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The Buckeye Institute Testifies Before Congressional Committee
Columbus, OH – On Tuesday, The Buckeye Institute testified (download a PDF) before the U.S. House of Representatives Subcommittee on the Constitution and Limited Government, a subcommittee of the U.S. House Judiciary Committee.
In
his testimony, Andrew M. Grossman, a senior legal fellow at The Buckeye
Institute, highlighted the “use and abuse of ‘sue and settle’ tactics
in litigation against the government,” which Grossman noted, “seeks to
compel [federal] agency action, set agency priorities, and (in some
instances) influence the content of regulations or other agency
actions.”
Noting
that the federal regulators are sometimes “only too happy to face
collusive lawsuits by friendly ‘foes,’” Grossman told the Subcommittee
that the U.S. Environmental Protection Agency entered into “more than
sixty such settlements” in the first term of the Obama Administration
alone, forcing the EPA to publish more than one hundred new regulations
“at a cost to the economy of tens of billions of dollars.” Upon entering office, Grossman noted that the Trump Administration ended
the abuse of sue and settle, declaring, “The days of regulation through
litigation are over.” Unfortunately, the Biden Administration quickly revived the practice.
Grossman
went on to outline “common-sense reforms” that Congress can adopt to
“provide for transparency and accountability in settlements and consent
decrees,” recommendations which were “reflected in the Sunshine for Regulatory Decrees and Settlements Act.”
Grossman also urged Congress to consider a more comprehensive approach
that “limits the ability of third parties to compel Executive Branch
action” and would ensure that “the public interest” wasn’t subordinated
to “special interests.”
Congress isn't the only government institution that can act. Grossman recommended the Department of Justice readopt the Meese Policy.
Named after Edwin Meese III, U.S. attorney general under President
Ronald Reagan, the policy addressed the “fundamental problem of sue and
settle” and “block[ed] agencies from relinquishing their discretionary
authority to outside groups.” Grossman noted, “An administration that
embraces the Meese Policy will benefit from greater flexibility,
improved transparency, and, ultimately, better policy results.”
In
closing, Grossman reminded the Subcommittee that “collusive settlements
that govern the federal government’s future actions raise serious
constitutional and policy questions” and “evade democratic
accountability.”
In
addition to serving as a senior legal fellow at Buckeye, Grossman is an
adjunct scholar at the Cato Institute and a partner in the Washington,
D.C., office of Baker & Hostetler LLP.
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