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FMG Law Blog Line

Facing the Behemoth: Trump, Gorsuch, and the House’s Attacks on Agency Power

Posted on: February 21st, 2017

By: Christopher M. Curci

The total number of pages in the Code of Federal Regulations has grown from approximately 110,000 in 1984 to a near staggering 180,000 pages today. This growth can be attributed in large part to the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The landmark decision established that federal administrative agencies have broad discretion to interpret federal statutes. Over time, Courts have upheld administrative rulings and interpretations on the basis that they are given “great deference.”

This hands-off approach of the Courts was, once again, the basis of the Third Circuit’s recent opinion in NLRB v. Sub Acute Rehabilitation Center, wherein the Court upheld the NLRB’s determination that a group of Licensed Practical Nurses were not supervisors, and therefore entitled to collective bargaining rights under the labor act. However, decisions like the Third Circuit’s may soon become antiquated. Attacks on the “great deference” given to administrative agencies are coming from all three political fronts: Executive, Legislative, and Judiciary.

On the Executive front, President Trump has stated his belief that regulations can be cut “by 75%, maybe more.” The President has supported his talk with action. On January 20, 2017, he signed an Executive Order requiring that any proposed department or agency regulation shall also identify at least two existing regulations to be repealed. In other words, if you want to pass one law, then you must get rid of two.

On the Legislative front, the House has proposed the Regulatory Accountability Act of 2017. Among other things, the bill calls for abolishing the Chevron “deference” standard of review, and instead authorizes the Courts to have a de novo review of administrative agency actions. In other words, Courts would be free to interpret the law on their own with complete disregard for an administrative agency’s interpretations.

On the Judicial front, Supreme Court nominee Neil Gorsuch wrote an opinion in August of 2016, wherein he stated, “There’s an elephant in the room with us today… the fact is Chevron… permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Mr. Gorsuch’s opinion in 2016 may prove to be prophetic for 2017. In the year’s first two months, the 180,000 page “behemoth” is now facing attacks from all three political fronts.

For any questions, please contact Chris Curci at [email protected].

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