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February 17, 2017

Richard Ferrin Quoted in The Deal on How Congress Will Move Forward to Scale Back Agency Power

Washington, D.C. counsel Richard Ferrin was quoted in The Deal in an article titled “Congress, Gorsuch May Team Up to Roll Back Agency Power.” The article focuses on the Regulatory Accountability Act, a package of several individual bills approved in the last session that the House passed on January 11, 2017.

One of the most-mentioned provisions of the Regulatory Accountability Act, the so-called Chevron doctrine, would eliminate the deference that federal judges currently give regulators when federal agencies write rules to implement vague or ambiguous laws passed by Congress. Under Chevron, judges must defer to "expert" industry regulators if a law doesn't give clear marching orders about how to implement them.

Richard noted that judges frequently are called upon to interpret the meaning of vague statutes outside of the federal rulemaking context and there's no reason they can't do a good job if required to do the same for federal rules: “Judges do that in other areas of law all the time. If a statue is truly ambiguous they have to muddle through.”

“Vagueness is an issue because not every conceivable decision can be codified in the law and you want to give to agency some flexibility in interpreting a statute. That's the theory behind Chevron. But in reality, you have an awful lot of statutes that are vague for different reasons, the chief one being members of Congress have a difficult time reaching compromise and the language that passes is ambiguous enough so that each side can claim victory. That's not helpful for courts that have to interpret the law later on,” he said.

Richard noted that judges don't have to develop the same level of expertise in a particular area as regulators and that one option is for them to hold Congress to a higher level of specificity when writing laws: “One idea [former Supreme Court Justice] Scalia favored was for courts to simply invalidate a statute because it is vague."

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