SSRN Common Law Initiative SSRN Reproduction
An Effective and Easy Way to Challenge the Major Questions Doctrine
Officials within the Center for Regulatory Effectiveness were instrumental in establishing the Office of Information and Regulatory Affairs in the White House Office of Management and Budget and in doing so focused on the Presidential review of agency regulations; acting in a parallel manner the Common Law Initiative, initiated by CRE, focuses on the Congressional review of judge-made Laws. Obviously this is not our first time at the rodeo. The objective of this initiative is to increase the accountability of the courts to the public.
The Center for Regulatory Effectiveness has been a proponent of the Common Law Initiative for a number of years. In a nutshell this Initiative provides a blueprint for a manageable review by the Congress of judge-made law, which is not constitutionally based, and its origin and contents are described on this page.
The Common Law Initiative is noteworthy because it recognizes upfront the time constraints on Congress by having the Administrative Conference of the US (ACUS) develop recommended procedures for the aforementioned review by the Congress. The recommended procedures should include the implementation and continuous management of a database maintained by the agencies, and available for public input, which will be one input to the administrative record for consideration by the Congress when it addresses the potential shortcomings of a particular judicial opinion. More specifically, pursuant to guidelines issued by ACUS, the aforementioned database would contain a continuous record of the adverse effects of select number judicial opinions. The aforementioned action is warranted because proposals to date to increase Congressional oversight over the judiciary are procedurally rich and data poor. ACUS is ideally suited to fill this important role because it is a federal agency consisting of leading jurists, federal regulatory officials, legal academicians and practitioners all who are appointed by the President and who specialize in the management of the administrative state.
For those who have not been involved in the installation of stringent control systems in massive bureaucracies we would like to emphasize that the presence of ACUS brings a unique dimension to the process. More specifically, the utilization of ACUS allows the initiation of a corrective action to take place immediately as opposed to waiting for the passage of legislation. In addition, in that ACUS is composed of representatives from every major agency in the federal government, the magnitude and depth of the resources that could be devoted to the Common Law Initiative could never be matched by the minimal size of Congressional staffs. That said, in that ACUS would be making a recommendation to the Congress, Congressional staff do have the resources to work in a review and decision-making capacity.
Lastly a number of our reviewers have emphasized that until a process is devised to address filibusters in the Senate, the Common Law Initiative is not operable. We concur, in part, to that observation but it should be noted that an in-depth analytic document produced by ACUS which utilizes information from the aforementioned database which catalogs deficiencies in select judicial rules would constitute a nudge which could restrict the number of filibusters. Furthermore actions taken by ACUS will serve as a catalyst to enjoin a debate on a particular judicial ruling.
Professor Vladeck, Professor Heinzerling, Professor Pierce, Professor Yeatman, Professor Walker, Professor Larkin and Senator Whitehouse each acting independently of CRE proposing the Common Law Initiative, have set forth their views on the compelling arguments for an intervention by Congress to address judicial overreach. Accordingly CRE concludes:
In order that the Common Law Initiative be implemented it is imperative that affected constituencies be made aware of its contents and its implications. To this end we are requesting CRE’s substantial national and international readership to prepare White Papers on the Common Law Initiative. Upon receipt of the aforementioned White Papers CRE will continue to use them as a catalyst to launch, implement and publicize the Initiative within the Congress, the agencies and the Executive Office of the President.
Some in CRE have worked upwards to sixty years on establishing processes to allow the President to police the activities of the agencies, including the initiation of the benefit-cost analysis of rules, the establishment of centralized regulatory review and OIRA as well as the passage and implementation of the Paperwork Reduction Act and the Information Quality Acts. It was a shocking realization and an equally embarrassing demonstration of CRE’s naivete to assume that others had developed comparable efforts to allow the Congress to police the activities of the courts.
Appendix
Implementation
The Congress has been studying the policing of the courts for yeas and just recently has proposed legislation to address this issue. It should be noted however that the initial phase of the Common Law Initiative can be implemented immediately. Consequently what is needed for the timely implementation of the Common Law Initiative is to employ one or two policy entrepreneurs who are nonpartisans.
The Key to Success: Less Burdensome Implementation Procedures
Although the programmatic impacts of the Common Law Initiative could be gigantic, the administrative burden associated with the implementation of its procedural requirements might pale relative to those developed for the implementation of the Information [Data] Quality Act. The decision processes contained in the IQA parallel those inherent in centralized regulatory review and both have withstood the test of time. More specifically, under the auspices of OIRA, and in conjunction with the unmatched participation of the federal agencies, the federal government instituted government-wide procedures to correct inaccurate information disseminated by federal agencies in record time. We believe comparable results could be achieved regarding the procedures to implement the Common Law Initiative. As noted above: (1) manageable procedures are key to Congressional review of judicial rulings and (2) the issuance of government-wide procedural guidance is a mainstay of the charter of the Administrative Conference of the US.
The biggest obstacle to the Congressional policing of the courts is overly complex procedures; efficient procedures are synonymous with timely and informed Congressional action. The aforementioned Administrative Conference of the United States is the ideal institution to develop the first draft of these procedures.
Public Comments
Although the Common Law Initiative has been under development for several years it has not been highlighted until recently. We appreciate the written comments we have received but we do not make them public unless the author so indicates in very explicit terms. To the extent we receive a number of substantiated comments that point in the same direction we will post our interpretation of the said comments.
- Financial Sector
The financial sector believes it is far too early in the game to reach any conclusions. The idea of a continuous and forceful mechanism for the Congress to challenge judicial opinions has not been accorded any serious consideration. They recommend that CRE provide: (1) a synopsis of the proposals to date and (2) a comparison of one or more of the aforementioned proposals with the Common Law Initiative.
- Academia
A handful of the legal profession will get involved in the conflict at an altitude of thirty thousand feet but will not become engaged in hand-to hand combat.
The primary interest of the economist community is the perfection of benefit-cost analysis, not the interest of the group which politicizes it.
- Public Sector NGO’s
Public Sector NGO’s appreciate the fact that CRE is moving from developing control systems applicable to the executive branch to developing control systems applicable to the Congress in a natural progression, but they are dubious about CRE’s endgame.
- Energy Sector
The energy sector is facing a wide range of existing challenges and is not interested in addressing another challenge.
Work In Progress
Notwithstanding the fact that CRE has worked a number of years on establishing processes for the Presidential policing of administrative agency regulatory programs it is not envisioned that CRE would undertake a similar program to implement the Congressional policing of the judiciary. Nonetheless we have recommended a specific program for others to address the issue which is presented herein, and summarized it in this post and this one, both of which are based on several internationally attended discussion fora.
Response to Public Comments
We have gone from receiving very few comments to at times an identifiable workload. In the event we failed to reply to your comment, the following is the substance of the comments we made to date.
From: Jim Tozzi
Sent: Sunday, November 13, 2022
To: xxxxx@uscourts.govSubject: A Succor for Chief Justice Roberts
The Common Law Initiative: Congressional Review of Judge-Made Law – A Progress ReportI spent my entire career of nearly sixty years establishing, defending and perpetuating the regulatory process which allows the President to police the regulatory activities of federal agencies. My work culminated in the establishment of OIRA.
I am now turning my efforts to designing and implementing a process which will allow the Congress to police the activities of the courts without any immediate need for legislation.
My strategy, the Common Law Initiative, is described on the Social Science Research Network: SSRN.
Here is a summary of the initiative.
Respectfully,
NB Posted on this page
Present Status of Events
CY 2022
November 2022
The bottom line is that we found no group who was willing to initiate a continuous and visible program which would have Congress oversee the actions of the judiciary; however we did identify several groups whose writings provide a mechanism for others to act if legislation were enacted. The program recommended by CRE does not require legislation and it first consists of a nudge and second, if need be, a coercion. CRE is in the process of developing its next plan of action.
December 2022
The U. S. Administrative Law eJournal has published our leading paper to date regarding Congressional oversight of judge-made law.
Based upon our work on this matter over the past three years we believe we can draw the conclusion that an effective Congressional review of judge-made decisions is likely not to occur if the debate is centered on US based participants, whether they are considered be on the “right” or “left”. It is for this reason that we have expanded the domicile of the program participants to include non-US based scholars and practitioners.
Over the decades, members of the media often contact CRE regarding factual information on stories they are working on. Over the years we have learned to follow the workings of the media and the significance they play in addressing public policy issues. To this end, here is a release we made with respect to the Common Law Initiative.
12/05/2022
Today, E&E News published a pathbreaking story which opens the door for a challenge to the Major Questions Doctrine which was central to the SCOTUS decision on the West Virginia program and ultimately put the wraps on the centerpiece of EPA’s climate change program.
Unlike all the solutions recommended to date, which require the enactment of legislation to initiate a corrective action on a judicial ruling, the Common Law Initiative can be initiated under existing authorities.
I recommend that you contact the reporter on the aforementioned story, Ms. Pamela King, and request that she vent the Common Law Initiative with her readers through a follow up story which would serve as the basis for making a recommendation as to whether or not to proceed with the use of the Common Law Initiative to remove the restrictive constraints of the recent SCOTUS decision.
The Common Law Initiative is available on this page and is reproduced below.
Respectfully,
Center for Regulatory Effectiveness
12/13/2022
David Doniger & Lissa Lynch
In West Virginia the conservative Supreme Court majority announced the “major questions doctrine” and rejected the novel regulatory approach EPA had adopted in its 2015 Clean Power Plan. The decision signals potentially daunting new obstacles for federal agencies trying to address emerging challenges of the modern world. The Court found that Congress hadn’t given a clear enough authorization in Section 111(d) of the Clean Air Act for the “generation-shifting” strategy that EPA had chosen. At the same time, the Court acknowledged EPA’s “traditional” authority to set standards under that section based on pollution controls that “caus[e] plants to operate more cleanly.” That’s why we called the decision “a setback, not a death blow” for EPA climate regulations.
12/31/2022
Status Report: The Use of the Common Law Initiative to Address the Major Questions Doctrine Re: Climate Change
It has been nearly two months since I released the Common Law Initiative aimed at addressing the Major Questions Doctrine.
The bad news [to me] is that one participant described the Common Law Initiative as an “overly brutal attack on SCOTUS “, if you may—the nuclear option. The aforementioned view is shared, but to a lesser degree, by representatives of the Congress, the Academy and NGO’s and to an even reduced degree by Executive Branch officials and practitioners who nonetheless prefer either the no action alternative or the proceed without their public involvement alternative.
Opposition to the Common Law Initiative is similar to statements made some fifty years ago when actions were taken to provide the President with the option of policing the activities of the regulators; an ordeal that took twenty years to accomplish.
The good news is that virtually no person opined that the Common Law Initiative would not have an impact on SCOTUS.
The bottom line is that I am guided by the following statement I made to the aforementioned participants:
“ While the severity of the destruction that the Major Questions Doctrine has imposed on the climate change program is open to debate, what is not debatable is that the only act in town to address the issue immediately is for either the President or the Congress to initiate action on the Common Law Initiative.”
Jim Tozzi
CY 2023
01/06/2023
Discussions have been initiated with relevant officials.
Interested parties may submit comments; no comments will be disseminated outside of CRE unless the author submits a written request.
01/07/2023
I spent five decades developing and implementing a process which allows the President to police the activities of the regulators; I have just released a strategy which is an easy and effective process for policing the activities of the Supreme Court.
Please see the Common Law Initiative at https://www.thecre.com/forum8/?p=7806 Presently the Common Law Initiative is being reviewed by policy officials in the Congress and Executive Branch agencies. I applaud the work of the Academy to explore the many dimensions of the Major Questions Doctrine with a focus on pedagogical concerns but I am writing you to ask the academy consider an expanded role in the resolution of this very significant policy issue.
In that my primary interest is having the future of MQD determined not by appointed officials but instead by elected officials; the accomplishment of this objective requires direct confrontation with a number of very influential individuals and organizations. Therefore consideration should be given to having those members of the Academy who share the aforementioned objective expand their horizon from not only optimizing law school curricula but also to include arming practitioners with informed arguments to promote the Common Law Initiative.
jim
Center for Regulatory Effectiveness
01/15/2023
As a result of the increased coverage of the Common Law Initiative in the past six months, the questions raised by the public exceed our capability–both in their number and their substance–to respond to them in a timely and informed manner. To this end we applaud the actions of the Academy to dissect the Major Questions Doctrine in excruciating detail because such work lays the foundation for a Congressional or Presidential intervention.
Nonetheless CRE believes an equally important role for the Academy is to begin addressing issues that need to be addressed with respect to the implementation of the Common Law Initiative. CRE has been asked a number of questions regarding the impact the Common Law Initiative might have on the daily operations of the judiciary. For example, questions have been raised concerning, for example, District Court decisions; is it possible to take an action that could result in a Congressional action on a district court decision? If so, what are the implications of the action for other district courts?
The aforementioned question, and many others, are beyond the wingspan of CRE. There are members of the academy who specialize in the operations of the court; they are in the best position to answer the aforementioned question.
Without a doubt implementation of the Common Law Initiative will result in a number of issues that will have to be addressed, that said we repeat our statement made in the 12/31/2022 post above:
“ While the severity of the destruction that the Major Questions Doctrine has imposed on the climate change program is open to debate, what is not debatable is that the only act in town to address the issue immediately is for either the President or the Congress to initiate action on the Common Law Initiative.”
01/18/2023
The Administrative Bar and the Environmental Bar. In the course of our discussions with policy officials on the Common Law Initiative, one participant quoted from an article written by CRE some five years ago regarding Chevron.
01/22/2023
Relief at last! We have been looking for professional assistance in answering questions regarding the implementation of the Common Law Initiative. In retrospect the answer is obvious–utilize the very talented pool of federal retirees as suggested by some of our readers. In that the content of our substantive discussions are restricted to program participants, there will be a lapse in posts on this page dealing with implementation strategies and reactions thereto.
