http://www.washingtonmonthly.com/features/2007/0703.levine.html
Enter Philip Perry. When Michael Chertoff was nominated to head the DHS in 2005, he had asked Perry to join him as the department’s general counsel. The two were not only colleagues at Latham & Watkins but also members of the conservative Federalist Society, and they were of like minds in their general distrust of government regulation of business. By the summer of 2006, as various bills competed for attention, Perry’s services were in great demand. “Industry went back to the well,” says one DHS official.
Perry came through in a characteristically concealed manner. When it became clear that Collins-Lieberman was going nowhere, Perry went searching for a new vehicle to get more industry-friendly results. He would find it in a DHS appropriations bill in the Senate, to which had been attached an obscure amendment giving the DHS short-term regulatory authority over chemical security. Perry reworked the language and helped to get it added to the spending bill in a conference committee. Under the new amendment, the DHS would have nominal authority to regulate the chemical industry but also have its hands tied where required. For example, the DHS would be barred from requiring any specific security measures, and citizens would be prohibited from suing to enforce the law. Best of all for industry, while the bill didn’t mention giving the DHS preemption authority, it didn’t bar it, either, leaving a modicum of wiggle room on the subject. In other words, if Perry was sufficiently brazen, he could claim for the DHS the power to nullify the chemical regulations in New Jersey.
He was sufficiently brazen. When the DHS finally unveiled its proposed regulations in late December of last year, Hill staffers noticed that the department had effectively granted itself the power to set aside state laws, even though the new federal law didn’t expressly grant such authority. Lawmakers on both sides of the aisle were livid. “In order to please their cronies in the chemical industry, the Bush administration is willing to put the health and safety of millions of people at risk,” said Sen. Frank Lautenberg (D-N.J.). Senator Collins, for her part, released a statement accusing the DHS of attempting to create regulatory powers “out of whole cloth.” It was indeed curious that Perry, who had been so cautious about allowing the EPA to claim regulatory authority in the Clean Air Act, should now be so bold in interpreting the language in an appropriations rider. Or perhaps it wasn’t so curious at all.
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