re law gives green light to sue federal agencies?

["David Farber" <farber () gmail com>]

Begin forwarded message:

From: Herb Lin <herblin () stanford edu>
Subject: RE: [IP] law gives green light to sue federal agencies?
Date: January 16, 2017 at 2:27:34 PM EST
To: "dave () farber net" <dave () farber net>, ip <ip () listbox com>

Might this not also cut the other way?  That is, perhaps the public affected by inaction on the part of a federal 
regulatory agency would also be able to sue to force action.  That is, perhaps the courts would be able to make rulings 
in the absence of regulation.
 
IANAL, but maybe some of our legal colleagues might explore how this could work in principle.
 
Of course, an unfriendly judiciary is the biggest impediment here.
 
herb
 
 
=======================================================================
Herb Lin
Senior Research Scholar, Center for International Security and Cooperation
Hank J. Holland Fellow in Cyber Policy and Security, Hoover Institution
Stanford University
Stanford, CA  94305  USA
herblin () stanford edu <mailto:herblin () stanford edu>
650-497-8600 office || 202-841-0525 cell || 202-540-9878 fax
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#safetypin
 
From: Dave Farber [mailto:farber () gmail com] 
Sent: Monday, January 16, 2017 10:50 AM
To: ip <ip () listbox com>
Subject: [IP] law gives green light to sue federal agencies?
 



Begin forwarded message:

From: Alexander Goldman <agoldmanster () gmail com <mailto:agoldmanster () gmail com>>
Date: January 12, 2017 at 1:11:27 PM EST
To: OIA List <oia () lists bway net <mailto:oia () lists bway net>>
Subject: [OIA] GOP law gives green light to sue federal agencies?

http://talkingpointsmemo.com/edblog/--100901 <http://talkingpointsmemo.com/edblog/--100901>
 
 
ByJOHN JUDIS Published JANUARY 12, 2017, 12:59 PM EDT
 
Sometimes, the general public is completely unaware of very important decisions government makes because they are 
shrouded in technicalities. Yesterday, the House of Representatives passed a bill that could crippled the ability of 
government to regulate private industry.
 
The bill modifies the Administrative Procedure Act, which was passed in 1946, and represented a compromise between New 
Deal Democrats and free-market Republicans. It sanctioned the power of government agencies like the National Labor 
Relations Board or the Federal Communications Commission to regulate the private market, but required public hearings 
on proposed rulings and court suits to overturn regulations.
 
The Supreme Court ruled in 1984 that the courts could only overturn rulings that were “arbitrary and capricious, an 
abuse of discretion.” In other words, the courts would have to defer to the regulatory agencies in finding whether a 
ruling was justified. But the Republicans in the House passed a law that would allow the courts to rule without giving 
deference to the regulatory agencies. A Republican court could, for instance, overrule decisions of the Food and Drug 
Administration or the Environmental Protection Agency on concocted Constitutional grounds – say, by arguing that it 
violated the “takings” clause of the Constitution. That could cripple the regulatory agencies.
 
Martin Lobel, a Washington lawyer and expert in tax and regulatory policy, sent me an email explaining the Republican 
action:
 
On January 11, while everyone’s attention was focused on confirmation hearings and attempts to repeal Obamacare, the 
House passed The Regulatory Accountability Act of 2017 (H.R. 5) which would amend the Administrative Procedures Act to 
overturn the deference courts have given to administrative agency decisions by a vote of 238-183. I was told the 
Republican leadership was confident, since there are 114 judicial vacancies that they expect will be filled by 
“conservatives,” this change will significantly help to end “big government,” as will the new Administration’s 
appointees to the various regulatory bodies. BEWARE.
 
Marty’s admonition, “Beware,” should be taken very seriously. If the Senate passes this act, and President Trump signs 
it, federal agencies entrusted with enforcing the Clean Air Act or other landmark legislation, will no longer be able 
to do their job.
_______________________________________________
Open Infrastructure Alliance
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