Separation of Powers Restoration Act of 2016

Floor Speech

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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, 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.

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