Separation of Powers Restoration Act of 2023
Floor Speech
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Mr. FITZGERALD. Madam Speaker, pursuant to House Resolution 495, I call up the bill (H.R. 288) to amend title 5, United States Code, to clarify the nature of judicial review of agency interpretations of statutory and regulatory provisions, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
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Mr. FITZGERALD. 288.
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Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I rise in strong support of H.R. 288, Separation of Powers Restoration Act or SOPRA. The Constitution separates the powers of the Federal Government into a system of checks and balances.
Article I, Section 1 grants Congress all legislative power, while executive power is granted to the President, and judicial power is vested in the courts, as we all know.
However, since 1984 when the Supreme Court ruled that courts must defer to an agency's interpretation of an ambiguous statute rather than what Congress intended, the executive branch has begun usurping the legislative branch to issue regulations with the force of law.
This consolidation of power departs from the constitutional principles and harms our own liberties. It is certainly not what our Founders intended. Yet, this 1984 ruling, known as Chevron, has paved the way for unelected bureaucrats to issue sweeping rules with no consequences.
Just in 2021, for example, executive branch agencies issued more than 3,200 rules that imposed vaccine mandates on workers. They were also involved in overturning the Keystone pipeline, and required a $15 minimum wage for Federal contractors, and allowed the IRS to spy on Americans' bank accounts.
Meanwhile, that same year, only 143 bills passed by Congress were signed into law. This means executive branch agencies impose more than 20 times as many mandates as actual legislators. These regulations are not without cost. According to the American Action Forum, Federal agencies collectively finalized $200 billion in regulatory costs in 2021, equivalent to more than $600 per U.S. household.
In 2022, we saw an additional $117 billion in regulatory costs added to the bottom line. Taken with rules from previous administrations and according to the Competitive Enterprise Institute, the total annual costs of regulation is almost $2 trillion, or about 8 percent of the U.S. GDP.
If it were a country, for comparison, U.S. regulation would be the world's 8th largest economy, only behind France.
If Members of this Chamber impose that kind of cost on taxpayers-- well, we know what would happen--we would all be voted out of office.
Yet, the Biden administration continues to issue binding rules and courts continue to apply the Chevron doctrine when determining its statutory authority. It is no surprise to see that the President will probably oppose this legislation and promise to veto it. Just 5 months into 2023, and we have already seen his administration circumvent Congress to make changes to non-competes, require climate disclosures by Department of Defense contractors, and ban the use of pistol braces nationwide.
An unchecked administrative state is dangerous to the American people. That is why it is imperative that Congress regain its legislative power by passing H.R. 288.
The Separation of Powers Restoration Act would displace Chevron and other precedents that require courts to defer to agency positions. It ensures that courts independently consider what Congress has said through its statutes rather than putting a thumb on the scale in favor of the Federal agencies.
By forcing courts to apply de novo review, the standard would reclaim the courts' constitutional role as the branch that interprets the law, and Congress' role will once again be underscored as the branch that writes them.
Agencies are not supposed to make laws, and it is past time to bring the power of legislating back to the branch our Founders intended.
Madam Speaker, I thank Chairman Jordan for his leadership on the issue, and I urge my colleagues to support the bill.
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Mr. FITZGERALD. Madam Speaker, I include in the Record a cost estimate for H.R. 288, prepared by the Congressional Budget Office. H.R. 288, SEPARATION OF POWERS RESTORATION ACT OF 2023, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY ON MAY 10, 2023 ------------------------------------------------------------------------ By fiscal year, millions of dollars-- ----------------------------------- 2023 2023-2028 2023-2033 ------------------------------------------------------------------------ Direct Spending (Outlays)........... a a a Revenues............................ a a a Increase or Decrease (-) in the a a a Deficit............................ Spending Subject to Appropriation a a a (Outlays).......................... ------------------------------------------------------------------------ a CBO has no basis to estimate the budgetary effects of enacting H.R.
288.
Increases net direct spending in any of the four consecutive 10-year periods beginning in 2034? a
Increases on-budget in any of the four consecutive 10-year periods beginning in 2034? a
Statutory pay-as-you-go procedures apply? Yes.
Mandate Effects:
Contains intergovernmental mandate? No.
Contains private-sector mandate? No.
H.R. 288 would authorize federal courts that review agency actions to decide all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules, without deferring to previous legal determinations by the agency.
Under the bill, federal courts could overturn some agency decisions that they would have upheld under current law. Some of those decisions could affect federal spending by overturning regulations that affect direct spending, revenues, and spending subject to appropriation. However, CBO has no basis for estimating either the likelihood that such actions would be overturned or what the effects on spending might be.
The CBO staff contact for this estimate is Jon Sperl. The estimate was reviewed by H. Samuel Papenfuss, Deputy Director of Budget Analysis. Phillip L. Swagel, Director, Congressional Budget Office.
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Mr. FITZGERALD. Madam Speaker, I yield 3 minutes to the gentleman from California (Mr. McClintock).
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Mr. FITZGERALD. Madam Speaker, I yield an additional 1 minute to the gentleman from California.
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Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may consume.
Once again, I remind everyone that SOPRA is not deregulatory. That has not been the goal at all. The goal is to forward this discussion between what should be legislative powers and the administration so that, in the future, it also sets a ground floor for many of the statutes. Congress remains free to regulate in a very detailed way and so do the administrative agencies.
I have heard this before. We heard it in committee, that somehow we were setting up or juxtaposing these two different goals, and it just isn't true.
I think that the other thing we would see is that you would find that legislators would do a much better job of drafting bills in the first place. I mean, shame on us if we leave a piece of legislation so vague that it opens the door for an administrative agency to somehow go in and interpret.
There are many times when the scope of the legislation is the first thing that should be determined before you even sit down and actually write the bill.
So, I know it is a criticism that has existed, but I don't think it is valid.
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Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may consume.
The other thing I will mention came up in our discussions during the committee. When you find yourself in a situation--we just had this discussion in relationship to the REINS Act--where the administrative powers continue to kind of escalate and bloom out from that original piece of legislation, what you will find is, later on, that has to be revisited because oftentimes it is done hastily, doesn't make sense, is arbitrary in nature. It is very difficult for legislators to even read through those powers that have been granted and try to make sense of that. It is another thing that came up in committee that I think is valid.
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Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may consume.
The other thing I will relay is that SOPRA does not turn judges into legislators. SOPRA helps to restore the court's constitutional role as the branch that construes the law.
Specifically, SOPRA requires that courts apply de novo review to all relevant questions of law when reviewing agency action. This means that the courts, not agencies, will interpret what a law means.
In other words, SOPRA enhances, not violates, the separation of powers under our Constitution. Within that discussion, the interpretation of the law is also something that I think would, once again, focus where we are.
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Mr. FITZGERALD. Madam Speaker, I yield 5 minutes to the gentlewoman from Wyoming (Ms. Hageman).
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Mr. FITZGERALD. Madam Speaker, I yield myself the balance of my time.
Once again, I will say that by forcing the courts to apply the de novo review, this standard would reclaim the court's constitutional role as the branch that interprets the laws and Congress' role as the branch that writes them.
Madam Speaker, I yield back the balance of my time.
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