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Does the D.C. Circuit Hate Regulation?

By Brett Snider, Esq. on August 20, 2013 | Last updated on March 21, 2019

As summer comes to a close, more and more criticisms of the D.C. Circuit's performance have bubbled to the top of the viscous stew that is political reporting.

Some independent sources, like Volokh Conspiracy's Jonathan H. Adler, defend the court's actions over the last few years, noting that despite the kerfuffle over President Obama's recess appointments, "the [c]ourt is hardly anti-regulatory."

The D.C. Circuit hears more regulatory cases than any of its sister Circuits, but how much does the court actually act against agency decisions?

Most "Underworked" Circuit

Allegations of judicial activism have been married like peanut butter to the chocolaty assertions of a tiny caseload in the D.C. Circuit, producing a Reese's Cup of political posturing surrounding the confrimation of nominees to this key court. Senator Charles E. Grassley has taken up the charge, cutting judicial seats out of the D.C. Circuit as part of his Court Efficiency Act, an action which has already been criticized for being based on specious statistics.

So while Sen. Grassley is championing his "D.C. Circuit is doing nothing" campaign, reports Above The Law, there are others who decry the court as a haven for political activism, aimed now at regulation.

A Regulatory Court?

The court has drawn particular ire from Obama Administration supporters over controversial decisions like the one it made in Noel Canning, effectively shutting out recess appointments -- which has been since affirmed by its sister Circuits.

Adam J. White of The Weekly Standard argues that this case and others which have ruffled liberal policymakers is much ado about nothing, claiming that critics are quick to fix on the broad strokes of regulatory cases and "rarely grapple with the substance."

It is certainly not a coincidence that the D.C. Circuit is seen as taking a stand on agency decisions, a great deal of the cases that come before the court are reviews of agency decisions under the Administrative Procedure Act, which has been in effect for almost seven decades.

In many of the cases before it, the court tends to give the respective agency a great deal of deference -- thanks to Chevron USA v. NRDC and its ilk -- and often upholds agency discretion when given even a tenuous grant of Congressional authority.

Instead of cherry-picking decisions that appear to give the D.C. Circuit a policy agenda, The Weekly Standard reports, it is far more instructive to view the court's action when agencies do or do not "carry out their straightforward obligations under the relevant statutes."

Take a late July decision in which the D.C. Circuit took the Food and Drug Administration to task for not following its statutory obligations to prevent the importation of unapproved drugs, drugs used for lethal injections in several states.

That same week, the court upheld a federal pilot program allowing Mexican truckers to use U.S. highways, on the strength of the program's consistency with various federal laws and federal agency discretion.

Bottom Line

The D.C. Circuit's actions may be viewed as anti-regulatory, but holding agency actions to the standards of their legislative grants of power is the court's bread and butter.

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