Blaming the D.C. Circuit for Regulatory Failure?
Washington Post columnist Steve Pearlstein offers a novel explanation for “regulatory failure.” The D.C. Circuit, has, Pearlstein asserts, “has intimidated, undermined and demoralized the regulatory apparatus” by giving insufficient deference to regulators and “opinions that routinely ignore the plain language of statute and the clear intent of Congress.” Pearlstein holds up three Republican appointees as examples of this sort of runaway anti-regulatory judicial activism. Strong stuff. What’s the evidence? Pearlstein relies on the recent Comcast v. FCC, an opinion authored by Judge Tatel (Clinton appointee, in case you were wondering). It is also worth noting that two of the judges cited have taken senior status and only Kavanaugh joined recently. Pearlstein then refers to the D.C. Circuit’s review of the Federal Trade Commission’s case against Rambus. He describes it as follows…
