Separation of Powers Restoration Act of 2016
Floor Speech
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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.
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Mr. JOHNSON of Georgia. Mr. Chair, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers).
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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.
Mr. Chairman, I yield 5 minutes to the gentlewoman from the great State of Texas (Ms. Jackson Lee).
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Mr. JOHNSON of Georgia. Mr. Chairman, I yield an additional 2 minutes to the gentlewoman from Texas.
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Mr. JOHNSON of Georgia. Mr. Chairman, I yield to the gentlewoman from Texas (Ms. Jackson Lee).
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Mr. JOHNSON of Georgia. Mr. Chairman, I yield 3 minutes to the gentleman from Michigan (Mr. Conyers).
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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 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.
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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.
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