The Judiciary

A lesson from Scalia: Regulatory reform is obstruction

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The passing of Supreme Court Justice Antonin Scalia is a time of mourning. This loss is understandably painful for his family, friends and colleagues, but also for conservatives. They lost not only a legal giant, but one of their movement’s foremost public intellectuals. While it is natural to celebrate Scalia’s career and impact on American jurisprudence, we should not lose sight of those times when he challenged some of the right’s fundamental commitments.

{mosads}In 1981, then-Professor Scalia took to the pages of the Cato Institute’s magazine Regulation to urge Republicans in Congress not to pursue regulatory reform legislation, surprising many conservatives and Republicans. The article is an honest and transparent assessment of the true strategic aims and impacts of this legislation, and it is just as relevant and instructive today as it was in 1981.

To be clear, Scalia may have supported these anti-regulatory proposals on the merits. But that support didn’t blind Scalia to their practical impact and the political context in which those impacts would occur. The insight at the heart of Scalia’s argument is that the right’s anti-regulatory proposals are inherently obstructive and political. That’s because both regulation and deregulation require rule-making and executive power. The proposals pushed by conservatives were designed to bring the rule-making process to a screeching halt and curtail executive authority. But, as Scalia noted, they only would entrench the regulatory status quo: “Executive-enfeebling measures … do not specifically deter regulation. What they deter is change.”

That might suit congressional Republicans just fine under a Democratic administration, but if Republicans controlled the executive branch, these self-defeating proposals likely would block their own party’s deregulatory agenda. With President Reagan’s first term just getting underway, the principal effect of this legislation would have been to curtail agency discretion and make it more difficult for the new president to implement his agenda.

The lesson from Scalia’s article is clear: The GOP’s current regulatory “reform” agenda — which mirrors that of 1981 — is little more than a power play by right-wing ideologues and business interests to block administration efforts to protect the public. Lawmakers and the public should be deeply skeptical of claims that these measures will improve the rule-making process or lead to “smarter” regulations. Partisan obstruction is their true goal.

Scalia’s article cautioned against several legislative proposals that were pending in 1981, all of which are virtually identical to the anti-regulatory proposals Republican lawmakers are still pushing today, 35 years later. As Scalia suggested, most Republicans would jettison these proposals if they controlled the executive branch.

First, Scalia argued that Republicans should resist the urge to adopt the legislative veto, known today as the REINS (Regulations from the Executive In Need of Scrutiny) Act. This measure requires both chambers of Congress and the president to approve major new regulations before they can take effect, and it clearly worried Scalia. He knew it would allow congressional Democrats to reject a Republican administration’s deregulatory measures. Republicans have brought up the REINS Act every Congress since they took control of the U.S. House of Representatives in 2010 under the false guise of congressional accountability. But their true goal has always been to give Congress, especially the House, veto power over new rules from the White House.

Second, Scalia believed it would be foolish for Republicans to adopt what was then called the Bumpers amendment. This amendment would overturn a landmark Supreme Court ruling, Chevron v. Natural Resources Defense Council, which held that the courts should generally show great deference to federal agencies in cases that involve regulatory policy. Scalia reasoned that overturning Chevron would empower federal courts — at the time dominated by Democratic appointees — to strike down the Reagan administration’s deregulatory measures.

Nearly every regulatory “reform” proposal passed by the House during the 2015-2016 session has contained provisions similar to the Bumpers amendment, dramatically increasing judicial review of new regulations. More judicial review just encourages the courts to second-guess federal agencies at every turn. It is doubtful that Republican lawmakers would be so enthusiastic about judicial review if the rules being challenged were deregulatory actions they supported.

Third, Scalia objected to any major rewrite of the Administrative Procedure Act — the primary statute governing rule-making — to add significantly more analytic requirements and procedural hurdles to the rule-making process. Bogging down the process, Scalia warned, would make it much harder for agencies to repeal regulations on the books. Yet as one of its first actions this session, the House passed the Regulatory Accountability Act, which would codify paralysis by analysis into law. The bill includes procedures similar to “court litigation” that Scalia felt had no place in the rule-making process.

Finally, Scalia criticized proposals for more cost-benefit analysis. Scalia correctly pointed out that since deregulatory measures also result in costs and benefits, such a requirement would slow down the Reagan agenda and pose problems if rule repeals were challenged in court on cost-benefit grounds. Scalia’s solution was to exempt deregulatory measures from cost-benefit analysis and court challenges, but he appears to have understood that such a flagrant double standard wouldn’t pass muster with Congress or the public.

It is possible, of course, that Scalia supported each of these measures on their merits, but nowhere in the article does he discuss their merits. His only concern was with how these anti-regulatory proposals would block the political agenda of the administration in power. Scalia had no illusions about the true purpose behind the GOP’s regulatory agenda: partisan obstruction.

That’s why lawmakers and the public should not be duped into believing the GOP’s anti-regulatory bills will improve the rule-making process or produce better rules. They won’t. Instead, these proposals exemplify a fundamental difference between the two parties, one Scalia used to frame his entire conversation about regulatory reform. As Scalia wrote, “The basic goal of the Republican party is not to govern, but to prevent the Democrats from doing so.”

Democrats considering the GOP’s regulatory “reform” proposals should heed Scalia’s words.

Narang is the regulatory policy advocate for Public Citizen’s Congress Watch division.

Tags Antonin Scalia Regulation regulatory reform Supreme Court
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