Lankford Subcommittee Examines Judicial Review in Federal Regulatory Process

WASHINGTON, DC – The Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management today held a hearing to examine judicial review in the federal regulatory process. The hearing, entitled “Examining the Proper Role of Judicial Review in the Federal Regulatory Process,” was the second for the new Subcommittee, led by Chairman James Lankford (R-OK).

Specifically, the hearing focused on the balance of power between the three branches of government in the administrative state. The federal judicial system’s directive from the Administrative Procedure Act to “decide all relevant questions of law” often leads to interpretation challenges. The hearing served as a forum to examine the proper role of the Judiciary in reviewing agency rulemaking action, as well as the various deference regimes developed by the courts.

“Recent Supreme Court cases have raised important questions about how much courts defer to executive agency action,” said Lankford. “When an Executive Branch agency creates rules, interprets the meaning of those rules, and enforces those rules according to their own interpretation, we must ask fundamental questions about the constitutionality of such a scheme.”

The 1984 landmark Supreme Court ruling of Chevron U.S.A., Inc. v. Natural Resources Defense Council was discussed at length during the hearing. The decision established a legal test for determining whether to grant deference to a federal agency’s interpretation of a statute which it administers.

Notable Witness Comments From The Hearing:

Ronald M. Levin, Distinguished Professor of Law at the Washington University in St. Louis and Chair of the Judicial Review Committee for the Administrative Conference of the United States, said, “The institution of judicial review of administrative action is a cornerstone of our legal system and an indispensable safeguard of the interests and rights of the American people.”

Andrew M. Grossman, Associate at Baker Hostetler and Adjunct Scholar at The Cato Institute said, “Chief Justice Roberts’s dissent in Arlington is not only stirring but correct in its view that deference must ultimately yield to the constitutional separation of powers. ‘The obligation of the Judiciary,’ he writes, is ‘not only to confine itself to its proper role, but to ensure that the other branches do so as well.’  Thus, the courts’ ‘duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive.’ He concludes: ‘We do not leave it to the agency to decide when it is in charge.’  Nor should Congress.”

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For video of Lankford’s opening statement and Q&A, CLICK HERE. For hearing material and full hearing video, CLICK HERE. For photos, CLICK HERE.