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handcuffs and gavel

The Rule of Lenity: A five-minute guide to navigating the intersection of administrative and criminal law

Erica Marshall May 01, 2017
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It is not often that you think of the terms “criminal defense” and “Chevron deference” in the same sentence. But this is starting to change given the ever-expanding number of quasi-civil and criminal statutes passed by Congress.

Indeed, much of the conduct that we would typically consider to be a violation of a regulation, subject to civil penalties in federal court or in an administrative tribunal, is criminalized in the same statute. And it is usually the government’s decision as to whether the case proceeds civilly or with handcuffs. [Read More]

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Capitol dome under construction

To have a better, more honest Congress, change its incentives

Timothy Courtney February 16, 2017
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David Schoenbrod writes for The Hill:

Congress has become one of America’s most unpopular and disparaged institutions — but a practical reform could quickly change all of this to simultaneously benefit the American people and Congressional approval numbers.

Congress’s fall from grace came ironically from the success it helped to produce.  

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Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

10 Controversial Fixes to the Regulatory State

Daniel Epstein November 15, 2016
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Whether legitimacy, democracy, accountability, non-partisanship, or separation of powers motivates the sentiment, there are a number of ways, albeit controversial, to reform the federal regulatory state:

(1) Codify the principle in McGrain v. Daugherty (1927) as it applies to regulatory decision-making, forcing agencies to publish jurisdictional statements in the federal register prior to beginning investigations or enforcement actions. This would have avoided many of the due process issues at the center of the LabMD case. [Read More]

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Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

Oversight or Abdication?

Daniel Epstein November 07, 2016
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For decades, scholars (and the public) have said that Congress has abdicated its oversight role and that the federal bureaucracy had too much discretion and was largely undeterred because legislative monitoring was so weak. At the end of the 20th century, scholars argued that Congress did not abdicate its oversight role but instead preferred to conduct oversight by responding to whistleblowers, interest groups, constituents and others who came forward with allegations of bureaucratic waste, fraud, or abuse rather than spend the time and energy to actively police each agency all the time. This distinction – between Congress responding to fire-alarms by whistleblowers versus actively police patrolling the bureaucracy – has largely been adopted by legal and political scholars.  [Read More]

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Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

Senators Express Bipartisan Interest in Restoring Constitutional Balance of Power

Susan E. Dudley March 29, 2016
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Senators James Lankford (R-OK) and Heidi Heitkamp (D-ND) addressed more than 300 policy analysts from government, academia, nonprofits, and the private sector gathered in Washington, DC for the Society for Benefit-Cost Analysis annual conference on March 17. The senators, who are chairman and ranking member of the Senate Regulatory Affairs and Federal Management Subcommittee of the Homeland Security and Government Affairs Committee, spoke about the need for institutional change to improve regulatory accountability, with Sen. Heitkamp noting the “the very legitimate concerns in America that we are run amok in terms of our reach in regulation.”

Among other topics, the senators talked about the delegation of legislative power to administrative agencies and the deference they enjoy, a subject on which they had held their second hearing earlier in the day.

Senator Lankford said, “When an agency—any agency—has the ability to be able to look at any regulation and think ‘this is close enough to permissible construction [that] I think I can get away with this,’ in the strangest of ways the agency is writing a new statute.”  

“In our basic constitutional system all legislative powers reside in Congress because all legislative power ultimately is to reside with the American people,” he continued. “If some legislative power is given to an agency, then we’ve got a whole different set of problems.”

Senator Heitkamp agreed, and attributed the problem to “laziness and risk aversion on part of the Congress.” Using the Dodd-Frank Act, the Affordable Care Act, and Waters of the United States as examples, she said, “We’d rather write nasty letters to regulators than to actually take responsibility for making the decision ourselves…. [We] do aspirational legislation and then yell when the regulators get it wrong. That’s the world we’re in because we don’t do our job in the United States Congress.”

The two senators have been working closely on regulatory reform and have voted out of committee several bills aimed at improving regulatory procedures and analysis. Whether their ideas gain traction in the full congress and the administration is another matter. They recognized that they have built consensus in a number of areas, but when asked about their success, Sen. Heitkamp demurred that they wouldn’t be successful until they “passed a public law that actually changed outcomes.”