US lawmakers seek to restore separation of powers, judicial review of regulatory agencies

DISTRICT OF COLUMBIA — Legislation to restore accountability to the regulatory process was introduced Thursday by a coalition of lawmakers eager to ensure proper judicial review of administrative agency actions.

The bill, called the “Separation of Powers Restoration Act of 2016,” looks to empower the courts, not agencies, to interpret all questions of law, including both statutes and regulations. If passed, the Act would clarify in the Administrative Procedure Act that courts shall decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”

Sen. Orrin Hatch submitted the following background:

For many years, the nation has witnessed a steady accumulation of power within administrative agencies. As a practical matter, agencies’ power to regulate and to adjudicate has supplanted the legislation and judicial review as the primary means by which governance takes place at the federal level. This trend has only accelerated under President Obama; his major legislative accomplishments such as Obamacare and Dodd-Frank have delegated massive amounts of power to the federal bureaucracy, and the administration has sought aggressively push the bounds of its regulatory authorities.

The central precept undergirding the Constitution is the notion that the preservation of liberty depends on the separation of powers among branches capable of checking the excesses of each other.

As James Madison put it in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

By definition, the accumulation of power within administrative agencies represents a shift away from the constitutional separation of powers and the liberty it protects.

Insulated from the checks and balances on its authority, the federal bureaucracy has now imposed an estimated $1.88 trillion burden on the economy annually, according to the Competitive Enterprise Institute. That equals roughly $15,000 per household and 11.5 percent of the nation’s 2012 GDP. It is more than $300 billion higher than combined individual and corporate federal income tax receipts and equivalent to 85 percent of U.S. corporate profits in 2013.

Judicial review represents the most effective remaining independent check on regulation and administrative action.

One of the primary means by which the judiciary checks the otherwise-unbridled powers of federal bureaucracy is by evaluating whether an agency’s action violates the law. In such cases, the paramount matter in contention is the meaning of the law at issue.

For many years, the courts’ held that when considering the meaning of legal text, “(i)t is for the courts, not the (agencies), ultimately to determine as a matter of law what they include.” Fed. Trade Comm’n v. Gratz, 253 U.S. 421, 427 (1920). This approach was anchored in Chief Justice John Marshall’s seminal words in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), that “i(t) is emphatically the province and duty of the Judicial Department to say what the law is.”

However, in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court held that courts should defer to an agency’s interpretation of a statute as long as the statute is “ambiguous” and the agency’s reading is “reasonable.”

In practice, these terms are interpreted extraordinarily leniently for agencies. In subsequent cases, the Supreme Court has extended similar deference to other legal interpretations by agencies. For example, in Auer v. Robbins, 519 U.S. 453 (1997), the Court applied the Chevron standard to agencies’ interpretations of their own regulations.

Furthermore, in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that statutory interpretations by an administrative agency can override previous interpretations by federal courts, and in City of Arlington, Tex. v. Fed. Commc’ns Comm., 133 S. Ct. 1863 (2013), the Supreme Court even went so far as to hold that a court must defer to an agency’s interpretation that concerns the scope of the agency’s jurisdiction.

The bills 

The Senate bill was introduced by Sens. Hatch, Utah; Grassley, Iowa; Lee, Utah; Sen Lankford, Oklahoma; Flake, Arizona; Inhofe, Oklahoma; Tillis, North Carolina; Cruz, Texas; Cornyn, Texas; Sasse, Nebraska; and Sullivan, Arkansas.

See the text of the Senate bill here: 2016 SB (number pending) introducing Separation of Powers Restoration Act of 2016

The House bill was introduced by Reps. Ratcliffe, Texas; Goodlatte, Virginia; Marino, Pennsylvania; Chaffetz, Utah; Buck, Colorado; Yoho Florida; S. King, Iowa; Bryne, Alabama; Babin, Texas; M. Brooks Alabama; Brat, Virginia; Love, Utah; Salmon, Arizona; Hensarling, Texas; Rouzer, North Carolina; Bishop, Michigan; Palmer, Alabama; Messer, Indiana; Mulvaney South Carolina; Labrador, Idaho; Trott, Michigan; Mullin, Oklahoma; Sensenbrenner, Wisconsin; Schweikert, Arizona; DeSantis, Florida; Loudermilk, Georgia; Issa, California; Westerman, Arkansas; Burgess, Texas; Culberson, Texas; Lummis, Wyoming; Walker, North Carolina; Olson, Texas; J. Smith, Missouri; Kelly, Pennsylvania; Renacci, Ohio; Gosar, Arizona; McMorris Rodgers, Washington; LaMalfa, California; D. Collins, Georgia; Graves, Georgia; Franks, Arizona; Farenthold, Texas; Griffith, Virginia; L. Smith, Texas; and Chabot, Ohio.

See the text of the House bill here: 2016 HR 4768 introducing the Separation of Powers Act of 2016. The bill was referred to House Committee on the Judiciary Wednesday.

Commentary 

Hatch said:

The federal regulatory process is broken. Washington bureaucrats impose expensive and often unnecessary rules that strain family budgets and impede our ability to create jobs. In this environment, the courts stand as the only truly independent check on out-of-control regulators, but judicial deference to the agencies undercuts the courts’ ability to hold the government accountable to the law. Our bill restores accountability to the regulatory process by ensuring that the courts say what the law is, not what the agencies wish the law would be.

Grassley said:

Regulators have taken advantage of the courts’ deference under Chevron to shoehorn the law into their own political agenda, expanding their authority well beyond congressional intent. But the Constitution’s separation of powers makes clear that it is the responsibility of the courts – not the bureaucracy – to interpret the law. And they should do so independently.  This bill reasserts the clear lines between the courts’ role in interpreting the law, and the Executive Branch’s role in enforcing the law.  By doing so, it takes a strong step toward reining in the regulators.

Lee said:

In practice Chevron deference has become a direct threat to the rule of law and the moral underpinnings of America’s constitutional order. The Separation of Powers Restoration Act of 2016 will restore that balance by bringing back traditional judicial review of administrative actions.

Lankford said:

This bill addresses the core problem of executive agencies inventing new law on the American people rather than applying existing law from the American people. Deference to the executive branch creates an imbalance in our constitutional system’s balance of powers, favoring centralized executive power over the legislative and judicial powers. The result is that the vast majority of laws burdening everyday Americans come not from politically accountable officials in Congress, but from unelected bureaucrats in federal agencies. Through several hearings before my Regulatory Affairs Subcommittee, it has become apparent that the Chevron and Auer doctrines harm everyday Americans. This is not how the Founders intended for government to work. To restore Congress’ and the courts’ role in our constitutional system, we need the Separation of Powers Restoration Act to ensure that agencies don’t get a blank check to make and interpret law.

Flake said:

This bill will help restore the proper balance of power in our constitutional system. In today’s world of vast executive agencies it is important for courts to provide serious review of actions taken by these agencies and that is exactly what this legislation will do.

Inhofe said:

At the core of our unique system of government are three equal branches – the legislative, executive, and judiciary. However, under the Obama administration, executive branch overreach has upset that balance.  The Environmental Protection Agency has repeatedly been among the worst offenders.  The American people can no longer afford EPA’s costly and lawless regulatory actions premised on the notion of agency deference.  This ‘just trust us’ mentality is not enough. This bill is an important step to restore the necessary balance among the branches and protect the American people from excessive executive overreach.

Tillis said:

One of the biggest challenges facing our nation is a large and cumbersome regulatory environment that negatively affects hardworking American families and business, and impedes our nation’s economic growth and potential. After eight years of unprecedented executive bureaucratic overreach, this legislation takes necessary steps to hold unelected bureaucrats and regulators accountable by restoring the proper separation of powers to the legislative and judicial branches.

Cruz said:

At a time when runaway executive agencies are more unwieldy than ever, empowered by a lawless president, Congress must act to reassert and restore its appropriate place as a coequal branch of government. It is encouraging to see members in both houses working together to stop unelected bureaucrats, who are wreaking havoc on our nation’s economy as well as the Constitution. This bill reverses the trend of enabling bureaucracy at the expense of Congress and the courts.

Sasse said:

Washington’s unelected bureaucracy is not a super-legislature but too often it acts like a fourth branch of government. This bill takes an important step to restore the Constitution’s system of three separate branches of government with specifically defined duties on behalf of the American people.

Sullivan said:

When courts rely on the Chevron doctrine, congressional authority is undermined. As the power of the regulation nation grows, the rule of law is increasingly ignored. It’s time for Congress to act. This simple change in the law will reinforce the constitutionally mandated division of authority between the three branches of government.

Ratcliffe said:

The endless stream of rules and regulations being rolled out by federal agencies has real consequences for real people all across the country. Unelected federal bureaucrats are not accountable to the American people and can’t be voted out of office; yet, they wield immense power to impose regulations that have the force of law. I’m grateful to be a part of the solution today as we introduce this important legislation to rein in an administrative state that has been allowed to wield immense lawmaking power outside of the will of the Constitution.

Goodlatte said:

Today’s federal administrative state is an institution unforeseen by the Framers of our Constitution, that is rapidly mushrooming out of control. This overgrown bureaucracy is tipping our system of checks and balances away from the legislative and judicial branches, and towards a stronger, emboldened, and overreaching executive. The precedent set by Chevron has been a catalyst for a runaway administrative state, and we are undertaking a strong, bicameral effort to bring balance back to our federal government.

Marino, subcommittee chairman, said:

I am grateful to my colleagues in the House and Senate for their efforts on this bill. Our Founders envisioned three separate but equal branches of government.  But for too long, we in Congress have skirted our duties by drafting weak legislation, that empowers rather than constrains the ever growing administrative state.  The Supreme Court’s Chevron decision only worsened this problem, as the Court abdicated its own role as the ultimate judge of the law. Today’s bill curtails the overreach of executive agencies at the source of their power, the Administrative Procedure Act, and begins the important steps of returning control of the government to the people, through Congress.

Hensarling said:

Congress has largely outsourced its Article I, Section I legislative powers to the Executive, empowering bureaucrats while relegating itself to the legislative sidelines. Exacerbating this congressional self-enfeeblement is a legal doctrine established by the Supreme Court known as Chevron Deference. This is the foundation of the so-called Fourth Branch of government, in which federal agencies have become legislator, prosecutor, judge, and jury.  It’s past time for Congress to take back its constitutional authority. That is why Senator Lee and I started the Article I Project (A1P). The ‘Separation of Powers Act’ is a small but vital first step towards fulfilling the mission of A1P.

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2 Comments

  • BIG GUY March 19, 2016 at 2:44 pm

    This issue is vitally important to all citizens. While progressives–whose pet issues have been advanced by the Obama administration–may feel threatened, they need to realize that a President Trump or a President Cruz would unravel much of what they feel is progress by deregulating coal or undoing net neutrality. Flip flops of these kinds every few years would make a mockery of government.

    We all benefit when the law is enforced and suffer when the executive makes his/her own “law” via partisan interpretation of existing laws.

  • izzymuse March 20, 2016 at 9:41 am

    Can we legalize the U.S. Constitution? How about that? Wouldn’t that be amazing to see freedom as envisioned by the founders of their country? It’s been a long time since America has experienced true Liberty since being hijacked by lobbyists, crony capitalists, and special interest groups!

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