Separation of Powers Restoration Act of 2016
Floor Speech
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Mr. JOHNSON of Georgia. Mr. Chairman, as the designee of the gentleman from Michigan (Mr. Conyers), I offer an amendment.
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Mr. JOHNSON of Georgia. Mr. Chair, the Conyers amendment would exempt from H.R. 4768, the Separation of Powers Restoration Act of 2016, regulations promulgated by the Environmental Protection Agency that protect drinking water from lead and copper contamination.
The Conyers amendment does not address a hypothetical concern. The recent lead-contaminated water crisis that occurred in Flint, Michigan, is only the latest in a history of cases of contaminated drinking water.
Without question, the Flint crisis was a preventable public health disaster. The lead contamination occurred because an unelected and unaccountable emergency manager decided to switch the city's water source to the Flint River without there being the benefit of proper corrosion control. As a result, corrosive water leached highly toxic lead from residents' water pipes, exposing thousands of children to lead, which, in turn, can cause permanent developmental damage.
While much of the blame for the Flint water crisis rests with unelected bureaucrats who prioritized saving money over saving lives, the presence of lead in drinking water is not unique to Flint. The drinking water of potentially millions of Americans may be contaminated by lead. In fact, just last month, elevated lead levels were detected in the drinking water supplied to the Cannon House Office Building right here on Capitol Hill.
It is a commonsense amendment, and it is common sense that urgent rulemakings, such as the EPA's proposed revisions to its Lead and Copper Rule, must not be impeded or delayed by measures such as H.R. 4768. Even before the Flint water crisis, the Agency had begun the process of updating this Rule, which was originally promulgated in 1991 after years of analysis.
Rather than hastening this rulemaking, however, H.R. 4768 would have the opposite effect. The bill would empower well-funded business interests to seek the judicial review of any regulation they opposed by a generalist, politically unaccountable court that lacks the requisite scientific or technical knowledge. The court could then make its own, independent determination based on its nonexpert views and limited information as to whether the Agency's proposed regulation is warranted.
The Conyers amendment simply preserves longstanding legal doctrine in cases involving the review of regulations that are designed to prevent the contamination of drinking water by lead and copper.
It is critical that Americans have access to safe drinking water, and we must not hinder the ability of Federal agencies, such as the EPA, to prevent future lead contamination crises, as occurred in Flint. Federal judges, who are constitutionally insulated from political accountability, should not have the power to second-guess the Agency's experts concerning the appropriateness of highly technical regulations that are crucial to protecting the health and safety of millions of Americans.
Accordingly, I urge my colleagues to support the Conyers amendment.
Mr. Chair, I yield back the balance of my time.
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Mr. JOHNSON of Georgia. Mr. Chair, I demand a recorded vote.
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Mr. JOHNSON of Georgia. Mr. Chair, I rise as the designee of the gentlewoman from Texas (Ms. Jackson Lee), who has an amendment at the desk.
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Mr. JOHNSON of Georgia. Mr. Chair, I yield to the gentlewoman from Texas (Ms. Jackson Lee).
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Mr. JOHNSON of Georgia. Mr. Chair, I yield the balance of my time to the gentlewoman from Texas (Ms. Jackson Lee).
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Mr. JOHNSON of Georgia. Mr. Chair, I yield back the balance of my time.
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Mr. JOHNSON of Georgia. Mr. Chair, I demand a recorded vote.
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Mr. JOHNSON of Georgia. Mr. Chairman, I rise in support of my amendment, which exempts from the bill rules issued by agencies pursuant to their express statutory authority.
H.R. 4768 is a misguided and dangerous bill that simply does not understand courts must always give effect to clearly expressed congressional intent under current law.
H.R. 4768 would dismantle decades of judicial practice and establish generalist courts as super-regulators with sweeping authority over the outcome, and perhaps even substance, of agency rulemaking even where Congress expressly grants authority for agency action.
At the subcommittee hearing on the bill, the majority's own witness, Professor Jack Beermann, testified that the bill ``may go too far'' by disabling ``reviewing courts from taking into account the views of an administering agency on questions of statutory interpretation.''
Professor Beermann expressed additional concerns that H.R. 4768 may frustrate Congress' intent for highly technical areas in which Congress expects an agency to apply its expertise.
Furthermore, as Professor Beermann testified, in areas where Congress expressly grants authority for an agency to undertake an action, such as defining a term, H.R. 4768 would represent a ``fundamental shift in authority'' while making it difficult for Congress to allow deference where appropriate.
The late-Justice Scalia held a similar view on judicial deference. Writing for the majority in the City of Arlington, Texas v. FCC, Justice Scalia argued that requiring a de novo review of every agency rule 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 eviscerating ``the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos.''
In recognition of these concerns, my amendment would exempt from the bill agency rules promulgated in response to a clear and unequivocal mandate from Congress. Without my amendment and notwithstanding the endearing title of the bill, H.R. 4768 would create countervailing separation of powers concerns by casting aside Congress' role in shaping agency rules in favor of judicial activism.
As a group of our Nation's leading administrative law experts have observed, H.R. 4768 is disruptive to the careful equilibrium that the full body of administrative law doctrine seeks to achieve. Administrative law is not perfect, but this bill tilts too strongly in favor of judicial power at the expense of the other two branches. In other words, the likely outcome of enacting this unwise proposal would be more power in the hands of a single branch of government that is unelected and unaccountable to the people.
This policy concern is the very foundation of the Chevron doctrine. As the Court noted in Chevron, judges ``are not experts in the field, and are not part of either political branch of the Government.''
H.R. 4768 is not a new idea, but it is a bad idea. Congress considered and rejected a proposal such as this over three decades ago. It wasn't a good idea then, and it is a worse idea now.
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Mr. JOHNSON of Georgia. Mr. Chairman, I yield back the balance of my time.
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Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.
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Mr. JOHNSON of Georgia. 2 be withdrawn to the end that the amendment stand disposed of by voice vote. That was the amendment that was originally styled the Jackson Lee amendment No. 2, which I was asked to present by designation.
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Mr. JOHNSON of Georgia. Mr. Chairman, this amendment would exempt from the bill any rule issued by the Food and Drug Administration that pertains to consumer safety. This amendment is necessary to safeguard the public health and safety of American consumers from the bill's burdensome regulatory framework, which would significantly delay or prevent critical rules that protect public health and safety from being issued by the FDA.
Just recently, the FDA finally implemented the bipartisan FDA Food Safety Modernization Act, which was passed by Congress and signed into law by President Obama in 2011, representing the most substantial reform to food safety in over 70 years.
According to the Centers for Disease Control, one in six Americans gets sick every year from foodborne diseases. That is 48 million people yearly. Of these 48 million people, 3,000 every year die from diseases that are largely preventable. Under authority and clear regulatory framework achieved by the Food Safety Modernization Act, the FDA's finalized rules will prevent foodborne illnesses and outbreaks associated with contaminated produce among other important protections.
In its letter opposing H.R. 4768, the Coalition for Sensible Safeguards, which represents more than 150 labor, food, and health safety and environmental public interest groups, notes that H.R. 4768 will lead to ``regulatory paralysis,'' particularly for rules related to the food safety sector.
Without this amendment, rules protecting the public's food supply at best would be delayed for months or even years, causing substantial confusion and delay in all agency rulemaking. At worst, the bill gives generalist courts unbridled discretion to make substantive determinations concerning agencies' statutory authority. I ask my colleagues to support this amendment.
Mr. Chairman,
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Mr. JOHNSON of Georgia. Mr. Chairman, I include in the Record a July 11 letter from the Union of Concerned Scientists and also a July 5 letter from the AFL-CIO, both opposing H.R. 4768, the so-called Separation of Powers Restoration Act of 2016. Union of Concerned Scientists, July 11, 2016.
Dear Representative: The Center for Science and Democracy at the Union of Concerned Scientists, representing more than 500,000 members and supporters across the country, strongly opposes H.R. 4768, the deceptively named ``Separation of Powers Restoration Act.''
This misguided legislation would abolish agency deference, a well-established framework under Chevron U.S.A., Inc. v. Natural Resources Defense Council, which allows federal agencies that have the scientific and technical expertise, to interpret and administer laws passed by Congress.
Instead, H.R. 4768 would undermine the scientific expertise at federal agencies. Courts should be deferring to technical experts at agencies to help actualize our landmark public health, safety, and environmental laws, all of which are grounded in the use of science. If agency deference is abandoned, then the use of scientific analysis and evidence in policymaking would be severely restricted.
Furthermore, by placing important science-based public health, safety, and environmental policy decisions in the hands of judges who lack specialized knowledge of the technical aspects of the issues agencies must deal with, there may in fact be an increase in regulatory uncertainty for all stakeholders.
What H.R. 4768 really seeks to do is subvert well- established legal norms that govern the development and implementation of science-based safeguards that are vital to protecting the health and safety of Americans, especially communities of color and low income communities, who often face the biggest public health, safety, and environmental threats. Vulnerable communities and populations stand to lose the most when the process to enact these safeguards is crippled, exacerbating long standing inequity.
Congress writes the laws to ensure access to clean air and water, safe consumer products, and untainted food and drugs. Federal agencies fulfill those mandates and have the necessary scientific expertise to do so. If Congress believes that an agency is misinterpreting the intent of a statute, it has the power to enact new legislation to establish clear and precise criteria and boundaries for the executive to carry out. This is the common-sense approach.
We urge Congress to improve the use of science in our federal policymaking, and work to strengthen science-based safeguards, not undermine them.
This harmful legislation would give judges the ability to override scientific expertise and the administrative record and instead substitute their own inexpert views with limited information. We strongly urge a no vote on H.R. 4768. It is just another recipe for stymieing science-based safeguards and does not deserve your support. Sincerely, Andrew A. Rosenberg, Ph.D.,
Director, Center for Science and Democracy, Union of Concerned Scientists. ____ July 5, 2016. Re Opposition to H.R. 4768, the so-called ``Separation of Powers Restoration Act of 2016''
Dear Representative: On behalf of our millions of members, activists, and supporters nationwide we, the undersigned organizations, urge you to oppose H.R. 4768, the so-called ``Separation of Powers Restoration Act of 2016''. The bill is flawed and harmful and should not become law. Deference to reasonable agency interpretations of statutes pursuant to Chevron U.S.A., Inc., v. NRDC, 467 U.S. 837 (1984), is a longstanding and well-understood framework for judicial review that acknowledges the appropriate powers of the three constitutional branches in enacting, administering, and interpreting statutes. The bill is an attempt to abandon this framework and upend more than 30 years of well-established administrative law.
H.R. 4768 is motivated by a desire to transfer to judges statutory implementation power that Congress has previously delegated to the executive branch. Congress has the power to enact clear, prescriptive laws that establish criteria and boundaries around agency implementation of statutes. If Congress perceives the executive branch to be implementing statutes in a manner inconsistent with their enactment, the appropriate response is to enact clearer and more- prescriptive statutes, not to upend three decades of established, overarching case law as H.R. 4768 seeks to do.
At root, H.R. 4768 seems motivated by the dissatisfaction of the political party that currently controls Congress with the statutory implementation decisions made by the current Administration, which is controlled by a different political party. These sorts of partisan disagreements are not an adequate reason to overturn more than 30 years of established case law governing federal administrative law.
Accordingly, we urge you to vote no on H.R. 4768.
Thank you for your consideration. Sincerely, AFL-CIO, American Association for Justice, Americans for Financial Reform, The American Federation of State County & Municipal Employees (AFSCME), Center for Responsible Lending, Consumer Federation of America, Daily Kos, Earthjustice, Economic Policy Institute, Free Press Action Fund, Institute for Agriculture & Trade Policy (IATP), National Association of Consumer Advocates, National Consumer Law Center, National Employment Law Project, National Hispanic Media Coalition, Natural Resources Defense Council, Public Citizen, U.S. PIRG, Union of Concerned Scientists, United Steelworkers (USW), Voices for Progress.
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Mr. JOHNSON of Georgia. Mr. Chairman, I yield back the balance of my time.
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Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.
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