From: Law360/SSRN
By Andrew Oringer and Samuel Scarritt-Selman
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Conclusion
One may wonder whether there are lessons in the cases described above for future
policymakers, as the ability of regulatory efforts to withstand judicial scrutiny is clearly not to
be taken for granted. Will it be harmful to a regulation to acknowledge going beyond clear
congressional intent? Will expressions of desire to effect policy change place a regulatory
effort in additional jeopardy? These and other similar questions may be considered with
increasing focus as regulators pursue policy-driven regulatory efforts.
In any event, at least for the moment, it seems clear that the courts are not reticent about
doing some heavy lifting in the area of deregulation. In the current political climate, activities
along these lines may have the interesting effect of effectively facilitating the Trump
administration’s overall deregulatory efforts.