74% of respondents cited “regulations and enforcement” as their top concern in the most recent Morrison Foerster General Counsel Up-at-Night Report.
Coming at regulatory burdens from a different direction, legal scholars Michael Bommarito II and Daniel Martin Katz found that regulatory references in 10-K filings had increased 4X between 1994 and 2014 (after analyzing more than 160,000 10-K filings with the SEC).
To those (like me) who believe that regulators impose excessive burdens on American businesses large and small — U.S. Supreme Court Justice Anthony Kennedy may have offered a ray of hope yesterday.
EPA, IRS, FCC, and other agencies — whom the High Court has called “the administrative state” — “wield vast power and touch almost every aspect of daily life”. And for the past three decades a judicial doctrine called “Chevron deference” has afforded these agencies considerable insulation from legal challenges.
In Chevron, U.S.A. v. Natural Resources Defense Counsel, Inc. the U.S. Supreme Court established the harmless-sounding principle that a federal court should defer to interpretations of statutes made by those government agencies charged with enforcing them, unless such interpretations are unreasonable.
However innocuous in theory — many view “Chevron deference” as more akin to a blank check for bureaucrats than a careful delineation of delegated congressional authority. As Chief Justice Roberts put it in a case where he dissented from Chevron‘s application:
“We do not leave it to the agency to decide when it is in charge.”