Biden Stays Course on Hundreds of Regulations After Chevron (1)
The Administration continues to gut it out on their regulatory agenda, apparently indifferent to Loper. Perhaps this agenda is more of a political ploy going into the election. It could be another version of the response to the Administration’s losses at the Supreme Court on student loan debt relief: returning with a slightly different version.
‘Biden’s regulatory agenda, detailed Friday afternoon, includes more than 2,300 items. The agenda, typically issued twice per year, offers a window into how the administration plans to use dozens of cabinet-level departments, executive agencies, and federal commissions to advance the president’s priorities.
‘Many of the agenda items echo what the administration has listed several times. New items include the US Equal Employment Opportunity Commission’s plans to propose a rule next year on collecting compensation data from employers.’
Half the Federal bureaucracy are regulators – IPA
Meanwhile in Australia …
‘“Annual staffing costs to employ red tape enforcers alone will be approximately $14.7 billion by the end of the 2025 financial year. This is an increase of $797 million (+5.7%) from the 2024 financial year,” the IPA analysis said,’
Chevron was an end-run around checks-and-balances.
‘“The era of ‘trust the experts’ is over,” Mandy Gunasekara, who served as EPA chief of staff during the Trump administration, previously told the Daily Caller News Foundation. “There’s no doubt that crafty administrative lawyers will try to find an end run around this ruling. But overturning Chevron deference, alongside the ‘major questions’ doctrine decision in West Virginia v. EPA, has defanged the deep state. This is a huge win for checks and balances and putting the faceless bureaucrats in their place.”’
How the Supreme Court rescued my NJ fishing firm that bureaucrats almost sank
One of the fishermen in the Loper case takes a victory lap.
‘What gives federal bureaucrats the right to rewrite federal law?
‘They say the law is “unclear,” which gives them authority to interpret it.
‘But common sense says that if the law doesn’t say it, the government can’t do it.
‘Silence doesn’t equal authority.
‘And there’s a good reason Congress didn’t say that I had to pay for monitors: It’s plainly unaffordable and ignores how fishing works.
‘Some days, my boats don’t even set their nets, because they don’t see fish.’
What's Next for the Regulatory Landscape Post-Chevron?
Holland & Knight takes a comprehensive, sector-by-sector look at the far-reaching implications of Loper. This shift in power from the executive branch to the judicial branch is really a reclamation by the courts.
Perhaps if the agencies hadn’t been so aggressive, they’d still have this leeway. There wouldn’t have been as much cause to challenge them.
‘Principally, Loper reflects a shift in power and responsibility from the executive branch to the judiciary. Under Chevron, federal agencies were charged with interpreting federal statutes, but Loper commands that courts are entrusted with this task. This falls in line with the judiciary's increasing oversight over administrative agencies and the political talking points surrounding the size of the administrative state. And given the ubiquity of administrative agencies and their reliance on Chevron over the last 40 years, Loper may be a hot button issue in election cycles to come.’
US Supreme Court ruling will likely cause cyber regulation chaos
The argument here appears to be that private actors censored themselves in refraining from challenging agency rules while Chevron was in place. Now, they may be emboldened.
Will this lead to chaos as the article suggests?
‘While the Court’s decision has the potential to weaken or substantially alter all federal agency cybersecurity requirements ever adopted, a series of cyber regulatory initiatives implemented over the past four years could become the particular focus of legal challenges. Parties who previously objected to these initiatives but were possibly reluctant to fight due to the Chevron deference will likely be encouraged to challenge these regulations.
‘Although all existing regulations are still in effect, the upshot for CISOs is almost certainly some degree of uncertainty as the legal challenges get underway. A host of conflicting decisions across the various judicial circuits in the US could lead to confusion in compliance programs until the smoke clears.’
Regulations that received previous challenges and relied on Chevron can continue to do so. Regulations that were not challenged, perhaps because of the fear of Chevron, may now be up for a fight. New rules are most susceptible to litigation. This impairs agency flexibility, forcing Congress to act.
‘GROOM INSIGHT: The preservation of prior decisions that relied on Chevron could create an inference that regulations that had not previously been challenged because of a low likelihood of success under Chevron might now be ripe for litigation under the APA. While previously-adopted agency rulemaking that was not litigated may be less susceptible to suit, newly finalized rules appear much more likely to be challenged. For heavily-regulated employee benefit plans and health insurance, the Loper Bright decision could have significant impacts both in terms of cabining agency flexibility, requiring Congressional action for the imposition of additional regulatory requirements, and creating uncertainty as finalized rules may face greater odds of being overturned.’