Notice & Comment

Former Section Chair Ron Levin Testifies Before House Committee, by Lynn White

On February 11, 2014, the House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2014 (SCRUB Act).  The bill would establish a Retrospective Regulatory Review Commission (Commission) that would have broad authority to force the repeal or modification of agency rules.  Former Section Chair Ronald Levin, the William R. Orthwein Distinguished Professor of Law at Washington University School of Law, testified on the bill.

The primary purpose of the Commission would be to review regulations and determine whether they should be repealed or amended to reduce regulatory burdens.  The bill would establish a “cut-go” process that would require agencies to offset the cost of any new regulations by repealing or amending regulations identified by the Commission.  The Office of Management and Budget, Office of Information and Regulatory Affairs would also be required to review and certify the accuracy of agencies’ estimates of the costs of new rules.  House Judiciary Chairman Bob Goodlatte (R-VA) stated that “American taxpayers who are carrying the burden of federal regulations deserve better, and the SCRUB Act will cut unnecessary, costly federal regulations, which result in more jobs, better wage opportunities for workers and a more competitive America.”

Professor Levin expressed a number of concerns regarding the SCRUB Act.  Most notably, he said that it would violate the Appointments Clause of the Constitution, because most of the Commission’s members would be appointed by legislative leaders.  Under long settled case law, he noted, such appointees cannot exercise significant authority under U.S. laws.  Professor Levin further contended that “the provisions defining the Commission’s powers would pose major risks of arbitrary decisionmaking.  Essentially, the Commission would have authority to order elimination or amendment of any agency rule that it considers unnecessarily burdensome, and no external body could provide a check on its decisions.  Under some circumstances a minority of the Commission could wield the same powers.”

Professor Levin also questioned the bill’s approach to retrospective review of agency rules.  The bill would require agencies to include a plan for retrospective regulatory review in the issuance of any new rule.  Professor Levin called this requirement “enormously overbroad.”  He recommended that the subcommittee wait until the Administrative Conference publishes an upcoming study on retrospective review before taking action on this issue.

To learn more about the SCRUB Act, visit this website

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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