Prof. Levin Testifies Before U.S. House Subcommittee on SCRUB Act
, the William R. Orthwein Distinguished Professor of Law, recently testified before a subcommittee of the U.S. House of Representatives regarding a draft bill that would revamp the process by which existing federal regulations are reviewed. The bill would be known as the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2014 (SCRUB Act). Levin criticized several aspects of the draft bill.
The SCRUB Act calls for a Retrospective Regulatory Review Commission that would review federal regulations to identify those that should be repealed or amended to reduce unnecessary regulatory burdens. During its review process, the proposed commission could consider factors ranging from whether a regulation had been made obsolete by new technology to whether its costs are justified by its benefits, but the commission could also consider any other factors it considered appropriate. Once identified, the rules would be repealed or amended, either immediately or through a “cut-go” process. Under cut-go, an agency would have to offset the costs of any new rule by repealing or amending one of the overly burdensome rules identified by the commission.
Testifying before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Judiciary Committee, Levin argued that the commission the SCRUB Act envisions would violate the Appointments Clause of the U.S. Constitution. “Most of its members would be appointed by House and Senate leaders of the majority and minority parties,” Levin testified. “A group like that can recommend, but it cannot itself exercise significant authority under the laws of the United States. The Supreme Court established this in Buckley v. Valeo in 1976. The law is clear and simple, and unfortunately this bill’s on the wrong side of it.”
Moreover, Levin argued that even if the Constitutional issue were addressed, “the commission would still not be a credible authority.” He maintained that fundamental problems would still exist because most commission members “would not need to be experts in anything, and they could not possibly be experts in all of the areas that they would have the power to affect. That power would be breathtaking.”
He continued, “They could order the elimination or amendment of any rule of any agency that they consider unnecessarily burdensome, and they could use any methodology they want—even soothsayers or astrological charts would do under the bill—and nobody could prevent their decisions from going into effect.”
Levin argued that the cut-go process was problematic because the commission’s list of acceptable rules for offsetting costs of new regulations “would not be reliable.” He added that the process would also complicate rule-making, “no matter how important or urgent the new rule may be.”
Additionally, he questioned the act’s requirement that every rule include a plan to be reexamined a decade after enactment. “That’s way overbroad for most rules, and even for important ones, it’s premature to make a plan in 2014 for how you’re going to reexamine it in 2024 when you can’t foresee a decade from now what the situation would be,” he said.
In short, Levin said, “I would not rule out the possibility that some new structure could be helpful, but the one contemplated by the SCRUB Act is not it.” He then suggested that the subcommittee “needs to take a pause in this area.”
He concluded: “The best thing it could do would be to wait for the forthcoming recommendations of the Administrative Conference, which is now launching a study of retrospective review to be finished by the end of the year, and see what proposals they make. But if the subcommittee does decide to go forward with this bill, the bill will need a thorough and fundamental ‘scrubbing.’”
In addition to his 30-year history as an expert in administrative and related public law, Levin is a former chair and longtime member of the ABA Section of Administrative Law and Regulatory Practice and a public member of the Administrative Conference of the United States. Levin previously in 2012 to the same subcommittee regarding the general concept of retrospective review.