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Law360 (June 11, 2020, 6:10 PM EDT )
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| Todd Phillips |
In addition to deregulating swiftly by using the "good cause" exception to the lengthy traditional procedures and urging Congress to weaken regulations through legislation, the administration has simply decided to not enforce the law.
In May, President Donald Trump issued an executive order requiring all agencies to exercise their enforcement discretion "for the purpose of promoting job creation and economic growth,"[1] the U.S. Department of Labor announced it would not enforce some record-keeping requirements related to illnesses acquired on the job,[2] and the U.S. Environmental Protection Agency told polluters it would not enforce the environmental laws against companies so long as they "act responsibly."[3]
The public, and Congress, should not accept these actions, especially since the administration has been reducing regulatory enforcement since 2017 (except for in immigration, it appears).
Although the U.S. Supreme Court explicitly recognized the federal government's right of prosecutorial discretion in Heckler v. Chaney (finding that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion"), the president's executive order may go beyond the broad discretion granted to agencies in Heckler by "consciously and expressly adopt[ing] a general policy" against enforcement and allowing these policies to be reviewed in court.[4]
Litigating whether the executive order and agency responses create a policy reviewable by courts, let alone constitute an illegal policy against enforcement, would take ages. However, there is another option to ensure that regulatory statutes are properly enforced: private rights of action.
Private rights of action grant everyday Americans the ability to bring a lawsuit against another private party for violating the law. These individuals, acting as "private attorneys general" who pick up the slack for overburdened enforcement litigators or an absent government, have been used to enforce civil rights, antitrust and environmental laws. With private rights of action, even when the government decides it cannot or will not enforce regulations, the public will remain protected by statutes the way Congress intended.
Unfortunately, the Supreme Court has severely limited the ability of the public to act in this capacity by limiting private rights of action to mostly those cases where the right is expressly written into statute or congressional intent demonstrates Congress intended for one to exist.
In the 1975 case Cort v. Ash, the court articulated a four-part test for determining whether to find an implied right of action in statute.[5] Such a right would only be found where: (1) Congress intended to protect a specific class or classes, and a member of such class is bringing the suit; (2) an "indication of legislative intent" to create a private right exists; (3) finding an implied right is "consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff;" and (4) the cause of action must not be "one traditionally relegated to state law … so that it would be inappropriate to infer a cause of action based solely on federal law."
Over time, the court focused the prongs of the Cort test (though not overruling it explicitly) on the question of legislative intent, first with Touche Ross & Co. v. Redington in 1979 (where the court wrote that, "The ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law")[6] and then with Alexander v. Sandoval in 2001 (where the court began and ended its "search for Congress's intent with the text and structure of" the statute at issue).[7]
Needless to say, with these three cases, the court provided a very high — and rarely, if ever, met — bar, with one professor noting that Sandoval means that "the Court will virtually never recognize an implied right of action under federal statutes."[8]
Take Sandoval itself for example. At issue was whether a private right of action existed under Section 602 of the Civil Rights Act of 1964, which allows agencies "to effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability."
In the 1979 decision in Cannon v. University of Chicago,[9] the Supreme Court acknowledged that Section 601 contained an implied private right of action, yet the court in Sandoval held no cause of action existed in Section 602: "[W]e have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under § 602."
Essentially, the court refused to find a right of action to enforce a statute's implementing regulations when the statute itself does contain such a right.
In light of this administration's efforts to limit the enforcement of regulations, there must be swift action. Congress's hands are not tied; it can enact legislation to create private rights of action.
Congress could enact a new statute to flip the Supreme Court's narrowing of the Cort test on its head, declaring that implied rights of action should be found when doing so would be consistent with the underlying purpose of a statutory scheme, rather than on legislative intent to create a private right in any particular law.
Congress could also amend the laws the White House and agencies are refusing to enforce to expressly authorize private rights of action for civil violations of statutes or regulations thereunder. Longer term, Congress could ensure express private rights are included in any new regulatory legislation it enacts unless it is absolutely necessary for a private right to be excluded.
Any or all of these paths would go far toward ensuring regulations are fully enforced. Further, where private action rights are expressly written into law, private attorneys must mobilize to bring lawsuits where the Trump administration will not.
President Trump's executive order is premised on the false assumption that regulations are unnecessary and burdensome, denying the reality that regulations protect the air we breathe and water we drink, our health and safety, and our economic prosperity. Congress, and the public, should do everything they can to ensure their strong enforcement.
Todd Phillips is an attorney with the Administrative Conference of the United States and formerly served as counsel to the Committee on Oversight and Government Reform in the U.S. House of Representatives. Any opinions are those of the author and do not reflect the position of the Conference or the federal government.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Executive Order on Regulatory Relief to Support Economic Recovery (May 19, 2020), https://www.whitehouse.gov/presidential-actions/executive-order-regulatory-relief-support-economic-recovery/.
[2] Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (Apr. 10, 2020), https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
[3] All Governmental and Private Sector Partners (Mar. 26, 2020), https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.
[4] 470 U.S. 821 (1985).
[5] 422 U.S. 66.
[6] 442 U.S. 560.
[7] 532 U.S. 275.
[8] Bradford C. Mank, In Praise of Judge Fletcher — And of General Standing Principles, 65 Ala. L. Rev. 473 (2002).
[9] 441 U.S. 677.
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