Separation of Powers Restoration Act of 2023
Floor Speech
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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, the so-called Separation of Powers Restoration Act would completely upend the administrative process by eliminating judicial deference to agencies and by requiring Federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis.
More than 30 years ago, the Supreme Court held in Chevron USA v. Natural Resources Defense Council, that courts must give ``considerable weight'' to an agency's construction of a statute it administers. This makes sense, because while Congress sets broad policies, we delegate authority to executive agencies because we do not have the expertise to craft technical regulations ourselves, and we rely on these agencies to carry out the policies we enact.
Under the Chevron doctrine, courts respect the careful process undertaken by the dedicated professionals at our Federal agencies, many of whom who have decades of experience and vast technical expertise.
Courts give deference to an agency's interpretation of its statutory authority if the interpretation is determined to be reasonable. The Chevron doctrine has been the ruling precedent for judicial review of agency decisions for decades. But this legislation would do away with this longstanding precedent--a move that would throw uncertainty into the entire rulemaking process.
It would also empower judges to completely override the determination of agency experts, substituting their own judgment regardless of their comparative lack of technical knowledge and understanding of the underlying subject matter for the carefully crafted and scientifically based decisions made by agencies.
It is the height of hypocrisy for the party that rails against what it calls judicial activism to support legislation that is the very embodiment of the judicial activism.
This legislation would also make the Federal rulemaking process even more time consuming and costly than it already is, forcing agencies to adopt even more detailed factual records and explanations in order to withstand judicial scrutiny, which would further delay the finalization of critical lifesaving regulations.
These are regulations that protect the quality of the air we breathe, the water we drink, the food we consume, and the safety of the products we use. But this legislation is just the latest step in the Republican's decades-long assault on the regulatory process, trying to add hurdle after hurdle on the ability to issue regulations that protect public health and safety, regulations whose benefits consistently outweigh their cost, often by many multiples.
Slowing down the rulemaking process for these vital health and safety protections would put the lives of Americans at greater risk. By eliminating judicial deference to agencies, this bill would empower the courts to make public policy from the bench, ignoring the careful consideration and technical expertise of executive agencies.
Madam Speaker, I include in the Record two letters: The first from the Coalition for Sensible Safeguards, which includes more than 160 diverse labor, consumer, public health, food safety, financial reform, faith, environmental, and scientific integrity groups; and another letter from the Earthjustice organization. Coalition for Sensible Safeguards, June 5, 2023.
Dear Representative: The Coalition for Sensible Safeguards (CSS), which includes more than 160 diverse labor, consumer, public health, food safety, financial reform, faith, environmental, and scientific integrity groups representing millions of Americans, strongly opposes the Separation of Powers Restoration Act, H.R. 288.
Congress should be looking for ways to strengthen our country's regulatory system by identifying gaps and instituting new safeguards for the public. Unfortunately, this legislation does the opposite by placing even more obstacles before agencies as they work to provide new public health, safety, and financial security protections for the public.
The legislation will make our system of regulatory safeguards weaker by enabling judicial policymaking at the expense of agency expertise and congressional authority, thereby resulting in unpredictable outcomes and regulatory uncertainty for all stakeholders. If passed, H.R. 288 would prevent many critical updates to public protections, especially those that ensure clean air and water, safe food and consumer products, safe workplaces, and a stable, prosperous economy.
This problematic legislation attempts to reverse a fundamental and well-settled legal principle that has long effectively guided our regulatory system and provided a vital check on judicial overreach. It strives to abolish judicial deference to agencies' statutory interpretations in rulemaking by requiring a court to decide all relevant questions of law de nova, including all questions concerning the interpretation of constitutional, statutory, and regulatory provisions of final agency actions. Such deference was established as bedrock administrative law by the Supreme Court in the 1984 case Chevron v. Natural Resources Defense Council and came to be referred to as Chevron deference. Chevron deference has been upheld by hundreds of federal courts since and has been endorsed by both conservative and liberal Supreme Court justices and federal court judges.
In practice, abolishing Chevron deference will make the current problems in our country's regulatory process much worse in several ways. H.R. 288 will lead to even more regulatory burdens and delays, particularly for those ``economically significant'' or ``major'' new rules that provide the greatest benefits to the public's health, safety, and financial security.
There is substantial academic literature and expert consensus that intrusive judicial scrutiny of agency rulemaking is one of the main drivers of regulatory paralysis. Thus, increasing litigation risk for agency rules, which is exactly what this bill would accomplish by spawning hundreds of new lawsuits per year, will mean many more missed congressional deadlines and a regulatory process that fails to efficiently and effectively protect the public as Congress requires. This further ``chilling'' of rulemaking will certainly benefit special interests who will further pressure regulators to carve out loopholes, weaken safety standards, or otherwise obstruct new rulemakings with the greatly enhanced threat of a lawsuit waiting in the wings.
Of even greater concern, eliminating judicial deference to agency rulemaking would empower reviewing courts to substitute their policy preferences for those of the agency. One of the primary policy rationales for Chevron deference is that agencies have considerable and superior expertise in the regulatory sectors they oversee as compared to generalist judges with far less expertise. Thus, H.R. 288 aims to make it easier for the courts to overturn an agency's highly technical, resource-intensive, and science-based rulemaking without the expertise needed to make such determinations.
Further, abolishing Chevron review would actually undermine congressional authority, an irony given the name of the bill. De novo review of the scope and nature of congressional grants of authority to agencies invites courts to create law, ignore congressional intent, or both. In particular, it defeats a deliberate choice by Congress to confer on agencies the authority to resolve complex policy questions based on their expertise and the public input they receive during the rulemaking process.
Perhaps the most telling critique of attempts to replace Chevron deference with de novo review comes from former Justice Antonin Scalia, a vocal supporter of Chevron deference during his career and an indication of just how broad the support is for maintaining such deference. Writing for the majority in City of Arlington v. F.C.C., Justice Scalia argued that requiring that ``every agency rule must be subjected to a de novo judicial determination'' 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 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).]
H.R. 288 aims to achieve an unprecedented and dangerous move away from traditional judicial deference towards a system of enhanced powers for Big Business lobbyists and weakened protections for consumers and working families. We strongly urge opposition to the Separation of Powers Restoration Act, H.R. 288. Sincerely, Coalition for Sensible Safeguards. ____ Earthjustice, June 6, 2023. Re Opposition to H.R. 288, the so-called ``Separation of Powers Restoration Act of 2023''.
Dear Representative: On behalf of Earthjustice, I respectfully urge you to oppose ``H.R. 288, Separation of Power Restoration Act of 2023'' on the floor this week for vote. Chevron deference is a longstanding and well-founded framework for judicial review that acknowledges a regulatory process grounded in extensive administrative records, and long processes of public input and expert evaluations. The framework is carried out by officials appointed and confirmed by elected officials working under an elected president.
H.R. 288 in an effort to check the executive branch of power instead creates an unchecked judiciary branch and an unbalanced division of power. The judiciary would be given the power to nullify agencies reasonable regulations based on preference of a particular outcome or interpretation of a regulation. Agency decisions are currently based on extensive expert evaluations of complex natures. Without the reliance on the administrative record and process, judges' decisions will be based on limited information gleaned from the small sampling of litigants before them.
The Separation of Powers Restoration Act interferes in the stabilized standards used for judicial review of agency interpretation of administrative law. The act essentially transfers implementation power delegated to the executive branch to judges. Congress has the power to set forth strong laws that set forth boundaries around agency implementation. Agencies are prevented from making interpretations that are void of the required connection to the intent and statutory purpose.
Courts continuously set aside arbitrary and capricious or an abuse of discretion for a wide variety or reasons including the absence of a reasonable relationship to statutory purposes or requirements. Agencies must defend their actions and offer explanations that provide clear links to the statutory purposes based on unflawed reasoning. The fundamental nature of arbitrary and capricious threshold is created to protect the individual's rights by ensuring that no ones liberty is constrained without plausible justification. Government officials are thus only able to operate within the confines of the law.
H.R. 288 is likely to create a system in which agencies act to protect their interpretations by drafting unclear regulations. The regulations will have vague language with fewer details to prevent de novo reviews. Furthermore geographic differences in regulatory uncertainly will increase. The Chevron test creates a stabilized system in which federal statutes are all given the same interpretational deference in circuit courts where judges are in conflict on regulatory interpretation.
This bill is another anti-regulatory attempt to attack federal regulation by harming the legal infrastructure. Most erroneously, H.R. 288 would put the general public in harm's way, resulting in impaired safeguards for civil rights, consumer rights, health, the environment, safety, financial markets, and all concerns of federal regulatory statutes.
Accordingly, I urge you to vote no on H.R. 288.
Thank you for your consideration. Sincerely, Brielle L. Green, Senior Legislative Counsel, Earthjustice.
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Mr. NADLER. Madam Speaker, I yield such time as she may consume to the distinguished gentlewoman from Pennsylvania (Ms. Dean).
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Mr. NADLER. Madam Speaker, I continue to reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I continue to reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I yield myself the balance of my time.
This legislation would allow judges to undermine and second-guess the carefully crafted and scientifically based regulations issued by our expert administrative agencies. It would upset decades of Supreme Court precedent just to further the extreme antiregulatory agenda of the Republican majority, which puts the health and safety of all Americans at risk.
Madam Speaker, I urge my colleagues to oppose this dangerous legislation, and I yield back the balance of my time.
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Mr. NADLER. Madam Speaker, I claim the time in opposition.
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Mr. NADLER. Madam Speaker, as agency heads have stated time and time again, guidance documents, general statements of policy, and other agency guidance do not have the force and effect of law, and the agencies do not take enforcement actions based on supervisory guidance.
This amendment would unnecessarily require judicial review, de novo or otherwise, of guidance documents that have not been interpreted by courts to be given the force of law.
Before I discuss how guidance documents and rules differ, let's take a minute to consider the pure breadth of materials this amendment would cover: interagency statements, bulletins, policy statements, questions and answers, frequently asked questions, statements of policy, and advisories.
Rules and guidance from agencies are not only given different weight in court, but they also are developed through entirely different processes. Rules are made under the Administrative Procedures Act and, thus, follow a structured process for soliciting public comments, the review of those comments, and the release of any final rule. Agency guidance documents, by contrast, are not made under the APA process. Guidance documents are not subject to public review and comment. When you consider the range of materials that falls under the category ``guidance,'' this, naturally, makes sense.
A frequently asked questions page on an agency website cannot and should not be placed in the same category as rules that undergo months and years of review and development. Not only is it wrong as a matter of law to conflate these two classes of documents, but it would also signal to the judiciary that Congress sees them on equal footing; that is, rules and guidance on equal footing, which would muddy the judicial review of agency action.
I imagine the amendment sponsor did not intend for her amendment to accidentally expand what kinds of instruction from agencies should be given the force of law by expanding the Separation of Powers Restoration Act in this fashion, but in any case, that is what this amendment would do.
If agency guidance were treated the same as a rule, as wrong as that might be, agencies would be chilled and warned against providing much- needed information to the individuals and businesses who seek more feedback on an agency's point of view. They would be very hesitant to answer questions on question lines.
Finally, as I noted in response to a similar amendment to the REINS Act yesterday, by requiring agency guidance documents to receive the same review as rules, this amendment would create confusion among businesses subject to oversight from our executive branch agencies as to how much weight they should give agency guidance.
Expanding this bill to also require any guidance the agency gives to businesses about how the rules will be enforced is a drastic expansion of the Separation of Powers Restoration Act and would ensure that agencies provide less guidance for businesses, thus creating more uncertainty for businesses.
This amendment is an overstep that would further stifle the work of our agencies. I, therefore, oppose this amendment and urge my colleagues to do the same.
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Mr. NADLER. Madam Speaker, judging from what the gentlewoman just said, the gentlewoman does not understand the process at all.
Courts do not enforce guidance, so we are not prohibiting them here from doing what they do not do to start with. Courts do not enforce guidance. Guidance simply tells people how the courts will enforce the rules promulgated by the agencies.
So to say that you can't have guidance is to say that people must act in ignorance and bet their businesses on what the agency will do without knowing it because the agency can't tell them. That is absurd.
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Mr. NADLER. Madam Speaker, the gentlewoman is accurate as to what SOPRA would do, and for all the reasons I stated before, it is a terrible bill, as terrible as REINS is. I am not going to repeat those arguments.
As to this amendment, I don't have to have practiced law recently. I know how to read a bill. There are lawyers on my staff who know how to read a bill and we know, as I said before, that courts don't enforce guidance. There is no such thing.
Guidance issued by agencies tells the courts how to interpret the rules promulgated by those agencies. That is a simple fact. It is not debatable.
Similarly, to have an amendment that says there shall be no guidance is to have an amendment that says businesses should operate in the dark and bet their businesses on what an agency might do. That is ridiculous and harmful to business, and I urge my colleagues to oppose this amendment as I urge them to oppose the bill.
Madam Speaker, I yield back the balance of my time.
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