Separation of Powers Restoration Act of 2023

Floor Speech

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Ms. HAGEMAN. Madam Speaker, over the last few decades, and as accelerated during the Obama and Biden administrations, our constitutional separation of powers has been undermined by Congress' overdelegation of legislative powers to regulatory agencies in the executive branch.

H.R. 288, the Separation of Powers Restoration Act, or SOPRA, would begin to rectify this imbalance.

SOPRA requires nothing more than for courts to apply de novo review to all questions of law, including agencies' interpretation of statutes and rules. That is what courts are supposed to do under the Constitution. They are supposed to interpret the law.

SOPRA would override the ill-advised Supreme Court precedents like Chevron USA v. Natural Resources Defense Council that require courts to defer to agencies' interpretation of statutes and rules so long as they are reasonable but even if they are wrong, even if they are incorrect.

It would end this improper judicial deference that gives agencies greater leeway to pass rules carrying the force of law and which puts a thumb on the scale in favor of the administrative state and against the American people.

By doing so, SOPRA would help restore the constitutional separation of powers, reclaiming the courts' role as the branch that interprets the law and Congress' role as the branch that makes the law.

If we were to look at this issue as if it were a dartboard, courts should be aiming for the bull's-eye of what a particular statute means and enforcing the legislative intent.

Deference doctrines, however, allow courts to defer to an agency's interpretation of a statute or regulation if they are anywhere on the dartboard. This is improper, unconstitutional, and needs to change.

Agencies often try to avoid consultation and collaboration with the very people who are the experts, the people who must live, work, and often suffer under the rules and regulations that they mandate. It is a case of an all-knowing bureaucracy in Washington thinking that they know better than the people in the real world, the businessowners, the farmers, the ranchers, the construction workers.

SOPRA also would help to promote the electoral accountability of policymakers by ensuring that it is Congress' policies, and not those of unelected bureaucrats, that govern the American people.

Over the last couple of days, we have had the opportunity to talk about the REINS Act, and today, we are here talking about SOPRA, restoring constitutional order, applying Article I, Section 1 of the Constitution, where Congress makes the laws and the executive branch is merely there to carry them out.

As I indicated yesterday when talking about the REINS Act, I cannot understand why anyone in the legislative body would want to defer to unelected bureaucrats to make the decisions that impact the citizens of this country.

This body, Congress, was created to legislate. We need to jealously guard our power, our authority, and, ultimately, our accountability to the American public.

Again, I cannot understand why anyone who was elected would argue that we should allow agencies and folks sitting here in Washington, D.C., to make decisions that affect literally millions of people across this country without any accountability whatsoever.

I want to retake our authority to legislate. I want to make sure that this body carries out its responsibilities and duties. For that reason, I urge my colleagues to vote in favor of SOPRA.
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Ms. HAGEMAN. Madam Speaker, the Separation of Powers Restoration Act, or SOPRA, is great legislation that I fully support.

My amendment is simple and seeks to clarify that de novo judicial review applies to agency guidance as well as to agency rules and congressional statutes.

Specifically, my amendment explicitly states that interpretive rules, general statements of policy, and all other agency guidance are subject to de novo judicial review.

Unlike rules, guidance is undefined in the APA's definition section. Agency guidance consists of interpretive rules that explain how agencies interpret the statutes and rules that they administer and general statements of policy that prospectively advise how agencies may choose to exercise their authority.

Guidance is not subject to the APA's notice and comment requirements and, at least not officially, does not have the force of law or at least shouldn't have the force of law.

Yet, we have seen a growing trend of administrative agencies attempting to use guidance to have the force of law while at the same time avoiding even the APA process.

For example, in my private capacity before being elected to Congress, I was part of an effort to push back on the Department of Agriculture's attempt to mandate RFID ear tags on the cattle and bison of our Nation's ranchers. The agency tried to force this on the agriculture community through a two-page guidance document that was posted to the USDA website.

This circumventing of the congressional legislative and agency rulemaking process would have cost our cattle producers $2 billion to comply with this guidance, all without a single comment or public hearing.

Further concerning is that guidance is often not judicially reviewable because agencies then claim that it is not final agency action. Even when it is reviewed, the government then asks for deference to the agencies by the courts.

While the language in SOPRA is implicit that the requirement for de novo judicial review of all relevant questions of law applies to agency guidance, my amendment would make it explicit.

In closing, my amendment would clarify that agency guidance, which agencies routinely abuse, is subject to de novo judicial review under this bill.

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Ms. HAGEMAN. Madam Speaker, the irony of what my colleague on the other side is saying is that the only time that the courts would be addressing guidance is when the agencies are attempting to enforce it against someone outside of the agency.

Again, an example might be the EPA attempting to enforce their guidance against an irrigator in Wyoming because he moved an irrigation ditch and they have concluded that such irrigation ditch, through their guidance, is actually a navigable water of the United States.

Now, fortunately, recently, the Supreme Court of the United States slapped that down and has indicated that the EPA is no longer going to be able to abuse its power and try to control irrigation land and other resources by claiming that mud puddles and such are navigable waters of the United States, but that is just an example.

The only time that the courts are going to be looking at guidance is if the agencies are attempting to enforce it. Further, while my colleague on the other side would argue that these are just frequently answered questions and internal documents, the fact is that this is the way that agencies are circumventing the APA, circumventing the law, and attempting to enforce unofficial documents against the citizens of the United States of America.

I would also point out that yesterday we did pass a similar amendment to the REINS Act and what this does is it makes SOPRA and REINS consistent in terms of covering guidance documents as well as official rules.

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Ms. HAGEMAN. Madam Speaker, I find it so ironic, having been a practicing attorney for 34 years and fighting over these exact battles in court, that I am having someone who hasn't practiced for decades tell me that I am ignorant.

The agencies are the ones that attempt to enforce guidance, and I have defended lawsuits along that very line.

Therefore, while someone who may have sat in this room for years believes that he has the ability to judge what people in the real world deal with, the fact is that agencies do attempt to enforce guidance against citizens of this country.

The only thing that this amendment does is to say when that happens, the courts are to apply de novo review to the interpretation of what that guidance means. Nothing more and nothing less.

Again, this is a very simple amendment that says to the extent that guidance documents are before the court for interpretation, the courts must apply de novo review rather than defer to the agency interpretation of that guidance. It is very simple, and it is something that is appropriate and ensures that we are following our constitutional separation of powers.

Madam Speaker, I yield back the balance of my time.

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