Legal Commentary

An Insufficiently Deferential D.C. Circuit?

By John Elwood

In a column entitled ?Regulatory Failure? Blame the D.C. Circuit,? Washington Post finanical writer Steven Pearlstein argues that the D.C. Circuit shares some of the blame for regulatory failures because its excessively searching review has demoralized regulators. He writes:

[A]s we were reminded by a case this week involving the Federal Communications Commission, another big culprit [causing regulatory failure] is the U.S. Court of Appeals for the District of Columbia Circuit, which over the past decade has intimidated, undermined, and demoralized the regulatory apparatus.

Many of the D.C. Circuit judges have long since stopped pretending to defer to the factual determinations and policy judgments of duly appointed regulators, as the law requires. Deference has now given way to skepticism, hostility and contempt that can easily be read between the lines of overly legalistic opinions that routinely ignore the plain language of [the] statute and the clear intent of Congress. It?s gotten so bad that top regulators told me privately this week that they routinely put aside consideration of needed new initiatives because they assume they will be foiled by the hostile appeals court.

Pearlstein singles out five judges by name.

I am not as vigilant about watching the output of the D.C. Circuit as I am the Supreme Court, and so I don?t have a view about whether the D.C. Circuit is indeed being insufficiently deferential. But I am skeptical of the claim of widespread ?learned helplessness.? In over three years in the DOJ office that works with agencies on promulgating regulations, I never once heard anyone say there were needed regulations that agencies were foregoing because of concerns of hypertrophied D.C. Circuit review. Hopefully, Pearlstein spoke to people other than ?top regulators,? who, aside from not being neutral observers, may be in full blame-deflection mode this week in the wake of the West Virginia mine disaster. (And that is putting to the side the claims of disregarding the ?plain language of [the] statute and the clear intent of Congress,? which takes a case out of Chevron?land anyway.)