SEPARATION OF POWERS RESTORATION ACT OF 2016; Congressional Record Vol. 162, No. 111
(House of Representatives - July 11, 2016)

Text available as:

Formatting necessary for an accurate reading of this text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF.


[Pages H4615-H4622]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              SEPARATION OF POWERS RESTORATION ACT OF 2016


                             General Leave

  Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks and include extraneous material on H.R. 4768.
  The SPEAKER pro tempore (Mr. Heck of Nevada). Is there objection to 
the request of the gentleman from Virginia?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to House Resolution 796 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the state of the Union for the consideration of the bill, H.R. 4768.
  The Chair appoints the gentleman from Virginia (Mr. Rigell) to 
preside over the Committee of the Whole.

                              {time}  1742


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the state of the Union for the consideration of the bill 
(H.R. 4768) to amend title 5, United States Code, with respect to the 
judicial review of agency interpretations of statutory and regulatory 
provisions, with Mr. Rigell in the chair.
  The Clerk read the title of the bill.
  The CHAIR. Pursuant to the rule, the bill is considered read the 
first time.
  The gentleman from Virginia (Mr. Goodlatte) and the gentleman from 
Georgia (Mr. Johnson) each will control 30 minutes.
  The Chair recognizes the gentleman from Virginia (Mr. Goodlatte).
  Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may 
consume.
  The need for the Separation of Powers Restoration Act of 2016 to 
restore balance in our Federal system is clear. The modern Federal 
administrative state is an institution unforeseen by the Framers of our 
Constitution and rapidly mushrooming out of control.
  This legislation takes square aim at one of the biggest roots of this 
problem, the Chevron Doctrine, under which Federal courts regularly 
defer to regulatory agencies' self-serving and often politicized 
interpretations of the statutes they administer. This includes 
interpretations like those that underlie the EPA's Clean Power Plan and 
waters of the United States rules. These are just a few examples of 
rules consciously designed by regulatory agencies to violate Congress' 
intent. They threaten to wipe out the Nation's key fuel for electric 
power generation and extend the EPA's permitting tentacles into every 
puddle in every American backyard.
  This bill also takes on the related Auer doctrine, under which courts 
defer to agencies' self-serving interpretations of their own 
regulations. Auer and Chevron deference work hand in hand to expand the 
power of Federal bureaucrats to impose whatever decision they want as 
often as they can, escaping, whenever possible, meaningful checks and 
balances from the courts.

                              {time}  1745

  In perhaps the most famous of the Supreme Court's earlier decisions, 
Marbury v. Madison, Chief Justice Marshall declared for a unanimous 
Court that ``it is emphatically the province and duty of the Judicial 
Department to say what the law is.''
  Since the Chevron doctrine allows judges to evade interpreting the 
law, and instead to defer to agencies' interpretations, one must ask: 
Is Chevron faithful to Marbury and the separation of powers?
  In the Administrative Procedure Act of 1946, often called the 
constitution of administrative law, Congress provided for judicial 
review of agency action in terms that were plain and direct. It stated 
that ``the reviewing court shall decide all relevant questions of law 
and interpret constitutional and statutory provisions.''
  That standard is consistent with Marbury and the separation of 
powers.

[[Page H4616]]

But since Chevron allows judges to escape interpreting statutory 
provisions themselves, one must ask: Is Chevron unfaithful not only to 
Marbury and the separation of powers, but also to the Administrative 
Procedure Act?
  These are not just academic questions. They are fundamental questions 
that go to the heart of how our government works and whether the 
American people can still control it.
  Judicial deference under Chevron weakens the separation of powers, 
threatening liberty. It bleeds out of the judicial branch power to 
interpret the law, transfusing that power into the executive branch. 
And it tempts Congress to let the hardest work of legislating bleed out 
of Congress and into the executive branch since Congress knows judges 
will defer to agency interpretations of ambiguities and gaps in 
statutes Congress did not truly finish.
  This leads us down the dangerous slope James Madison warned against 
in Federalist 47: ``The accumulation of all powers, legislative, 
executive, and judiciary, in the same hands,'' that ``may justly be 
pronounced the very definition of tyranny.''
  The Separation of Powers Restoration Act of 2016 is timely, bold 
legislation directed straight at stopping our slide down that dangerous 
slope. In one fell swoop, it restores the separation of powers by 
legislatively overturning the Chevron doctrine and the related Auer 
doctrine.
  This is reform we must make reality for the good of the American 
people. I want to thank Representative Ratcliffe for his introduction 
of this important legislation, and I urge my colleagues to support the 
Separation of Powers Restoration Act.
  Mr. Chair, I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Chair, I yield myself such time as I may 
consume.
  Judicial review of final agency action is a hallmark of 
administrative law and is critical to ensuring that agency action does 
not harm or adversely affect the public. But as the Supreme Court held 
in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 
reviewing courts may only invalidate an agency action when it violates 
a constitutional provision or when an agency unreasonably exceeds its 
statutory authority as clearly expressed by Congress.
  For the past 30 years, this seminal decision has required deference 
to the substantive expertise and political accountability of Federal 
agencies. As the Court explained in Chevron: ``Federal judges--who have 
no constituency--have a duty to respect legitimate policy choices made 
by those who do. The responsibilities for assessing the wisdom of such 
policy choices and resolving the struggle between competing views of 
the public event are not judicial ones: `Our Constitution vests such 
responsibilities in the political branches.'''
  H.R. 4768, the Separation of Powers Restoration Act of 2016, would 
eliminate this longstanding tradition of judicial deference to 
agencies' interpretation of statutes and rules by requiring courts to 
review agency action on a de novo basis.
  This misguided legislation is not the majority's first attempt to 
gum-up the rulemaking process through enhanced judicial review. Since 
the 112th Congress, a number of deregulatory bills we have considered, 
such as H.R. 185, the Regulatory Accountability Act, would require 
generalist courts to supplant the expertise and political 
accountability of agencies in the rulemaking process with their own 
judgments.
  Compare this approach with other deregulatory bills passed by this 
Congress that would greatly diminish judicial review of deregulatory 
actions by dramatically shortening the statute of limitations for 
judicial review, sometimes to just 45 days.
  In other words, the majority wants to have it both ways. When it 
benefits corporate interests, Republican legislation heightens scrutiny 
of agency rulemaking, like this act does, threatening to impose years 
of delay and untold costs on taxpayers. When it benefits the public or 
our environment, Republican legislation slams the courthouse door shut 
through sweeping restrictions on the court's ability to protect public 
health or the environment.
  These proposals are transparently the design of special interest fat 
cats to minimize their exposure to legal accountability. H.R. 4768 is 
more of the same. At a minimum, this bill will delay and possibly 
derail the ability of agencies to safeguard public health and safety.
  Without any constraints on judicial review, the bill will also 
incentivize judicial activism by allowing a reviewing court to 
substitute its own policy preferences for those of the agency, which 
Congress has specifically entrusted with rulemaking authority.
  In other words, this bill resolves a perceived imbalance between the 
branches by granting immense authority to the judicial branch so that 
it may act as a super regulator through judicial fiat.
  In a letter opposing this bill, a group of the Nation's leading 
administrative law professors underscored this point, arguing that the 
bill is motivated by policy disagreements, not actual concerns with 
judicial deference.
  I strongly oppose H.R. 4768 and urge my colleagues to do the same.
  Mr. Chairman, I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Chairman, I yield 5 minutes to the gentleman from 
Texas (Mr. Ratcliffe), the chief sponsor of this legislation and a 
member of the House Judiciary Committee.
  Mr. RATCLIFFE. Mr. Chair, I rise in support of the Separation of 
Powers Restoration Act of 2016.
  I want to thank Chairman Goodlatte for giving me the opportunity to 
lead on this issue. I also want to thank the 113 Members of Congress 
who believe this bill is important enough to cosponsor it.
  It is my sincere hope that all 435 Members of this House will vote in 
support of this incredibly important bill because every Member of this 
body took an oath to defend the Constitution and none of us should 
accept the constitutional erosion and infringement that is having a 
devastating impact on the very constituents that we all swore to 
represent.
  Mr. Chair, I ran for Congress because I wanted the opportunity to 
address the big issues of our time, to address the real problems that 
are hurting all Americans, and the Separation of Powers Restoration Act 
does exactly that. That bill repeals the so-called Chevron doctrine 
and, in so doing, will restore the constitutional separation of powers 
that our Founding Fathers intended.

  Named for the Supreme Court's 1984 decision in Chevron USA, Inc. v. 
Natural Resource Defense Council, Inc., the Chevron doctrine has, for 
three decades, required courts to defer to agency interpretations of 
ambiguous laws. Said more plainly, Mr. Chair, this means that when 
American citizens and businesses challenge Federal regulators in court, 
the deck is stacked in favor of the regulators.
  Chevron deference is one of the, if not the primary, driving forces 
behind an outrageous expansion of a regulatory branch that our Founding 
Fathers never intended and one that is crippling the American economy 
and the American people.
  Unelected bureaucrats now draft regulations with the Chevron doctrine 
in mind, knowing that it will give them the ability to regulate, 
sometimes for political gain, beyond the actual scope of the statutes 
that we pass as the duly elected representatives of the people.
  Mr. Chair, by allowing unelected, unaccountable regulators to 
effectively grade their own papers, we are circumventing the will of 
the American people.
  Under Chevron, Congress can't prevent agencies from engaging in de 
facto lawmaking and courts are abdicating their constitutional 
responsibility to interpret laws. My bill will very simply fix this 
perversion of our Constitution by ensuring that Congress, not agencies, 
writes the laws; and that courts, not agencies, interpret the laws.
  Mr. Chair, it is vitally important to stress that my bill is entirely 
agnostic to specific policy issues. It doesn't specifically support or 
oppose any certain regulatory actions. This bill is simply about 
defending the Constitution and reestablishing three coequal branches of 
government. This is not and should not be a partisan issue.
  The candid truth, Mr. Chair, is that the Chevron doctrine has been 
abused by Democrat and Republican administrations alike for three 
decades. Both have been guilty of abusing the separation of powers for 
political expedience,

[[Page H4617]]

and it is the American people who have been victimized by this. So 
let's end it. Let's finally fix a problem that plagues all Americans.
  Mr. Chair, many of us believe that the American experiment has 
endured, in large part, because of the wisdom and the thoughtful manner 
in which our framers crafted our Constitution. I refuse to believe that 
we can't all at least agree on that. I refuse to believe that restoring 
three coequal branches of government needs to be controversial.
  Today this body has an opportunity to stand up for and with the 
American people and stand against overreaching bureaucrats that the 
American people never elected. So, Mr. Chair, when the Constitution is 
restored, it is the American people who will win.

       Dear Members of Congress: We write to express support for 
     the Separation of Powers Act (SOPRA) (H.R. 4768 and S. 2724) 
     which would require courts to check regulatory overreach. As 
     organizations dedicated to a free and open Internet, we 
     believe SOPRA would be especially important in restoring 
     judicial oversight of the FCC--and thus protecting Internet 
     freedom from government overreach.
       Two Supreme Court decisions, Chevron v. NRDC (1984) and 
     Auer v. Robbins (1997), mean that courts generally grant 
     broad deference to administrative agencies in interpreting 
     ambiguous statutes and agency regulations. Only because of 
     Chevron deference did two (of three) D.C. Circuit judges 
     recently vote to uphold the FCC's 2015 Open Internet Order.
       That decision gave the FCC a blank check to regulate the 
     Internet as it sees fit, even to the point of effectively 
     rewriting the Telecommunications Act of 1996. The Open 
     Internet Order represented a fundamental break from the 
     light-touch, bipartisan approach that had allowed the 
     Internet to flourish for nearly two decades.
       Despite the FCC's talk of protecting ``net neutrality,'' 
     the FCC went well beyond that: reclassifying broadband under 
     Title II of the 1934 Communications Act and claiming sweeping 
     power over broadband. Under the panel majority's blind 
     Chevron deference to the FCC, it is hard to see how the 
     courts could stop the FCC from extending such outmoded 
     regulations to ``edge'' companies like Facebook and Google, 
     too. Similarly, while the FCC has promised to ``forebear'' 
     from certain provisions of Title II, the court's decision 
     suggests that the FCC would get deference in unforbearing--
     which could result in the full weight of Title II being 
     imposed on the Internet. Or, conversely, a deregulatory-
     minded FCC could use forbearance to gut not just the Order, 
     but much of the existing regulations.
       In short, the majority's view of Chevron means Internet 
     regulation will now be a game of political pingpong--with the 
     courts resigned to sitting on the sidelines, watching the 
     ball bounce back and forth. This ongoing uncertainty is 
     particularly damaging to small businesses, who often lack the 
     resources needed to comply with shifting regulatory burdens 
     and litigate against unfavorable regulatory changes.
       SOPRA would restore the Judiciary's constitutional role in 
     checking agency overreach and preventing excessive 
     regulations from impeding innovation and economic growth. 
     Specifically, the bill would clarify that the Administrative 
     Procedure Act requires courts to conduct a new review of 
     relevant questions of law when evaluating agency 
     regulations--rather than simply deferring to the agency's 
     judgment.
           Sincerely,
       TechFreedom, American Commitment, American Consumer 
     Institute, Americans for Tax Reform, Center for Freedom and 
     Prosperity, Civitas Institute, Competitive Enterprise 
     Institute, Digital Liberty, Free the People, Independent 
     Women's Forum, Institute for Liberty, Less Government, 
     Mississippi Center for Public Policy, National Taxpayers 
     Union, Protect Internet Freedom, Rio Grande Foundation, 
     Taxpayers Protection Alliance, Tech Knowledge.
                                  ____

       Dear Members of Congress: On behalf of our organizations 
     and the millions of Americans we represent, we are writing to 
     express our strong support for H.R. 4768 and S. 2724, the 
     Separation of Powers Restoration Act (SOPRA). This law would 
     give courts the clarity they need to interpret powers 
     ambiguously delegated to administrative agencies.
       Congress has, from time to time, been unclear as to the 
     extent of powers it delegates to agencies. Consequently, the 
     courts have adopted two doctrines, known as Chevron and Auer 
     after the cases Chevron USA Inc. v. NRDC and Auer v. Robins, 
     which grant great deference to agency interpretations of the 
     ambiguities. Chevron represents a general presumption that 
     courts should defer to agency interpretation of statues, 
     while Auer requires that courts defer to agency 
     interpretations of their own regulations.
       In Marbury v. Madison, Chief Justice John Marshall wrote, 
     ``It is emphatically the province and duty of the Judicial 
     Department to say what the law is.'' In Chevron v. NRDC, 
     Justice John Paul Stevens said it was the province of 
     executive branch agencies to say what the law is.
       While these doctrines reflect a concern for a lack of 
     expertise in the courts, their effect can be to give 
     bureaucrats the power to make new law. For instance, in 
     Babbitt v. Sweet Home Chapters of Communities for a Great 
     Oregon, the Supreme Court used Chevron to defer to the 
     Secretary of the Interior when he redefined long-accepted 
     meanings of ``taking'' wildlife to include unintentional harm 
     to an endangered species, greatly expanding the Secretary's 
     power and control over Americans.
       Auer provides a perverse incentive for an agency to issue 
     deliberately vague regulations that it can reinterpret as it 
     chooses, avoiding the notice-and-comment requirements of the 
     Administrative Procedure Act for a change in regulation. A 
     recent court decision may even allow the agency effectively 
     to rewrite the statute by reinterpreting a vague term in a 
     regulation that also appears in the statute.
       In our view, this combination of delegation and deference 
     represents an unjust expansion of administrative power at the 
     expense of the legislative and judicial powers, contrary to 
     the ideals of the American founding.
       SOPRA would amend the Administrative Procedure Act to 
     require courts to conduct a de novo (from scratch) review of 
     all relevant questions of law and regulation when they are 
     called into question. This represents a vital step in 
     restoring the courts to their proper role as arbiters of 
     statutory interpretation.
       Before Chevron, courts relied on agency expertise to guide 
     their decision making, but they did not cede their 
     fundamental responsibility to interpret the meaning of 
     statutes to agencies. SOPRA would restore that discretion.
       Millions of Americans are suffering under the weight of 
     burdensome regulation, and often find themselves unable to 
     challenge effectively unjust rules as a result of these 
     judicial doctrines. SOPRA is one of the ways in which we can 
     lift this oppressive burden from their backs.
       Thank you for your consideration,
       Competitive Enterprise Institute, American Commitment, 
     American Energy Alliance, Americans for Prosperity, Americans 
     for Competitive Enterprise, Americans for Tax Reform, 
     Campaign for Liberty, Frontiers of Freedom, Heritage Action 
     for America, Institute for Liberty, Less Government, National 
     Center for Public Policy Research, National Taxpayers Union, 
     60 Plus Association, Taxpayers Protection Alliance.

  Mr. JOHNSON of Georgia. Mr. Chair, I yield such time as he may 
consume to the gentleman from Michigan (Mr. Conyers).
  Mr. CONYERS. Mr. Chair, members of the committee and the House 
Representatives, I rise in strong opposition to H.R. 4768, the 
Separation of Powers Restoration Act.
  By eliminating judicial deference to agency determinations, the bill 
would make the already ossified rulemaking process even more time 
consuming and costly, threatening the ability of Federal regulatory 
agencies to protect public health and safety. This is true for several 
reasons.
  Ironically, for a bill that purports to restore separation of powers, 
H.R. 4768 actually raises separation of power concerns. It is ironic, 
but accurate. Congress makes the laws and agencies implement them while 
the courts are supposed to interpret the law.
  The Supreme Court has long recognized that Congress may 
constitutionally delegate its authority to agencies through statutes to 
promulgate rules to implement the law it passes, with democratic 
accountability stemming from the fact that Congress can always rescind 
or narrow the scope of that delegation.
  We specifically entrust these agencies, not the courts, with broad 
policymaking authority. Yet, by removing constraints on judicial review 
of agency action, H.R. 4768 would empower generalist and unelected 
courts to nullify agency action solely on policy grounds, substituting 
the administrative record with their own policy preferences.

                              {time}  1800

  Such authority would go beyond the traditional bounds of the judicial 
role, as the Federal courts themselves have thus far recognized through 
their deference to agencies.
  H.R. 4768 would upend the careful and longstanding balance among the 
three branches of government, all in the name of serving anti-
regulatory corporate interests.
  In addition, this measure would encourage judicial activism. By 
eliminating judicial deference, the bill would effectively empower the 
courts to make public policy from the bench, even though they may lack 
the specialized expertise and democratic accountability that agencies 
possess, through delegated authority from and oversight by the American 
people's elected representatives.

[[Page H4618]]

  Although the Supreme Court has had numerous opportunities to expand 
judicial review of rulemaking, thankfully, the Court has rejected this 
approach in recognition of the fact that generalist courts simply lack 
the subject-matter expertise of agencies, are politically 
unaccountable, and should not engage in making substantive 
determinations from the bench.
  It is somewhat ironic that some who have long decried ``judicial 
activism'' would now support facilitating a greater role for the 
judiciary in agency rulemaking.
  Finally, H.R. 4768 would result in regulatory paralysis and, thereby, 
undermine public health and safety.
  Regulations are the result of years--very often many years--of 
careful deliberation and expert analysis. Typically, after an agency 
first proposes a rulemaking, it must solicit public comment. The agency 
then analyzes this input and, after further deliberation, promulgates a 
final rule.
  Additionally, for certain rules, agencies must undergo further 
procedures such as conducting a cost-benefit analysis and a separate 
analysis of the rule's potential impact on small businesses. This is a 
time-consuming process that some believe is already too inflexible.
  Mr. Chair, I rise in strong opposition to H.R. 4768, the Separation 
of Powers Restoration Act of 2016.
  By eliminating judicial deference to agency determinations, the bill 
would make the already ossified rulemaking process even more time-
consuming and costly, threatening the ability of federal regulatory 
agencies to protect public health and safety.
  This is true for several reasons.
  Ironically, for a bill that purports to ``restore'' separation of 
powers, H.R. 4768 actually raises separation of power concerns.
  Congress makes the laws and agencies implement them, while the courts 
are supposed to interpret the law.
  The Supreme Court has long recognized that Congress may 
constitutionally delegate its authority to agencies through statutes to 
promulgate rules to implement the laws it passes, with democratic 
accountability stemming from the fact that Congress can always rescind 
or narrow the scope of that delegation.
  We specifically entrust these agencies, not the courts, with broad 
policymaking authority.
  Yet, by removing constraints on judicial review of agency action, 
H.R. 4768 would empower generalist and unelected courts to nullify 
agency action solely on policy grounds, substituting the administrative 
record with their own policy preferences.
  Such authority would go beyond the traditional bounds of the judicial 
role, as the federal courts themselves have thus far recognized through 
their deference to agencies.
  H.R. 4768 would upend the careful and longstanding balance among the 
three branches of government, all in the name of serving anti-
regulatory corporate interests.
  In addition, H.R. 4768 would encourage judicial activism.
  By eliminating judicial deference, the bill would effectively empower 
the courts to make public policy from the bench even though they may 
lack the specialized expertise and democratic accountability that 
agencies possess, through delegated authority from and oversight by the 
American people's elected representatives.
  Although the Supreme Court has had numerous opportunities to expand 
judicial review of rulemaking, thankfully the Court has rejected this 
approach in recognition of the fact that generalist courts simply lack 
the subject-matter expertise of agencies, are politically 
unaccountable, and should not engage in making substantive 
determinations from the bench.
  It is somewhat ironic that some who have long decried ``judicial 
activism'' would now support facilitating a greater role for the 
judiciary in agency rulemaking.
  Finally, H.R. 4768 would result in regulatory paralysis and thereby 
undermine public health and safety.
  Regulations are the result of years--very often many years--of 
careful deliberation and expert analysis. Typically, after an agency 
first proposes a rulemaking, it must solicit public comment. The agency 
then analyzes this input and, after further deliberation, promulgates a 
final rule. Additionally, for certain rules, agencies must undergo 
further procedures, such as conducting a cost-benefit analysis and a 
separate analysis of the rule's potential impact on small businesses. 
This is a time-consuming process that some believe is already too 
inflexible.
  According to a new report issued just last month by Pubic Citizen, 
the time it takes for agencies to issue regulations has grown to 
unprecedented lengths.
  So far this year, for example, economically significant regulations 
have taken an average of 3.8 years to complete, which is nearly an 
entire presidential term.
  In recognition of the fact that agencies spend years formulating 
rules and have the specialized substantive expertise to do so, the 
courts have long applied the rule of judicial deference.
  Essentially, this means that the court, in reviewing a rulemaking, 
will not substitute its policy preferences for that of the agency.
  Yet, H.R. 4768 would overturn this longstanding practice and, in its 
stead, require federal courts to review all agency rulemakings and 
interpretations of statutes on a de novo basis.
  In effect, the bill would empower a judge to ignore the 
determinations of agency experts and to substitute his or her judgment, 
without regard to the judge's technical knowledge or understanding of 
the underlying subject matter.
  By eliminating judicial deference, the bill will force agencies to 
adopt even more detailed factual records and explanations, which would 
further delay the finalization of what might be critical life-saving 
regulations.
  And, worst of all it will further encourage some well-funded 
corporate interests to engage in dilatory litigation challenging agency 
action in order to derail regulations.
  As it is, large corporate interests--devoted only to maximizing 
profits--already have an unfair advantage in their ability to weaken 
regulatory standards by burying an agency with paperwork demands and 
litigation.
  Rather than giving more opportunities for corporate interests to 
derail rulemakings, we should be evaluating ways to ensure that the 
voices of the general public have a greater role in the rulemaking 
process.
  We are talking about regulations that protect the quality of the air 
we breathe, the water we drink, and the food we consume.
  Slowing down the rulemaking process means that rules intended to 
protect the health and safety of American citizens will take longer to 
promulgate and become effective, thereby putting us all at possible 
risk.
  Given these concerns and others presented by the bill, I accordingly 
must oppose H.R. 4768 and I urge my colleagues to vote against this 
seriously flawed measure.
  Mr. GOODLATTE. Mr. Chairman, I yield 2 minutes to the gentleman from 
Georgia (Mr. Allen).
  Mr. ALLEN. Mr. Chairman, I rise today in support of the Separation of 
Powers Restoration Act, legislation that works to scale back the power 
of the administration's regulatory agencies and, instead, returns the 
interpretation of laws to the courts.
  For too long, unelected Federal bureaucrats have been running rampant 
on our Constitution, taking interpretations of the law further than 
Congress intended them.
  If you would have told me that 90 percent of my time here in Congress 
would be spent fighting Federal agencies' overreach, I would have 
thought you were joking, but that is the truth. It is sad.
  Our Founding Fathers never intended for faceless bureaucrats to have 
this power. The power of lawmaking is in this body.
  There are many examples out there as well, not only the coal 
industry. You know, West Virginia had the tenth best economy in this 
Nation just 10 years ago. Now it is the worst economy in the Nation.
  I have got lots of electric membership corporations in my district 
and, you know, they spent billions of dollars upgrading their coal-
powered plants, but they continue to be harassed by the EPA.
  It is time that this agency top-down approach is dealt with. It is 
not in the best interest of the folks in Georgia, in the 12th District 
of Georgia, let alone the rest of the country.
  It is time to get back to Congress writing the laws and the courts 
interpreting them, and to dismantle the growing fourth branch of this 
government. I am proud to support this legislation that gives Federal 
agencies a reality check.
  We wonder why the economy is not growing. Everywhere I go, people say 
that the biggest restriction on this economy is the regulatory 
overreach. We must stop this, and that is why I am proud to support the 
Separation of Powers Restoration Act.
  Mr. JOHNSON of Georgia. Mr. Chairman, America is facing so many 
important issues that need to be addressed that this Congress refuses 
to address, and so it tenders do-nothing bills like this that are going 
absolutely nowhere, not going to pass in the Senate, and if it did, it 
would not be signed by the President. But still this do-nothing 
Congress persists in acting in this way.

[[Page H4619]]

  Mr. Chairman, I yield 5 minutes to the gentlewoman from the great 
State of Texas (Ms. Jackson Lee).
  Ms. JACKSON LEE. Mr. Chairman, let me thank the gentleman from 
Georgia (Mr. Johnson) for his leadership of the subcommittee from which 
this legislation, I believe, has found its journey. Let me also 
acknowledge my colleague from Texas.
  On the Judiciary Committee, we have the benefit of the counsel of 
nonlawyers. It is a new phenomenon. When I first came on, we had only 
lawyers on the committee.
  But as a lawyer who remembers sitting in an administrative procedure 
law class by a seasoned senior professor at the University of Virginia 
Law School, I remember he was embedded for decades, and managed to make 
the Administrative Procedure Act interesting. And the one thing I knew, 
even as a younger law student, the APA, for 70 years--at that time it 
hadn't reached 70--had served and guided administrative agencies and 
the affected public in a manner that is flexible enough to accommodate 
the variety of agencies operating under it, inclusive of changes 
through time.
  So what saddens me as a person who enjoyed many aspects of law school 
and understands and enjoys the deliberation of issues dealing with the 
question of law is the complete skewing in spite of my friends who view 
this as remedy. And I would just like to offer them my thoughts as to 
why this is not: because the legislation would allow Federal courts 
reviewing an agency action to conduct a de novo review of all relevant 
questions of law without deferring to the legal interpretation of the 
agency.
  Now, let me be very clear. I am a student of the three branches of 
government. I appreciate my colleagues'--in this instance, 
Republicans'--concern about the sanctity of the three branches of 
government as evidenced by the Constitution. But in that structure, we 
developed agencies to have expertise; not to not be challenged, but to 
have expertise. And I want those listening to understand that I respect 
that expertise, but I respect the challenge.
  But what this particular legislation is doing is that de novo, my 
friends, of course, is starting from scratch. So that means a 
regulation by the Department of Homeland Security--I am on the Homeland 
Security Committee, this agency created after 9/11. And in the backdrop 
of what we have faced, the heinous acts of Dallas, 5 fallen officers, 
12 persons shot--now, we can't claim this recent incident. Allow me to 
offer my sympathy to those in Michigan, two bailiffs, and I don't know 
how many others may be shot and killed.
  But we know that we are in a different framework of dealing with 
security in this country. Some of these are a regulatory scheme through 
the Homeland Security Department, Transportation Security 
Administration. And to take that expertise on behalf of the American 
people and, as they say, throw the baby out with the bathwater, say to 
the courts that do not have a discernible expertise--our judges are 
quite skilled, but they are not the experts in every aspect of how this 
government runs.
  Members of Congress have to brief themselves to be able to assess 
what is going on in the government, and we have that responsibility. 
But you are asking the courts now to undo every regulation and become 
the expert on Federal lands, public lands, on Environmental Protection 
Agency issues, on Health and Human Services issues, on issues dealing 
with homeland security, on issues dealing with education.
  This is untenable, Mr. Chairman. This will not work. And I just want 
to cite to you from a number of groups that have come together. The 
Coalition for Sensible Safeguards says: ``Congress should be looking 
for ways to strengthen our country's regulatory system by identifying 
gaps and instituting new safeguards for the public. Unfortunately, this 
legislation does the opposite by ensuring more delays.''
  Let me clarify their language, because I will go a little further. I 
would be willing to look at filling the holes.
  The CHAIR. The time of the gentlewoman has expired.
  Mr. JOHNSON of Georgia. Mr. Chairman, I yield an additional 2 minutes 
to the gentlewoman from Texas.
  Ms. JACKSON LEE. I would be willing to look at discussing this 
further by looking at what are the holes, where do we think we are not 
being effective on behalf of the American people. That is reasonable 
legislation and legislative discourse, if you will.
  But I can't look at something that tells me that I have got to take 
something involving the Children's Health Insurance Program or the 1191 
waiver that deals with Medicaid, and I have got to untangle it, go into 
a court because someone challenged it, and I have got people waiting in 
line for healthcare relief and hospitals that are looking for payment 
on uncompensated care, and I have got a court that has to now ramp up. 
And individual courts don't have the vastness of research that agencies 
have to be experts on health care and to be experts on a variety of 
issues that are so very important to us.

  I would hope that we can send this legislation back. I hope that we 
could look--what are we trying to fix?
  I think the three branches of government are very clear. We 
legislate, the executive has its powers, and there are agencies. But 
the citizens have a right to seek a review of a regulatory structure or 
a regulation. They have judicial review.
  Section 702 of the APA, in its current form, subjects agency 
rulemaking to judicial review for any person suffering legal wrong 
because of agency action, or adversely affected or aggrieved by agency 
action within the meaning of a relevant statute. Courts in particular 
retain an important role in determining whether an agency is 
permissible, arbitrary, or capricious.
  Mr. Chairman, that is within the context of what this Administrative 
Procedure Act does. It has been effective for 70 years plus. And what 
we are doing is--we are not detangling. We are tangling, and we are 
blocking the good government work that these agencies do to help the 
American people be safe in water, in the environment, in public lands, 
in security.
  I ask my colleagues, let's go back to the drawing board before we 
move forward on this legislation.
  Mr. Chair, I stand in opposition to H.R. 4768, the Separation of 
Powers Restoration Act of 2016, a bill to address purported 
constitutional and statutory deficiencies in the judicial review of 
agency rulemaking.
  I am opposed to H.R. 4768 because this bill is unfortunately deeply 
flawed and harmful to our nation's fundamental and well-established 
federal rulemaking process.
  Specifically, H.R. 4768 would abruptly shift the scope and authority 
of judicial review of agency actions away from federal agencies by 
amending Section 706 of the Administrative Procedures Act (APA) to 
``require that courts decide all relevant questions of law, including 
all questions of interpretation of constitutional, statutory, and 
regulatory provisions, on a de novo basis without deference to the 
agency that promulgated the final rule''.
  Effectively, H.R. 4768 would abolish judicial deference to agencies' 
statutory interpretations in federal rulemaking and create harmful and 
costly burdens to the administrative process.
  Enacted in 1946, the APA establishes the minimum rulemaking and 
formal adjudication requirements for all administrative agencies.
  And for the past 70 years the APA has served and guided 
administrative agencies and the affected public in a manner that is 
flexible enough to accommodate the variety of agencies operating under 
it inclusive of changes through time.
  In addition to the APA, numerous other procedural and analytical 
requirements have been imposed on the rulemaking process by Congress 
and various presidents.
  Generally, agencies' development of new rules is an extensive process 
that is fully vetted with appropriate avenues for judicial relief where 
necessary.
  Namely, Section 702 of the APA in its current form subjects agency 
rulemaking to judicial review for ``any person suffering legal wrong 
because of agency action, or adversely affected or aggrieved by agency 
action within the meaning of a relevant statute.''
  Courts in particular retain an important role in determining whether 
an agency action is permissible, arbitrary, or capricious.
  And while, the APA requires reviewing courts to decide all relevant 
questions of law, interpret statutes, and determine the meaning of 
agency action, it is well-established that courts ``must give 
substantial deference to an agency's interpretation of its own 
regulations.''
  Indeed, the Supreme Court has routinely observed that the scope of 
judicial review is narrow and a court is not to substitute its judgment 
for that of the agency.
  Rather, it is well-settled that courts must give considerable weight 
to an agency's construction of a statute it administers.

[[Page H4620]]

  Such deference was established as bedrock administrative law in the 
1984 Supreme Court case Chevron v. Natural Resources Defense Council, 
now known as the Chevron deference.
  Chevron deference has been upheld by hundreds of federal courts since 
and has been endorsed by both conservative and liberal Supreme Court 
justices and federal court judges.
  H.R. 4768 would override the Chevron doctrine enabling courts to 
ignore administrative records and expertise and to substitute their own 
inexpert views and limited information.
  Such a measure would radically transform the judicial review practice 
and make the rulemaking process more costly and time-consuming by 
forcing agencies to adopt more detailed factual records and 
explanations, effectively imposing more procedural requirements on 
agency rulemaking.
  This cumulative burden would have the effect of further ossifying the 
rulemaking process or dissuading agencies from undertaking rulemakings 
altogether.
  H.R. 4768 marks an unprecedented and dangerous move away from 
traditional judicial deference towards a system of that would enhance 
powers for corporate lobbyists and weaken protections for consumers and 
working families.
  Congressional consideration for an enhanced judicial review standard 
or a legislative override of judicial deference is not one we are 
unfamiliar with--but it is a matter we have long ago rejected along 
with our nation's leading administrative law scholars and experts.
  H.R. 4768 is an unnecessary and misguided bill that would burden the 
rulemaking process and not simplify it.
  For these reasons, I am opposed to H.R. 4768.
  Mr. GOODLATTE. Mr. Chairman, I believe that this side has the right 
to close, and I have one speaker remaining, so we are prepared to close 
whenever the gentleman from Georgia is ready.
  I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Chairman, I yield to the gentlewoman from 
Texas (Ms. Jackson Lee).
  Ms. JACKSON LEE. Mr. Chairman, I include in the Record the Statement 
of Administration Policy, the President's veto threat on this bill, and 
also a letter from the Coalition for Sensible Safeguards.

                   Statement of Administration Policy


    H.R. 4768--Separation of Powers Restoration Act of 2016--(Rep. 
                  Ratcliffe, R-TX, and 113 cosponsors)

       The Administration strongly opposes House passage of H.R. 
     4768, the Separation of Powers Restoration Act of 2016, 
     because it would unnecessarily overrule decades of Supreme 
     Court precedent, it is not in the public interest, and it 
     would add needless complexity and delay to judicial review of 
     regulatory actions. This legislation would allow Federal 
     courts reviewing an agency action to conduct de novo review 
     of all relevant questions of law without deferring to the 
     legal interpretation of the agency. Both Federal statutes and 
     case law provide Federal courts with the appropriate tools to 
     review regulatory actions and afford appropriate deference to 
     the expertise of the agencies that promulgated the rules and 
     regulations under review.
       If the President were presented with H.R. 4768, his senior 
     advisors would recommend he veto the bill.
                                  ____

     Re: Mark-up on Separation of Powers Restoration Act (H.R. 
         4768)

     Hon. Robert Goodlatte,
     Chairman, Judiciary Committee,
     Washington, DC.
     Hon. John Conyers,
     Ranking Member, Judiciary Committee, Washington, DC.
       Dear Representatives: The Coalition for Sensible Safeguards 
     (CSS), which includes more than 150 diverse labor, consumer, 
     public health, food safety, financial reform, faith, 
     environmental and scientific integrity groups representing 
     millions of Americans, urges members of this committee to 
     oppose the Separation of Powers Restoration Act (H.R. 4768).
       Congress should be looking for ways to strengthen our 
     country's regulatory system by identifying gaps and 
     instituting new safeguards for the public. Unfortunately, 
     this legislation does the opposite by ensuring even more 
     delays in new public health, safety, and financial security 
     protections for the public.
       The legislation will make our system of regulatory 
     safeguards weaker by allowing for judicial activism at the 
     expense of agency expertise and congressional authority, 
     thereby resulting in unpredictable outcomes and regulatory 
     uncertainty for all stakeholders. If passed, this legislation 
     would rob the American people of many critical upgrades to 
     public protections, especially those that ensure clean air 
     and water, safe food and consumer products, safe workplaces, 
     and a stable, prosperous economy.
       This radical legislation would reverse a fundamental and 
     well-settled legal principle that has long successfully 
     guided our regulatory system. It would abolish judicial 
     deference to agencies' statutory interpretations in 
     rulemaking by requiring a court to decide all relevant 
     questions of law de novo, including all questions concerning 
     the interpretation of constitutional, statutory, and 
     regulatory provisions of final agency actions. Such deference 
     was established as bedrock administrative law by the Supreme 
     Court in the 1984 case Chevron v. Natural Resources Defense 
     Council and came to be referred to as Chevron deference. 
     Chevron deference has been upheld by hundreds of federal 
     courts since and has been endorsed by both conservative and 
     liberal Supreme Court justices and federal court judges.
       In practice, abolishing Chevron deference will make the 
     current problems in our country's broken regulatory process 
     much worse in several ways. H.R. 4768 will lead to even more 
     regulatory delays, particularly for those ``economically 
     significant'' or ``major'' new rules that provide the 
     greatest benefits to the public's health, safety, and 
     financial security. The examples of regulatory paralysis are 
     ubiquitous and impossible to ignore.
       In the energy sector, offshore drilling safety measures to 
     address the cause of the BP oil spill in the Gulf, new safety 
     standards to prevent oil train derailments and explosions, 
     and new energy efficiency standards to benefit consumers all 
     took far too long to finalize and benefit the public.
       In the food safety sector, implementation of the Food 
     Safety Modernization Act was finally completed last week, 
     despite agencies missing every statutory deadline and 
     numerous tainted food scandals in the interim.
       In the banking sector, a significant portion of the Dodd-
     Frank Wall Street Reform Act has yet to be finalized, or in 
     some cases, even proposed, despite the law's enactment almost 
     six years ago.
       The delays in new protections for the public are systemic, 
     touching virtually every agency and regulatory sector. A 
     recent study by a conservative think tank found that federal 
     agencies have only been able to meet half of the rulemaking 
     deadlines Congress has set out for them over the last twenty 
     years.
       There is substantial academic literature and expert 
     consensus that intrusive judicial scrutiny of agency 
     rulemaking is one of the main drivers of regulatory 
     paralysis. Thus, increasing litigation risk for agency rules, 
     which is exactly what this bill would accomplish by spawning 
     hundreds of new lawsuits per year, will mean many more missed 
     congressional deadlines and a regulatory process this is 
     unable to act efficiently and effectively in protecting the 
     public as Congress requires. This further ``chilling'' of 
     rulemaking will certainly benefit Big Business lobbyists and 
     lawyers who will further pressure regulators to carve out 
     loopholes, weaken safety standards, or otherwise obstruct new 
     rulemakings with the greatly enhanced threat of a lawsuit 
     waiting in the wings.
       Additionally, eliminating judicial deference to agency 
     rulemaking would be tantamount to ringing the dinner bell for 
     judicial activism by empowering reviewing courts to 
     substitute their policy preferences for those of the agency. 
     One of the primary policy rationales for Chevron deference is 
     that agencies have considerable and superior expertise in the 
     regulatory sectors they oversee as compared to generalist 
     judges. Thus, H.R. 4768 would make it easier for the courts 
     to overturn an agency's highly technical, resource-intensive, 
     and science-based rulemakings without the expertise needed to 
     make such determinations.
       Further, judicial activism would impact Congressional 
     authority, curtailing it rather than enhancing it, an irony 
     given the name of the bill. The de novo review of the scope 
     and nature of Congressional grants of authority to agencies 
     will invite courts to create law, ignore congressional 
     intent, or both. Again, the bill will allow judges to simply 
     replace congressional intent with the judges' own 
     construction of the statute or policy preferences with 
     respect to congressional objectives.
       Perhaps the most telling critique of attempts to replace 
     Chevron deference with de novo review comes from former 
     Justice Antonin Scalia, an aggressively vocal supporter of 
     Chevron deference during his career and an indication of just 
     how broad and mainstream the support is for maintaining such 
     deference. Writing for the majority in City of Arlington v. 
     F.C.C., Justice Scalia argued that requiring that ``every 
     agency rule must be subjected to a de novo judicial 
     determination'' without any standards to guide this review 
     would result in an ``open-ended hunt for congressional 
     intent,'' rendering ``the binding effect of agency rules 
     unpredictable and destroy the whole stabilizing purpose of 
     Chevron. The excessive agency power that the dissent fears 
     would be replaced by chaos.''
       H.R. 4768 marks an unprecedented and dangerous move away 
     from traditional judicial deference towards a system of 
     enhanced powers for Big Business lobbyists and weakened 
     protections for consumers and working families. CSS urges 
     members of the committee to reject the Separation of Powers 
     Restoration Act, (H.R. 4768).
           Sincerely,

                                              Robert Weissman,

                                 President, Public Citizen, Chair,
                                Coalition for Sensible Safeguards.

                              {time}  1815

  Mr. JOHNSON of Georgia. Mr. Chairman, I yield 3 minutes to the 
gentleman from Michigan (Mr. Conyers).
  Mr. CONYERS. Mr. Chairman, I thank my friend from Georgia.

[[Page H4621]]

  Members of the House, I am not alone in opposing H.R. 4768. In 
recognition of the many serious concerns presented by it, the Coalition 
for Sensible Safeguards, an alliance of more than 150--150--consumer, 
labor, research, faith, and other public interest groups, strongly 
opposes this legislation. These are, in effect, the good guys: Public 
Citizen, the AFL-CIO, the Service Employees International Union, the 
United Steelworkers, the Center for Progressive Reform, the Consumers 
Union, the Consumer Federation of America, the Natural Resources 
Defense Council, the Sierra Club, and many, many more.
  In addition, leading administrative law scholars also oppose H.R. 
4768 because it will further delay the rulemaking process and because 
it presents separation of powers concerns.
  Like me, these organizations and scholars know that this bill will 
weaken the regulatory system by supplanting agency expertise and 
congressional authority with judicial activism.
  In closing, I urge my colleagues to join me in opposing H.R. 4768, a 
bill that, without a doubt, would undermine public health and safety 
and undermine our regulatory safety net.
  Mr. Chairman, I thank Mr. Johnson for the great job he has done here 
on the floor and ask him to close this debate.
  Mr. JOHNSON of Georgia. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, in sum, it is indeed ironic that the so-called 
Separation of Powers Restoration Act actually raises separation of 
powers concerns by yielding legislative power over to the judicial 
branch. This is, in part, why there are so many alliances of labor 
organizations, consumer organizations, environmental action 
organizations, and others that strongly oppose this legislation.
  I include in the Record a July 11, 2016, letter from Consumers Union 
opposing this legislation, along with a letter from the Natural 
Resources Defense Council opposing this legislation.

                                               ConsumersUnion,

                                                    July 11, 2016.
       Dear Representative: ConsumersUnion, the policy and 
     advocacy division of Consumer Reports, urges you to oppose 
     H.R. 4768 when it comes to the floor. Although titled the 
     ``Separation of Powers Restoration Act,'' we are concerned 
     that the bill would have the opposite effect, upending the 
     well-developed constitutional balance between the 
     legislative, executive, and judicial branches. The bill could 
     severely impair effective and well-considered regulatory 
     agency enforcement of critical safety, health, environmental, 
     and market protections on which consumers depend.
       Courts giving appropriate deference to reasonable agency 
     interpretations of their statutes, as reflected in Chevron 
     U.S.A., Inc., v. NRDC, 467 U.S. 837 (1984), is a well-settled 
     approach to promote both sound and efficient agency 
     enforcement and effective judicial review. This approach has 
     legal roots going back decades, even to the earliest days of 
     our nation.
       The courts have full judicial power to review agency legal 
     interpretations. The Chevron doctrine embodies a judicial 
     recognition, based on experience, that courts do not need to 
     exercise this judicial power de novo on each and every 
     question of law that comes before them. The courts are in no 
     way precluded from doing so when that is warranted. The 
     agency must give a reasoned explanation for its judgment, but 
     Chevron says the court should not simply substitute its 
     judgment for the agency's.
       The Chevron doctrine recognizes that, as a general matter, 
     an agency that deals with a statute day in and day out, year 
     in and year out--applying the dedicated efforts and sustained 
     attention of agency personnel with specialized subject matter 
     expertise in all relevant disciplines, and with input from 
     stakeholders and members of the public, received and 
     considered in open rulemakings--develops valuable insight 
     into the law it is entrusted with administering. Chevron 
     recognizes that this insight generally warrants the respect 
     and deference of the reviewing courts of general 
     jurisdiction, which have no such resources, dedicated 
     personnel, specialized expertise, or sustained attention over 
     time.
       Again, in situations where the court has sufficient basis 
     to conclude that deference is not warranted, it has full 
     authority to not defer. Likewise, if Congress determines that 
     the agency has acted in a manner inconsistent with 
     congressional intent--or if Congress decides to clarify or 
     even change its intent in light of some agency action--
     Congress can amend the statute and provide a clearer 
     directive. But Congress cannot realistically be expected to 
     clearly address in advance every conceivable contingency that 
     may arise in the administration and enforcement of the 
     statutes it enacts. The agencies that are specifically tasked 
     with administering and enforcing those statutes are in the 
     best position to ensure that the law functions effectively. 
     Indeed, that has traditionally been regarded as their 
     foremost responsibility--to help the President take care that 
     the laws be faithfully executed.
       In City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1874 
     (2013), the Supreme Court starkly described the alternative 
     to Chevron: ``Thirteen Courts of Appeals applying a totality-
     of-the-circumstances test would render the binding effect of 
     agency rules unpredictable and destroy the whole stabilizing 
     purpose of Chevron. The excessive agency power that the 
     dissent fears would be replaced by chaos.''
       In addition to injecting this unpredictability into every 
     agency decision, and increasing the complexity of every 
     rulemaking, the change proposed by this legislation would add 
     needless new burdens to our already overworked courts, 
     impeding their important work as well.
       In sum, this legislation is unnecessary, could do severe 
     damage to the proper functioning of our government, and could 
     severely weaken a wide range of fundamental protections on 
     which consumers rely.
       For these reasons, we urge you to oppose this bill.
           Respectfully,

                                             George P. Slover,

                                            Senior Policy Counsel,
     ConsumersUnion.
                                  ____

                                                             NRDC.
       Dear Representative: H.R. 4768, the so-called ``Separation 
     of Powers Restoration Act of 2016,'' is a deeply flawed and 
     harmful bill that should not become law. The more appropriate 
     title should be instead ``The More Judicial Activism Act.'' 
     The legislation overthrows a longstanding and well-founded 
     framework for legislation and judicial review--and 
     establishes a framework that would give huge new power to 
     unelected judges to nullify policies of the Executive Branch 
     and the Congress alike.
       For decades, Congress has written our laws, and the 
     President has executed them, on a very straightforward 
     platform: When Congress writes a statute in unmistakable 
     terms, reflecting a clear policy intent, executive branch 
     agencies are bound to follow those terms and that intent 
     exactly. When Congress legislates in flexible or ambiguous 
     terms, it does so knowing that it has not addressed every 
     contingency, and it is delegating some measure of decision 
     making to executive agencies. At any time, Congress can 
     always have the last word; whenever Congress agrees that an 
     agency erred, it can adopt new legislation to set things back 
     on course. This common-sense framework allows the political 
     branches to fashion fair and effective laws that keep 
     functioning in a changing world where no Congress can address 
     every contingency in advance or make every detailed decision 
     that has to be made in real time.
       This framework is sometimes called the Chevron doctrine 
     after the famous 1984 Supreme Court case at which H.R. 4768 
     takes aim. But the framework actually goes back many decades 
     farther--indeed to the foundations of our republic. The 
     Supreme Court and lower federal courts have long understood 
     that while they must hold government action to the law, it 
     isn't the job of unelected judges to substitute their policy 
     judgments for those of the political branches--whether 
     Congress or the President.
       H.R. 4768 would throw our country's sacred tradition of 
     judicial restraint to the winds. It would permit unelected 
     judges to substitute their own policy preferences, and to 
     overrule scientists, economists, engineers and other experts 
     based on their own inexpert and limited views and 
     information.
       Empowering judges to make their decisions ``de novo,'' 
     without regard to experts and without regard to the leaders 
     of either political branch, is the very definition of 
     judicial activism. This should be anathema to conservatives 
     and liberals alike.
       Justice Scalia has spoken eloquently on the consequences of 
     ignoring Chevron. In the case City of Arlington, Tex. v. FCC, 
     he described a world where all the courts of appeals 
     undertake de novo reviews of agency interpretations of 
     statutes in a judicial search for congressional intent or 
     what judges consider more ``reasonable.'' Ruling for the 
     majority Justice Scalia wrote:
       ``Rather, the dissent proposes that even when general 
     rulemaking authority is clear, every agency rule must be 
     subjected to a de novo judicial determination of whether the 
     particular issue was committed to agency discretion. It 
     offers no standards at all to guide this open-ended hunt for 
     congressional intent (that is to say, for evidence of 
     congressional intent more specific than the conferral of 
     general rulemaking authority). It would simply punt that 
     question back to the Court of Appeals, presumably for 
     application of some sort of totality-of-the-circumstances 
     test--which is really, of course, not a test at all but an 
     invitation to make an ad hoc judgment regarding congressional 
     intent. Thirteen Courts of Appeals applying a totality-of-
     the-circumstances test would render the binding effect of 
     agency rules unpredictable and destroy the whole stabilizing 
     purpose of Chevron. The excessive agency power that the 
     dissent fears would be replaced by chaos.''
       City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1874 
     (2013) (emphases in original).
       The bill envisions allowing a single federal district 
     judge, or a panel of three appellate judges, to simply set 
     aside the product of years of federal rulemaking following 
     rounds of public notices, proposals, stakeholder engagement, 
     public hearings and public comments, and final decisions 
     based on detailed

[[Page H4622]]

     records and explanations, all conducted by agency officials 
     with subject matter expertise that courts lack in the 
     sciences, medicine, engineering, statistics, accounting, 
     economics and financial markets, and the full gamut of 
     professional disciplines.
       Because the policy preferences of individual judges will 
     matter more than ever, litigants will spend even more time 
     and effort forum shopping for their favorite judges. On top 
     of these ills, de novo judicial review of vast administrative 
     records would further slow the wheels of the American legal 
     system, to the detriment of every business or individual 
     trying to get justice from our crowded and overworked courts.
       What is most surprising is to see support for this bill 
     from traditional opponents of judicial activism. Some 
     supporters appear to favor the bill because they hope to undo 
     burdens on businesses. In doing so, they are willing to 
     sacrifice food safety; clean air and water; worker 
     protections; safeguards against discrimination; and even the 
     stability and security of our banks and financial 
     institutions.
       It should be noted, however, that the bill would also allow 
     unelected judges to overrule the decisions of future 
     conservative administrations. It is worth remembering that 
     NRDC was the losing party in the Chevron decision. If this 
     bill had then been law, the Reagan administration's effort to 
     streamline pollution controls for new factories would likely 
     have been overturned, not upheld as it was by the Supreme 
     Court.
       Our Constitution puts elected officials in charge to give 
     political accountability. Turning over the authority to 
     unelected and non-expert judges should not be an option. We 
     urge all members to oppose H.R. 4768.

  Mr. JOHNSON of Georgia. Lastly, I would point out that there is a 
strongly worded veto threat by the President about this legislation 
should it ever find its way to the Senate and to the President's desk. 
The President points out that this legislation is not in the public 
interest and that it would add needless complexity and delay to the 
judicial review of regulatory actions. For those reasons, among other 
things, he has issued a veto threat.
  So this is a piece of legislation that is a messaging piece. My 
friends on the other side of the aisle know that it is not going 
anywhere, but it is promoting their message, which is deregulation. 
Despite all of the regulation and legislation needed to address 
pertinent issues that the American people are demanding action on right 
now--the Zika virus, Puerto Rico, gun violence, and gun reform 
legislation--there are so many other things that we could and should be 
working on, but instead we are enthralled here with these messaging 
bills that are not going anywhere.
  Mr. Chairman, I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may 
consume.
  The list of organizations that stand up for separation of powers, 
that stand up for liberty, and that stand up for common sense is long.
  It includes the American Farm Bureau Federation, TechFreedom, the 
American Consumer Institute, Americans for Tax Reform, the Center for 
Freedom and Prosperity, Competitive Enterprise Institute, Digital 
Liberty, Free the People, the Independent Women's Forum, Institute for 
Liberty, the Mississippi Center for Public Policy, the National 
Taxpayers Union, Protect Internet Freedom, the Taxpayers Protection 
Alliance, and Tech Knowledge, just to name some.
  Mr. Chairman, this legislation is very important. It will pass this 
House with a strong vote. It needs to be taken up by the United States 
Senate. It needs to be signed into law by the President of the United 
States, but it will also be heard across the street at the United 
States Supreme Court, where I know there are Justices who know that the 
Chevron doctrine needs to be reconsidered because it is an abandonment 
of the responsibility and the power of the judicial branch of our 
government to cede this kind of power and this kind of authority to the 
bureaucracy. It is wrong; it needs to be overturned; and I urge my 
colleagues to vote to do so tonight.
  Mr. Chairman, I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Chairman, I move that the Committee do now rise.
  The motion was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Ratcliffe) having assumed the chair, Mr. Rigell, Chair of the Committee 
of the Whole House on the state of the Union, reported that that 
Committee, having had under consideration the bill (H.R. 4768) to amend 
title 5, United States Code, with respect to the judicial review of 
agency interpretations of statutory and regulatory provisions, had come 
to no resolution thereon.

                          ____________________