One Worse Case Scenario for Chevron Deference

We are not suggesting that one case in itself should determine the fate of Chevron deference, but if there were one, the following is most certainly an excellent candidate.

A plaintiff seeks relief in the court claiming that the agency had no authority to issue a rule.  340B Complaint

The Court opines in no uncertain terms  that the agency does not have the authority to issue the  rule.   See  340B order

The agency responds by issuing an interpretative rule which renders moot the decision of the court.  http://www.hrsa.gov/opa/programrequirements/interpretiverule/interpretiverule.pdf

The FR notice announcing the availability of the rule is here: https://www.federalregister.gov/articles/2014/07/23/2014-17409/availability-of-interpretive-rule-implementation-of-the-exclusion-of-orphan-drugs-for-certain

The Internet Archive’s Wayback Machine: A National Treasure

The Internet Archive is the sponsor of the world’s largest digital library. It is a 501c(3) not-for-profit organization located in San Francisco, California.

We call this organization to the attention of our readers because the Center for Regulatory Effectiveness (CRE) receives inquiries as to our plans for ensuring that our library of the evolution of centralized regulatory review be made available for future generations.

The answer is straightforward; the Internet Archive has been preserving copies of our website since 1999, the  day we began operations and only three years after it began. The Internet Archive had a wide range of websites to digitize and CRE is fortunate and appreciates it including CRE as one of its earliest websites to digitize.

The Unparalleled Reach of the Paperwork Reduction Act

OMB, acting through OIRA, has a wide range of mechanisms to manage federal agencies.  None of these mechanisms can approach the reach of the Paperwork Reduction Act (PRA). Consider that the PRA:

(1)  prohibits any federal agency from imposing any reporting or recordkeeping requirement on ten or more members of the public without an approval by OMB,

(2)  is the only substantive  control OMB has over independent agencies,

(3) states that OMB approval of the aforementioned reporting and recordkeeping requirements are not judicially reviewable and must comply with the Data quality Act,

The Evolution of Chevron Deference: The Need for Public Involvement

This note examines the motivations, biases and expectations of the major institutional players in the Chevron debate, ranging from OMB, to the academic community to federal litigators to legal practitioners and ultimately judges. The Chevron Debate concerns Chevron Deference which is a result of a Supreme Court ruling which declared that when courts review actions taken by federal regulators the courts should defer to the views of the regulators if the underlying statute is ambiguous and if the position of the regulator is reasonable.