Executive Vice President and Chief Counsel, U.S. Chamber Litigation Center, U.S. Chamber of Commerce
January 16, 2024
Business is facing an unprecedented federal regulatory agenda. With Congress enacting relatively little legislation, the regulatory state is taking on that role. Ideologically driven regulations are cutting across American industry and imposing huge costs on business. And companies are taking notice. The U.S. Chamber recently surveyed a decade of 10-K filings from the S&P 500 and found a large uptick in terms associated with public policy risk, like regulation. These regulatory burdens add up to a systemic threat to free enterprise.
As federal agencies pursue aggressive policy changes through regulation, the Chamber is leveraging its litigation expertise to address these threats.
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Proliferation of Regulations
Over the next 12 months, the Administration plans to act on some 2,524 regulatory items. Of these, the Administration has 1,075 rules to finalize, with an additional 1,357 in the pipeline, where the next step is proposing a rule or completing public comments. To avoid the possibility that the next Congress and administration could use the Congressional Review Act to block various rules, agencies are rushing to complete actions before mid-summer.
But this regulatory proliferation doesn’t tell the whole story. Historically, agencies have identified proposed rules that they expect to have an economically significant impact of $100 million or more a year. Last year, President Biden adjusted the threshold to $200 million. Even with the higher threshold, the number of economically significant regulations under active consideration today is still 69 percent higher than at the same point in the Obama administration.
This still undercounts the true cost. For example, because of the way regulatory costs are disclosed, none of the SEC’s proposed rules are categorized as having a cost over $200 million, even though some of them far exceed the threshold.
We are responding to this government overreach as a whole-of-Chamber. Our policy teams are submitting comments on agency rules and engaging with agency leadership. And our Litigation Center is taking federal agencies to court, bringing direct legal challenges against regulators for their overreach.
Over the past five years, the Litigation Center has filed lawsuits against 11 federal agencies. Last year, it ended with 24 pending lawsuits and secured an 83 percent win rate in party litigation. With more high-end talent than the appellate groups in most DC law firms, the Chamber Litigation Center is taking on the big cases, the most important for free enterprise, and shaping the law by securing precedent-setting victories in court.
Top Regulatory Targets
Looking ahead, we expect to make a real dent in the Administration’s regulatory agenda. Bringing lawsuits is one of the most important tools we have to fight the enormous regulatory burdens businesses are facing today. The Chamber and its Litigation Center are committed to challenging a score of rules that pose a significant threat to America’s economic growth and competitiveness.
Here are rules that the Chamber is watching in 2024:
- Climate Disclosure Rule
- Human Capital Rule
- Swing Pricing Rule (Open End Fund Rule)
- Custody Rule
- Noncompete Rule
- Commercial Surveillance and Data Privacy Rule
- Hart-Scott-Rodino Changes
- Unfair & Deceptive Fees Rule
- Negative Option Rule
- Credit Card Late Fees Rule
Fed, OCC, and FDIC
- Community Reinvestment Act Rule*
- Basel III Implementation
- Independent Contractor Rule
- Overtime Rule
- Rule Designating PFOA and PFOS as CERCLA Hazardous Substances
- National Ambient Air Quality Standards for Particulate Matter
- Power-Plant Greenhouse Gas Emissions Rule
- Risk Management Program Rule
- Vehicle Tailpipe Emissions Rule
- Digital Discrimination Rule*
- Title II Reclassification Rule
- PCAOB Auditing Standard Rule
- FAR Council Federal Contractor Climate Rule
- California Climate Disclosure Laws*
Federal and state regulators should create a regulatory environment that fosters innovation, competition, and growth for businesses, not create burdensome regulations for U.S. businesses. The U.S. Chamber’s top priority is fighting—and winning—for business. We are prepared to challenge government overreach and defend the rule of law.
*A lawsuit has been filed in 2024
About the authors
Daryl Joseffer is executive vice president and chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. In this role, Joseffer handles a variety of litigation matters for the Chamber. He has argued 12 cases in the U.S. Supreme Court and dozens of appeals in other courts across the country.