regulations across government. But they also may seek to curtail the powers of regulatory agencies themselves.

The U.S. House of Representatives voted on Jan. 4 to pass the Midnight Rules Relief Act. The bill, if passed by the Senate and signed into law by the president, would allow Congress to bundle together any regulations finalized within the last 60 legislative days of an outgoing presidential administration and overturn those regulations with a single vote. Notably, given the peculiarities of the legislative calendar, it has been estimated that 60 legislative days could stretch all the way back into May 2016, meaning that a wide array of regulations, including the FCC's 2016 privacy order, could be on the chopping block.

But it is not just individual rules and regulations that stand to be upended, as key Republican leaders in Congress are also pushing a package of bills that take aim at federal agencies.

Specifically, House Judiciary Committee Chairman Bob Goodlatte, R-Va., recently introduced the "Regulatory Accountability Act of 2017," which combines a series of regulatory reform bills previously passed by the House during earlier Congressional sessions. The legislation, among other things, would prohibit new billion-dollar rules from taking effect until after any legal challenges to the rules are settled; require agencies to publish online, timely information about regulations in development and their expected costs; and mandate that agencies publish plain-language, online summaries of new proposed rules so the public can read them.

One of the more interesting bills in the package -- the "Separation of Powers Restoration Act" -- aims to tip the balance of power away from federal agencies and the executive branch altogether. Specifically, the bill would repeal the Chevron doctrine and its later expansion under the Auer doctrine -- two cornerstones of administrative law that say a court should defer to agencies' expertise where statutes are vague.

"Typically when a statute is being interpreted by a court, they don't defer to anybody," Brent Owen, an attorney at Squire Patton Boggs, said in an interview, explaining that interpreting complicated statutes is pretty much "the court's job."

"But Chevron deference says that while that's normally the rule, in the case of an agency action, we think it makes more sense for [the court] to defer to the agency because that lines up better with what Congress intended when it created that agency in the first place," Owen added.

Chevron deference played a key role in the June 2016 decision from the U.S. Court of Appeals for the D.C. Circuit to uphold the FCC's Open Internet order, which reclassified wireline and wireless broadband service as a common carrier service under Title II of the Communications Act. Citing legal precedent, the court wrote, "The proper classification of broadband turns 'on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.'"

In other words, because the FCC is the expert agency tasked with regulating communications services, the court said the agency is best equipped to know how those services work and how they should be classified.

George Shepherd, a professor at Emory University School of Law, said in an interview that there are "pluses and minuses on both sides" of the argument surrounding Chevron.

Goodlatte previously charged Chevron with resulting in "a runaway regulatory state" where the U.S. "system of checks and balances is tipping away from the legislative and judicial branches, and toward a vast, overreaching executive branch."

But other lawmakers have defended the doctrine, with Rep. John Conyers Jr., D-Mich., saying in 2016 that Congress entrusts agencies, not the courts, with broad policymaking authority for a reason.

"By eliminating judicial deference, the bill would effectively empower the courts to make public policy from the bench even though they lack the specialized expertise and democratic accountability that agencies possess, through delegated authority from and oversight by the American people's elected representatives," Conyers said of the Separation of Powers Restoration Act.

Interestingly, with President-elect Donald Trump set to take over the White House, Shepherd suspects that some Republicans will be less interested in reversing Chevron.

"There are all sorts of ways to look at it but [Chevron] does benefit the party that is controlling the executive branch. So it benefited Obama for eight years because it meant rules could be put in place and it was difficult for Republicans to sue and have them overturned. But now, the shoe is going to be on the other foot," Shepherd said.

But Owen believes that even with a Republican in charge of the executive branch, there are still reasons for the GOP to support a change to the doctrine.

"It's a long-term strategy. Republicans might argue that even with the change to the administration, they generally want less burdensome regulation and they want agencies to be more accountable to Congressional control," he said.

Ultimately, Owen sees Chevron as a question about the balance of power between the three branches of government.

"Chevron was decided under the idea that courts should defer to the Congressional authority given to agencies, that it would actually be overreach by the judiciary to second guess how an agency is interpreting its statute so long as the agency is within the reasonable bounds of statutory interpretation," Owen said, adding that he does not have a strong opinion on whether the balance presently has tipped too far in one direction.

Shepherd, meanwhile, said the doctrine should be scaled back, though he does not believe it should be abandoned entirely.

"There needs to be balance," he said, explaining that while it makes sense for courts to defer to agencies on questions of subject-matter expertise, purely legal questions should not be deferred.

"When it's not a mixed question of law and fact, but just a legal question -- Does the FCC have the legal authority to decide if something is a common carrier or not? -- the courts should be forced to address that. That's their job," Shepherd said.

The Regulatory Accountability Act has been referred to the Goodlatte-led House Judiciary Committee, as well as the House Committee on Oversight and Government Reform, and the House Small Business Committee.