The Dusky Gopher Frog Forges Consensus on the Supreme Court

On Tuesday, the Supreme Court decided Weyerhaueser Co. v. U.S. Fish & Wildlife Service in a minimalist decision written by Chief Justice Roberts for a unanimous court. (I joined an amicus brief in the case.). The result may telegraph more about the Chief Justice’s concern with the institution of the Supreme Court than about his views about the case itself.

Weyerhaueser involves the endangered dusky gopher frog, which teeters on the brink of extinction because humans have destroyed its habitat. In 2010, the Fish and Wildlife Service designated “critical habitat” for the frog, as the Endangered Species Act requires, including 1,500 acres where it had once lived, and with modest restoration work, where a viable population could return.

Landowners challenged the designation arguing that critical habitat cannot include lands requiring restoration, but only those that can sustain a species in their current state. The Fifth Circuit disagreed because the ESA defines “critical habitat,” and the definition does not include a “habitability requirement.”

The Supreme Court disagreed, explaining that “[a]ccording to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’” To punctuate the point, the Chief Justice channels an elementary school teacher: “Adjectives modify nouns—they pick out a subset of a category that possess a certain quality.” The Court does, however, also include a cryptic sentence enclosed in parenthesis indicating that “[h]abitat can, of course, include areas where the species does not currently live, given the statute defines critical habitat to include unoccupied areas.” The Court then remanded to the Fifth Circuit to apply this rule of grammar. (The Court also resolved a wonky administrative law question about the availability of judicial review, but the issue is unimportant and its resolution unremarkable.)

What are we to make of this display of unanimity and judicial restraint? It’s possible—I think even likely—that the Chief Justice crafted a compromise to avoid a tie vote. The Court heard argument in Weyerhaueser during the term’s opening week and before Justice Kavanaugh’s confirmation, and he did not participate in the decision. Following Justice Scalia’s death, the justices similarly appeared to strive to avoid ties—at that time, I addressed some of the strategies that emerged in an essay, and to my eye this minimalist vacate-and-remand strategy resembles the disposition in Spokeo v. Robins. In light of President Trump’s ongoing criticism of federal judges, I imagine the justices feel an even greater obligation to avoid any appearance of the rank partisanship that plagues the other branches of our government.

The impact of the decision is unclear, in large part because the Court doesn’t tell us what it actually believes the ESA means. Does land that requires restoration count as habitat or not? A related question is even more consequential. Can the Service designate land as critical habit that will soon be rendered suitable for a species due to ecological changes resulting from climate change?

The decision also raises questions about statutory construction more generally. Ordinarily, when a statute defines a term, that definition carries the day, and the ESA defines the phrase “critical habitat.” The Court nonetheless analyzes the constitutive elements of “critical habitat” to supplement the statutory definition; the Court holds that the undefined word “habitat” places limitations on the defined phrase “critical habitat” that do not appear within the four corners of the ESA.

This isn’t the first time the Court has used the trick of disaggregating defined terms to limit the authority of federal environmental agencies. The Clean Water Act defines the phrase “navigable waters” to mean “the waters of the United States,” but in one of the Court’s most significant environmental law decisions, the Rapanos Court nonetheless held that “the qualifier ‘navigable’ is not devoid of significance.”

Taken together, Weyerhaueser and Rapanos suggest a possible new rule of statutory construction: Congress can only define with any certainty one word at a time. Statutes are, of course, full of defined phrases. The Court has not yet told us when we can simply rely on such statutory definitions and when we must search for independent meaning for each adjective and noun (and adverb and verb).

Justin Pidot is a Visiting Professor at the University of Colorado Law School and a Professor of Law at the University of Denver Sturm College of Law. He previously served as the Deputy Solicitor for Land Resources at the U.S. Department of the Interior during the Obama Administration and as an appellate lawyer in the Environmental and Natural Resources Division of the U.S. Department of Justice. 

More Than Catching Up: A Few Thoughts on Robust Engagement with State Constitutional Law

As the nation reckons with the aftermath of the Kavanaugh hearings, state courts and state constitutions likely will play an increasingly important role in defending civil and human rights. While the United States Supreme Court has already started its march further rightward with decisions such as allowing North Dakota’s voter suppression law to apply to the midterm elections, it is not inevitable that state courts fall prey to the same trend.

However, through actions designed to lock-in conservative supreme court majorities in states like Arizona, West Virginia, North Carolina, Pennsylvania, and Florida, the Right has shown it has a head start in recognizing the importance of state courts. Progressives must catch up in a way that breaks down, not replicates, the will-to-power politics employed by these actors. This could mean reform of judicial selection processes, but, more importantly, it means engagement with those processes in the first place.

State supreme courts can do more than only serve as a bulwark against a conservative U.S. Supreme Court

State courts can protect civil and human rights by approaching their constitutions in three ways that differ from the constitutional vision advanced by conservative U.S. Supreme Court justices:

  • State courts can give appropriate weight to state constructional provisions analogous to guarantees of rights that conservatives have effectively read out of the federal charter, such as the Washington State Supreme Court finding the state’s death penalty law was racially biased and arbitrary;
  • They can look to guarantees of rights specified in many state constitutions that have no enumerated counterparts in the federal Constitution, such as specific guarantees of a right to education or a clean and healthy environment; and
  • When interpreting their own constitutions, state courts can chart their own path on doctrines that conservatives have used to inappropriately restrict individual rights under the federal Constitution.

The first type is undoubtedly important, and one to which most of the post-Kavanaugh confirmation attention has been given. But robust engagement in state constitutional law calls for more. It is critical that the progressive legal community broadens its horizons for what a state court engagement strategy can accomplish. For example, the Washington State Supreme Court recently culminated its years-long review under its constitutional education provision that resulted in an influx of money into the state’s underfunded schools. The Pennsylvania Supreme Court’s decisions finding justiciability—legal enforceability—to its constitutional provisions on education and environmental rights are of similar importance to its decision overturning the legislature’s partisan gerrymandering.

The second type of decision is predicated on the third, which shows how state courts can shape general constitutional doctrines such as separation of powers, political question, and self-execution to fit their constitutional context appropriately. In advancing a substantive view of these constitutional provisions, these doctrines were required to change to better reflect the structural differences between states and the federal government. This, in turn, bolsters corollary constitutional provisions: the Pennsylvania Supreme Court’s decision to overturn partisan gerrymandering was justified on political question grounds through its decision finding its constitutional education provision justiciable. Thus, all three types of decisions are interconnected in advancing a rights-protective jurisprudence.

Unfortunately, such discussion is frequently left out of general discourse of constitutions and constitutional law. Robust engagement with state constitutions requires not only more advocates to bring claims under state constitutional law or scholars writing about state constitutional issues, but more community education about state constitutions and their place in our legal system—and where those constitutions can be taken. The knowledge that the state constitutions are more easily amendable than the federal constitution can also be put to good use: adding provisions to state constitutions providing increased civil rights protections, or a right to shelter, healthcare, public benefits, or the environment is more easily achieved than if such an effort was to be undertaken at the national level.

A better understanding of the potential of state constitutions to protect individual rights must be accompanied by a warning: state constitutions can just as easily be used to restrict those rights, the Colorado anti-LGBT amendment at issue in Romer or anti-affirmative action provisions being immediate and well-known examples. The use of federal power was vital to correct the tyranny of states against Black Americans, and many state constitutions still contain the legacies of Jim Crow. While the federal constitution should serve as a floor from which state constitutions can be more protective, if the United States Supreme Court inverts those floors into ceilings—for example, by expanding its religious liberty doctrines to swallow rights such as nondiscrimination and abortion, the power of state courts to interpret their constitutions to be more protective is inhibited.

State constitutional engagement strategy should be “yes, and”

Because the necessity of federal power and the ability of the U.S. Supreme Court to limit the ability of state supreme court to be more rights-protective, state constitutional engagement is not an “either/or” strategy, it is a “yes, and.” Rather than sacrificing one for the other, it requires advancing rights-protective theories on both fronts. Certainly, it is easier to keep track of nine justices in D.C. than the hundreds outside of it. But to sever from any real consideration these jurists’ views of the law is to malnourish the American constitutional milieu.

Working for a state court judiciary that advances a constitutional narrative more protective of individual rights, amending those constitutions to provide greater textual evidence for that development when necessary, and elevating these narratives to spur recognition in other jurisdictions and American constitutional thought as a whole are fundamental parts of any strategy to mitigate the near-certain erosion of federal protection. Through this, too, we may be able to emerge with stronger rights jurisprudence than before. Considering what we are beginning to see from the U. S. Supreme Court, we only lose if we continue to wait.

ACS Releases Roadblock to Reform

The American Constitution Society is pleased to release Roadblock to Reform, a report by Megan T. Stevenson and Jennifer L. Doleac. Roadblock to Reform examines how politicized systems of judicial selection in Kentucky and Virginia have created incentives for state court judges (principally, to appear “tough on crime”) that have undermined criminal justice reforms in those states. The report examines how judges in those states have applied risk assessments, an increasingly popular but still controversial algorithm-based reform that legislators have hoped would reduce incarceration rates. It concludes that risk assessments have not meaningfully reduced levels of incarceration, because judges – responding to political incentives – have often not followed recommendations under the systems, opting instead for harsher measures. 

The Roadblock to Reform serves as an important warning that the pressures placed on judges by politicized selection and retention systems are a barrier to any meaningful criminal justice reform.  If even risk assessment-based reforms, which are often justified by the belief that they are politically palatable in ways that more ambitious reforms are not, are undermined by politicized judicial selection then ridding judicial selection of improper political influence is an important precondition to criminal justice reform. 

What are risk assessments, and why are they controversial? 

Both Kentucky and Virginia (and several other states, including California) have adopted algorithmic risk assessments in an attempt to reduce incarceration rates with minimal effect on public safety. Some criminal justice reformers believe that these data-driven tools could standardize decisions about pretrial detention and sentencing to make sure that only the most high-risk offenders are incarcerated. Risk assessment algorithms are designed to determine the likelihood of committing a new crime or failing to appear in court by estimating the correlation between “inputs” like criminal history, education, employment, age, gender, etc. and the outcome that the tools seeks to predict.  

To be sure, risk assessments have been harshly criticized by other criminal justice reformers, who argue that they are opaque and technocratic “black box” systems, ineffective at reducing incarceration and de facto tools for perpetuating racism and inequality in the criminal justice system at the expense of genuine, thoroughgoing reform.  

But granting those concerns, the question remains: are risk assessments succeeding, even on their own terms? And if not, why not? 

In Kentucky and Virginia, Risk Assessments Have Not Reduced Incarceration  

The researchers decided to study Kentucky and Virginia because their reforms occurred at the statewide level instead of at the county level which ensures that there are many observations on which to base their analysis. In addition, both states began using algorithmic tools to aid in criminal justice decision making long ago. Kentucky has used some sort of algorithm to aid in the pretrial custody decision since the 1970s and made it mandatory in 2011. Virginia piloted risk assessment in the late 1990’s and adopted it statewide in 2002. Finally, both states adopted risk assessment with the explicit goal of reducing jail and prison populations. 

The key findings of Roadblock to Reform reveal that many judges ignore the recommendations associated with the risk assessment tools. 

  • In Kentucky the median judge grants release without monetary bail to only 37% of defendants with low or moderate risk status.  
  • In Virginia, the numbers are similar with the median judge diverting only around 40% of people recommended for diversion by the risk assessments.  
  • Had the judges in Kentucky and Virginia followed the recommendations associated with the risk assessments in all cases, the pretrial release rate among low and moderate risk defendants would have jumped significantly. In Kentucky, the rate would have jumped up by 37 percentage points and in Virginia by 25 percentage points.  
  • In both states, judges vary widely in the extent to which they follow the recommendations associated with the risk assessment. For instance, some judges will grant non-financial release to over 70% of low and moderate risk defendants while other judges will virtually never grant non-financial release. Similarly, in Virginia the strictest judges divert only around 20% of low-risk offenders while the more lenient judges divert nearly 70%.  

Why? Politicized Judicial Selection 

Kentucky and Virginia both employ systems of judicial selection and retention which have the potential to expose judges to significant political pressures relating to criminal justice issues. In Kentucky, trial court judges obtain and retain office by running in nonpartisan elections, except in cases of filling an unexpired term, in which case they are appointed by the Governor. They serve eight-year terms. In Virginia, trial judges are appointed by the legislature, and also serve eight-year terms, at the conclusion of which they may be re-appointed or replaced. 

The authors of the report note that judicial decision making plays a prominent role in the effectiveness of algorithmic risk assessment tools. Judges come to the bench with their own preferences about sentencing, which is undesirable in a system where the law should provide an objective standard and consistent outcomes across a range of cases. Crucially, the authors note judges respond to incentives and know that these incentives work as a sort of one-way ratchet. That is to say, voters (or legislators engaged in judicial selection and retention) are more likely to punish a judge for releasing someone who then commits a crime than for locking up someone who was not a threat. Judges are therefore incentivized to over-incarcerate.  

A telling counterexample to the Kentucky and Virginia experiences is New Jersey, where judges are appointed and retained under a system dominated by the state’s governor. There, strong support for reducing incarceration levels by the former and current governor seems to have created a different set of incentives for trial court judges, who have accordingly embraced the spirit of the reform. But the real key to achieving criminal justice reform is to lessen to the greatest extent possible the political incentives to which judges are exposed. 

The Solution: Transparent, Publicly Accountable Judicial Selection 

Reformers have identified a number of solutions to the problem of politicized judicial reform. A recent Brennan Center report establishes a framework for limiting to the greatest extent possible the role of politics in judicial selection. Key principles of the proposal include: 

  • A publicly accountable appointment processes under which an independent, bipartisan commission vets candidates and prepares a shortlist for appointment by the governor; 
  • These commissions should have transparent procedures and clear criteria for vetting candidates, and their membership should be bipartisan, appointed by diverse stakeholders and include non-lawyers; and  
  • Judges serve for a single, lengthy term rather than face elections or a political reappointment process to retain their seats. 

In any case, as the Roadblock to Reform shows, effective, sustainable criminal justice reform must include judicial selection reform. 

A Potential Bad Apple for Consumers

Pepper v. Apple confronts the Court with the question of who is a “direct purchaser” when the party selling to consumers claims to be only an agent of the upstream supplier.  This is important because the Court ruled in Illinois Brick Co. v. Illinois that only the direct purchaser from a party that has violated antitrust law may claim damages.  Pepper represents a class of Apple customers who bought “apps” for their iPhones from Apple’s App Store.  The underlying antitrust claim is that Apple has monopolized access to apps useful on the iPhone by both contractual and technological limits.  The damage claim is that buyers of apps have, as a result, paid monopoly prices because the distribution system was not competitive.

Apple encouraged independent developers to create apps that would work on iPhones, but they had to agree to sell their apps only through Apple’s App Store.  Moreover, Apple retains substantial authority to decide whether to allow any specific app to be sold and imposes a pricing scheme that requires the developer to set a price that ends in $.99 which meant that prices would move up in one-dollar increments.  Apple claims it is only the agent of the developers charging the price the developer set, deducting a 30% commission, and passing the remaining funds back to the developer.  This set of legal relationships allows Apple to claim that the developers and not Apple itself “sold” the apps and that the developers had “hired” Apple to be their agent.  Even though buyers must deal with Apple which controls the only access to these apps and charges an excessive commission reflecting its power, its scheme can insulate it from liability to its customers if they are held to be “indirect” purchasers from Apple.  If this scheme works, customers will pay monopoly prices but be denied any recovery under federal antitrust law.

The trial court accepted Apple’s claim and dismissed the case concluding that the customers were only indirect purchasers. The court of appeals reversed and reinstated the case.  Because this created a conflict among the circuits and because the Solicitor General recommended it, the Supreme Court agreed to review the case.

The facts highlight two things, in my view.  First, lawyers can develop contractual schemes that place title, ownership, or other legal relationships anywhere the parties might desire.  Historically, the Supreme Court has rejected this kind of legal manipulation and focused on the functional relationship.  In such view, the buyers deal directly with Apple and have no control over how Apple elects to handle its relationship with its suppliers.  Apple functions as a retailer selling directly to the customers.

But, second, the relationships in this case are somewhat more complex. Apple created the app business in order to ensure that its iPhone has more utility. By insisting on being the marketer of the apps it can control quality but at the same time extract a monopoly markup.  Because it stands between the developer and the customer, it has legal and economic relations with both.  In my view, it makes no sense to think of the developer or the buyer as the only “direct” purchaser and the other as “indirect.”  They both have a direct relationship with Apple, and Apple is the party allegedly exploiting monopoly power.  Indeed, last year in Ohio v. American Express Co. the Court determined that both sides of a “two-sided” market were, for antitrust purposes, in the same “market” thus recognizing that both sides of a market are relevant to antitrust analysis.

If the Court were to embrace the position that either the customers are direct buyers or that both the developers and customers were direct purchasers from Apple, that would leave conventional class action claims intact.  This in turn would help to protect consumers from overcharges resulting from unlawful monopoly.  There could be a challenge in defining the amount of the customer classes’ overcharge if the developers are also direct purchasers but that would be manageable.

A greater threat to consumer protection through the antitrust laws and class actions, would be if the Court were to jettison its Illinois Brick rule that only the direct purchaser has standing.  This would be likely to complicate class action litigation because of the presence of both direct and indirect purchasers with potentially overlapping and inconsistent claims. Such situations could also result in denying class action status to many claims.  Without class actions, many consumer losses would not be recoverable.  Ironically, then, consumers might be made worse off by a restoration of the older standards for liability in light of the evolution of the rules governing class actions. Again, a modest rethinking of the claiming process could overcome that these problems with relative ease as 30 states pointed out in an amicus brief advocating the reversal of Illinois Brick.

The worst possibility would be that the Court accepts Apple’s claim that its customers are indirect purchasers. Because a majority of the Court seems largely unsympathetic, even hostile, to class action litigation and the protection of consumers, there is substantial risk that the Court will deny consumers harmed by Apple’s monopoly the right to recovery the damages they have suffered.  Such a result would provide retailers, especially those selling over the internet, with a way to avoid the risks of liability to consumers exploited by retailer monopoly or conspiracy.

Pepper could open the door to a more rational set of standards governing private damage actions especially class actions.  Sadly, it is unlikely the Court will use this opportunity to facilitate effective enforcement of consumer claims.

Senate Continues Blazing Ahead with Judicial Nominations Hearings

After holding two unprecedented hearings over the objections of the Democrats during the most recent Senate recess, the Senate Judiciary Committee will hold a hearing on Tuesday, November 13. The Senate Judiciary Committee will hear from five nominees: Paul Matey (3d Cir, N.J.), J.P. Boulee (N.D. Ga), James D. Cain (W.D. La.), Damon Leichty (N.D. Ind.), and J. Nicholas Ranjan (W.D. Pa.).

The Committee will also hold what we're referring to as a "Monster Markup" -- an Executive Business Meeting on November 15, where they will consider 15 judicial nominees who are waiting to be reported out of Committee.

The current Senate Judiciary Chairman, Senator Chuck Grassley, has repeatedly ignored home-state Senator consent and held hearings for nominees who are lacking at least one blue slip. This is just one of the five ways Senate leadership and the White House are bending the norms and violating the usual processes for vetting candidates. To learn more about the norms being broken in the partisan attempt to capture the courts, click here.

Legal Responses to Regulatory Capture

Under President Donald Trump, federal agencies are showing ever-increasing signs of regulatory capture. The Environmental Protection Agency (EPA), under former Administrator Scott Pruitt and Acting Administrator Andrew Wheeler, has been a poster child for an agency captured by a well-connected regulated industry.  At EPA, it’s the fossil fuel industry – but industry and their lobbyists have infiltrated agencies across the federal government.  Courts applying administrative law are now the terrain upon which the battle to protect the public interest must be fought, and administrative law can give us the tools to win.

Administrative law is not designed to shield the regulatory process from all political and ideological considerations, but it does require process that conforms to basic rule-of-law requirements, and decisions with a sound evidentiary basis.  Regulators do not have carte blanche to promulgate rules that are entirely unsupported by relevant scientific, technical, and economic expertise, just because a powerful industry says so.

President Trump’s EPA is busily trying to rescind and replace the Clean Power Plan, freeze fuel economy and greenhouse gas emissions standards for automobiles, and limit the types of scientific studies that can be used in rulemaking – all projects at the top of the fossil fuel industry’s wish list.  For decades, the fossil fuel industry has propped up a Potemkin village of trade associations, think tanks, and other front groups that churn out biased, self-serving studies to lend a veneer of credibility to industry’s self-interest; long-time industry operatives from that apparatus now reside at EPA headquarters.  Industry has captured this regulator.

A recent article in the American Journal of Public Health described EPA’s many signs of regulatory capture.[1]  Pruitt’s political career was bankrolled by the oil & gas industry.  Wheeler was a lobbyist for the coal industry.  Most of EPA’s political staff is closely tied to the fossil fuel industry, or to elected officials with close industry ties.  EPA restructured its scientific advisory boards to marginalize independent researchers and allow industry lobbyists greater influence.  The article found “a decisive shift to the overt and systematic influence of regulated industries” at EPA.

EPA is not alone.  Secretary of Education Betsy DeVos has surrounded herself with former employees of for-profit colleges, so it should come as no surprise that the Department of Education proposed rolling back rules that penalized for-profit colleges whose graduates’ meager average earnings make it impossible for them to repay student loans.  Office of Management and Budget Director Mick Mulvaney, who famously stated that as a congressman he wouldn’t meet with lobbyists if they didn’t give him money, is also running the Consumer Financial Protection Bureau, where he has sided with the payday lending industry against a rule designed to avoid trapping low-income lenders in endless spirals of debt.  There is no shortage of Trump agency rulemakings that can and should be challenged on grounds of industry capture.

It begins with presenting evidence and argument that the agency has been captured.  Courts have, in some cases, applied a stricter degree of scrutiny to administrative decisions when they see the danger signals of industry capture.  In Greater Boston Television Corp. v. FCC, the D.C. Circuit Court of Appeals wrote that judicial intervention in regulatory decisions was appropriate when “the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems and has not genuinely engaged in reasoned decision making.”  The “danger signals” that appellate courts have found to trigger “hard look” review are all signs of regulatory capture, such as improper contacts between a company executive and the regulator,[2] a demonstration of undue bias by the regulator towards private interests,[3] or an abrupt shift in policy.[4]

Additionally, courts have found that it is appropriate to more closely scrutinize regulatory decisions that constitute an abrupt change in course.  If an agency makes such a regulatory U-turn, it must “provide a more detailed justification than would suffice for a new policy […] when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy. […]  It would be arbitrary and capricious to ignore such matters.”[5]  “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past.”[6]

“Hard look” review is increasingly relevant when people like Scott Pruitt and Andrew Wheeler run an agency like EPA.  Danger signals flash everywhere:  the former administrator had received campaign donations from regulated industries and their outside spending groups; staff previously worked for or represented regulated industries; top officials held frequent meetings with regulated industries; and EPA took official actions in direct response to requests from regulated industries.  Make your case; point out these danger signals in the administrative record and ask courts to take a “hard look” at the agency and its decision.

Of course, don’t forget the basics.  A regulator “must examine the relevant data and articulate a satisfactory explanation for its action.”[7]  Decisions have to be based on “substantial evidence,” not supposition or spin.  A decision is thrown out if it is “arbitrary or capricious.”  Those interested in a rulemaking “have a right to a fair and open proceeding; that right includes access to an impartial decisionmaker.” [8]  A regulator should be disqualified from a rulemaking “when there has been a clear and convincing showing that the [regulator] has an unalterably closed mind on matters critical to the disposition of the proceeding.”[9] Close review of the evidentiary record, and of the credentials and bias of the experts, will often make your challenge successful.  Where FOIA or other requests can expose agency bias, communications with interested parties, and procedural mischief, these discoveries can amplify your argument.

Another legal line of attack that practitioners should explore is non-delegation doctrine.  In Association of American Railroads v. USDOT, the court held that agencies may not delegate rulemaking authority to private interests.  The delegation at issue in that case was overt, but the non-delegation doctrine should equally apply to covert delegations of rulemaking authority.  There is no substantive difference between an agency telling a company or industry to write a rule for it and an agency telling a company or industry that it will write whatever rule the company or industry wants.

Administrative law is facing a test during the Trump administration.  Usually, courts give significant deference to regulators who are presumed to have scientific and technical expertise that Congress and the courts lack.  But challengers can attack that deference when the agency decision is the product not of expertise, but of industry-generated talking points laundered through a captured administrative process.

As a United States Senator, I am confronted on an almost daily basis by the overpowering influence of special interests in Congress and in the executive agencies we oversee.  When industry co-opts its regulator, it falls to the courts, and the lawyers who challenge agency decisions, to protect the public interest and the rule of law.  Courts may be our theoretically apolitical branch of government, but that does not mean they should be blind to the special interest influences distorting government actions that come before them.  Traditional notions of judicial deference to agency decision-making may have to be reversed where there is evidence of regulatory capture, in order to protect rule of law from private influence.  We unfortunately live in a time of widespread regulatory capture.  We should not pretend otherwise.  We should fight hard to protect fact-based, expert, dispassionate government decision-making.

Sheldon Whitehouse is the United States Senator from Rhode Island.  A more detailed look at his views on regulatory capture and the administrative process can be found in his comment letter on EPA’s proposed rule to replace the Clean Power Plan, available here.  

 

[1] Lindsey Dillon, et al., “The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture,” American Journal of Public Health (April 2018), https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304360

[2] Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)

[3] National Resources Defense Council v. SEC, 606 F.2d 1031 (D.C. Cir. 1979)

[4] United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983)

[5] FCC v. Fox Television Stations, 566 U.S. 502, 515 – 16 (2009)

[6] Id. at 537 (Kennedy, J., concurring).

[7] Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Ins. Co., 463 US 29, 43 (1983) quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962).

[8] Association of National Advertisers v. FTC, 627 F.2d 1151, 1174 (D.C. Cir. 1979); see also Lead Industries Association v. EPA, 647 F.2d 1130 (D.C. Cir. 1980)

[9] Ass’n of Nat’l Advertisers, Inc., 627 F.2d at 1170.