Notice & Comment

Judicial Deference under the Regulatory Accountability Act

Since I last blogged about the Portman-Heitkamp Regulatory Accountability Act being reported favorably out of committee in May, there hasn’t been any movement on the legislative front. A number of additional administrative law scholars, however, have weighed in, and the legislation continues to get serious attention in policy circles.

For instance, Cass Sunstein has a generally positive take (with four constructive criticisms) in the Bloomberg View in a piece entitled A Regulatory Reform Bill That Everyone Should Like. Here’s a taste from that opinion piece:

The Regulatory Accountability Act, introduced by Senators Rob Portman of Ohio, a Republican, and Heidi Heitkamp of North Dakota, a Democrat, and passed last month by the Senate Committee on Homeland Security and Governmental Affairs, takes cost-benefit analysis and public participation seriously. Though progressive groups have raised some legitimate (if overheated) concerns, most of its provisions deserve bipartisan support.

The good news is that Portman and Heitkamp have produced a bill that reflects much of the learning of the last three decades, that emphasizes the importance of science and economics, and that could ultimately lead to higher benefits and lower costs. Its flaws need to be corrected – but it has a lot of promise.

Dan Farber, by contrast, has a much more critical review of the legislation in The Hill entitled Tangling Life-Saving Regulations in Red Tape. Farber’s take is pretty representative of the arguments made by critics of the legislation. Here is a snippet from the opinion piece:

In one of the few efforts with any Democratic support, Sens. Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.) have co-sponsored a Regulatory Accountability Act that made it out of committee on May 17 and is headed to the floor soon. The sponsors may be speaking for corporate interests, playing defense with next year’s elections in mind, or may actually think the bill will improve the regulatory process. But it’s a bad idea – one that will make it harder to clean up our air, water and food. For instance, if this bill passes, it might take years to tighten standards to prevent another Flint drinking-water crisis.

The Heitkamp-Portman bill has myriad flaws, but two stand out in particular. First, it would require agencies to use courtroom procedures for evaluating important rules, complete with cross-examination of witnesses in front of a judge. Nowadays, agencies get evidence and comments in writing, a faster, less expensive, more deliberative process. And second, once a regulation is adopted, the bill would give federal judges hearing challenges more power to second-guess agencies in a number of key areas, including assessing the scientific basis for the agency’s action, the meaning of agency rules, and the economics of agency cost-benefit analysis. Both provisions are steps in the wrong direction.

For what it’s worth, I’ve blogged a fair amount about this legislation and published my short, generally positive take in The Regulatory Review in an opinion piece entitled The Regulatory Accountability Act Is a Model of Bipartisan Reform. Later this year the Administrative Law Review will be publishing my longer take in an essay entitled Modernizing the Administrative Procedure Act, a draft of which is available here. In those pieces I further explore the points raised by Farber and Sunstein.

In light of Farber’s criticism of the judicial review provisions of the Regulatory Accountability Act, I did want to make one small additional point. Although Republicans in Congress have been advocating for the elimination of any judicial deference to agency legal interpretations, the Portman-Heitkamp legislation would preserve so-called Chevron deference—judicial deference to an agency’s reasonable interpretation of an ambiguous statute it administers—while eliminating Auer or Seminole Rock deference, which is judicial deference to an agency’s interpretation of its own regulation. Moreover, contrary to Republican-based legislation to eliminate judicial deference, this bipartisan legislation would not replace Auer deference with de novo review, but instead would adopt the middle ground of Skidmore deference, meaning that courts would give “weight” to those agency regulatory interpretations based on their “power to persuade.”

To provide some additional context, Kent Barnett and I just concluded our review of every published circuit court decision that cites Chevron deference from 2003 through 2013. In an article forthcoming in the Michigan Law Review, we report that the agency won 77.4% of the time when courts applied the Chevron framework compared to 56% under Skidmore deference, and 38.5% under de novo review. In other words, agencies will likely prevail less often under Skidmore than Auer, but still much more often than under de novo review. (This is of course assuming that agencies will not adjust their interpretive practices to be less aggressive, an assumption my prior empirical work on agency statutory interpretation casts some doubt on.) This is a modest, compromise change to judicial review of agency regulatory interpretations.

Moreover, the propriety of Auer deference has been the subject of extensive debate in recent years. For instance, here at the Notice and Comment blog last year Aaron Nielson hosted a terrific online symposium, which collected over two dozen different perspectives on Auer deference. As that symposium nicely illustrates, there are reasonable arguments on both sides of the Auer debate. The Regulatory Accountability Act would chart a middle ground of replacing Auer with Skidmore deference, and without disturbing Chevron deference. For what it’s worth, I find myself much more troubled with Auer than Chevron, for some of the reasons Chris DeMuth, Ron Cass, and I expressed in a recent amicus brief.

Perhaps most importantly, this bipartisan compromise of retaining Chevron yet eliminating Auer may be an important move to recalibrate agency use of guidance documents in lieu of notice-and-comment rulemaking. After all, one may reasonably worry that the legislation’s more rigorous rulemaking provisions could encourage agencies to abandon rulemaking in favor of less-formal agency guidance. Eliminating Auer deference to agency regulatory interpretations in agency guidance documents—while maintaining Chevron deference for agency statutory interpretations promulgated in rules—should encourage agencies to continue to utilize rulemaking (at least when approaching the outer bounds of a statutory ambiguity), in order to obtain greater deference under Chevron. Such agency incentives may well have been weakened if the legislation had also eliminated Chevron deference.


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