Wednesday, July 28, 2010

Republican Regulatory "Reform" aka Repeal

Mark Tushnet

The answer to the question I proposed earlier today -- how can the Republican proposal for regulatory "reform" be consistent with Chadha -- appears to be this, with thanks to two correspondents: The statute if enacted would repeal all existing authority in all agencies to adopt major rules, and would convert their "rules" into proposals for legislation, which would receive favored status on the legislative dockets in each chamber.

Fair enough. There's obviously no constitutional problem with either step in that (repeal, favored status for proposals of a specified sort). But: This would be the effect of the Republican proposal, but the statutory language sure doesn't look on its face as if that's what's going on. And, in this area, labels may matter. The Court invalidated the Line Item Veto Act in the face of a cogent argument, offered by Justice Scalia, that if you looked at what the statute did rather than what it said (in its title), there was nothing at all unconstitutional about it. (There's also the canon of statutory construction that repeals by implication are disfavored, though that can be countered by the canon that courts should do their best to construe statutes to avoid finding them constitutional when their language can fairly be read to conform to the Constitution. Whether the "this statute repeals all existing authority to adopt major regulations" interpretation can be described as a "construction" of the statutory language seems to me questionable.)

In addition, if there is something like a constitutional truth-in-labeling requirement, which there might be, the Republican proposal seems to me a good candidate for a finding of deceptive (and therefore unconstitutional?) labeling. The truth-in-labeling requirement might be found in the Line Item Veto decision coupled with Hampton v. Mow Sun Wong, as part of what Laurence Tribe calls "structural due process."

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