    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                     SEPARATION OF POWERS RESTORATION ACT
                                    OF 2016

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                               REGULATORY REFORM,
                          COMMERCIAL AND ANTITRUST LAW

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 4768

                                   __________

                                  MAY 17, 2016

                                   __________

                               Serial No. 114-77

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Available via the World Wide Web: http://judiciary.house.gov
                                       ______

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                           COMMITTEE ON THE JUDICIARY

                       BOB GOODLATTE, Virginia, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        JERROLD NADLER, New York
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    DARRELL E. ISSA, California          STEVE COHEN, Tennessee
    J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
    STEVE KING, Iowa                       Georgia
    TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
    LOUIE GOHMERT, Texas                 JUDY CHU, California
    JIM JORDAN, Ohio                     TED DEUTCH, Florida
    TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
    JASON CHAFFETZ, Utah                 KAREN BASS, California
    TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
    TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

               Shelley Husband, Chief of Staff & General Counsel
            Perry Apelbaum, Minority Staff Director & Chief Counsel
                                     ------

        Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                       TOM MARINO, Pennsylvania, Chairman

                     BLAKE FARENTHOLD, Texas, Vice-Chairman

    DARRELL E. ISSA, California          HENRY C. ``HANK'' JOHNSON, Jr.,
    DOUG COLLINS, Georgia                  Georgia
    MIMI WALTERS, California             SUZAN DelBENE, Washington
    JOHN RATCLIFFE, Texas                HAKEEM JEFFRIES, New York
    DAVE TROTT, Michigan                 DAVID N. CICILLINE, Rhode Island
    MIKE BISHOP, Michigan                SCOTT PETERS, California

                          Daniel Flores, Chief Counsel
                          Slade Bond, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  MAY 17, 2016

                                                                       Page

                                    THE BILL

    H.R. 4768, the ``Separation of Powers Restoration Act of 2016''..     3

                               OPENING STATEMENTS

    The Honorable Tom Marino, a Representative in Congress from the
      State of Pennsylvania, and Chairman, Subcommittee on Regulatory
      Reform, Commercial and Antitrust Law...........................     1
    The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
      Congress from the State of Georgia, and Ranking Member,
      Subcommittee on Regulatory Reform, Commercial and Antitrust Law     5
    The Honorable Bob Goodlatte, a Representative in Congress from
      the State of Virginia, and Chairman, Committee on the Judiciary     6

                                   WITNESSES

    John F. Duffy, Samuel H. McCoy II Professor of Law, University of
      Virginia School of Law
      Oral Testimony.................................................     9
      Prepared Statement.............................................    12
    Jack M. Beermann, Professor of Law and Harry Eldwood Warren
      SCholar, Boston University School of Law
      Oral Testimony.................................................    22
      Prepared Statement.............................................    24
    Jeffrey Bossert Clark, Sr., Partner, Kirkland & Ellis LLP
      Oral Testimony.................................................    35
      Prepared Statement.............................................    37
    John D. Walke, Esq, Clean Air Director, Natural Resources Defense
      Council (NRDC)
      Oral Testimony.................................................    46
      Prepared Statement.............................................    48
    Ronald M. Levin, William R. Orthwein Distinguished Professor of
      Law, Washington University in St. Louis
      Oral Testimony.................................................    61
      Prepared Statement.............................................    63
    Adam J. White, Research Fellow, The Hoover Institution, Adjunct
      Professor, The Antonin Scalia Law School at George Mason
      University
      Oral Testimony.................................................    83
      Prepared Statement.............................................    85

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.....................   111
                            OFFICIAL HEARING RECORD
              Unprinted Material Submitted for the Hearing Record

    Supplemental material submitted by Jack M. Beermann, Professor of Law
        and Harry Eldwood Warren Scholar, Boston University School of Law.
        This material is available at the Subcommittee and can also be
        accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104928

                  SEPARATION OF POWERS RESTORATION ACT OF 2016

                                  ----------

                             TUESDAY, MAY 17, 2016

                           House of Representatives,

                      Subcommittee on Regulatory Reform,
                          Commercial and Antitrust Law

                          Committee on the Judiciary,

                                Washington, DC.

        The Subcommittee met, pursuant to call, at 1 p.m., in room
    2141, Rayburn House Office Building, the Honorable Tom Marino,
    (Chairman of the Subcommittee) presiding.
        Present: Representatives Marino, Goodlatte, Issa, Collins,
    Walters, Ratcliffe, Johnson, DelBene, and Peters.
        Staff Present: (Majority) Daniel Flores, Chief Counsel;
    Andrea Lindsey, Clerk; and (Minority) Slade Bond, Minority
    Counsel.
        Mr. Marino. The Subcommittee on Regulatory Reform,
    Commercial and Antitrust Law, will come to order. Without
    objection, the Chair is authorized to declare recess of the
    Committee at any time. We welcome everyone to today's hearing
    on H.R. 4768, the ``Separation of Powers Restoration Act of
    2016.'' And I now recognize myself for an opening statement.
        Today's hearing continues our discussion and inquiry into
    the 30-plus-year-old Chevron doctrine. Our prior hearing gave
    us an opportunity to examine Chevron, and question whether or
    not it remains appropriate in light of the modern
    administrative state.
        Today, we turn to H.R. 4768, the ``Separation of Powers
    Restoration Act of 2016,'' a piece of legislation offered by my
    friend from Texas, Congressman Ratcliffe. I am proud to
    cosponsor this legislation that would begin the process of
    reeling in administrative overreach.
        As Chief Justice John Roberts correctly described it 2
    years ago, in his dissent in City of Arlington v. FCC, ``The
    Framers could hardly have envisioned today's vast and varied
    Federal bureaucracy and the authority administrative agencies
    now hold over our economic, social, and political activities.''
        My own experience as an industrial banker, prosecutor, and
    now legislator, have exposed me to the myriad levels of hurdles
    and complete unknowns of the modern administrative state.
        Navigating this morass is a daunting task, if not
    impossible; challenges for employers and workers across the
    Nation. Agencies often too numerous to count interject
    themselves into nearly every aspect of daily life. And to make
    matters worse, the bureaucrats writing regulation know how to
    shape their rules to satisfy Chevron and achieve their sought-
    after outcome.
        For regulated entities, especially small businesses, the
    deck is stacked against them from the start. But these citizens
    have sent us to Washington as representatives of their
    interests, hardship, and, we hope, success. It is a privilege
    we often take for granted, and an honor that we can repay
    through thoughtful, clear, and concise lawmaking. The Chevron
    doctrine represents an abdication of the legislative
    responsibility.
        Over 30 years of Chevron deference, we have seen the
    gradual creep of executive agencies from administrators of the
    legislative process to becoming legislators themselves. Rather
    than executing the will of Congress, agencies now have the
    freedom to define the law as they see fit. This is not a system
    that respects the checks and balances that have existed since
    the first days of our Nation.
        Chevron and its progeny are a departure not only from the
    Constitution, but from the Administrative Procedure Act,
    Congress' original effort to bring order to the rulemaking
    process.
        Today's discussion on the ``Separation of Powers
    Restoration Act of 2016'' presents an opportunity to reassert
    the lawmaking authority of Congress. It embodies the tripartite
    vision of governance established by our founders. The
    unfortunate nature of the 21st Century administrative state is
    its breadth and reach.
        As I said in March, while the Chevron doctrine may not be
    as glamorous or headline-worthy as other issues before
    Congress, its effect on the everyday lives of Americans cannot
    be understated, and its ability to fundamentally change the
    working of our government, and undo the guards long put in
    place to prevent tyranny and abuse, is profound.
        Our goal today is to examine the bill before us. Our hope
    is craft a final bill that creates stability in the rulemaking
    process, removes the power to legislate that has slowly found
    its way into the rulemaking process, and return the judiciary
    to its proper role and power to say what the law is.
        [The bill, H.R. 4768, follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                     __________

        Mr. Marino. We are fortunate to have a panel of witnesses
    with a wide range of expertise and experience on this issue. I
    look forward to their testimony and an engaging discussion of
    this important issue. I now recognize the Ranking Member of the
    Subcommittee, Mr. Johnson from Georgia.
        Mr. Johnson. Thank you, Mr. Chairman. 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 v. Natural Resources Defense Council, reviewing courts
    may only invalidate an agency action when it violates a
    constitutional provision, or when an agency 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.
        Judicial deference is borne from principles of political
    accountability and separation of powers. 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 interest, are not judicial ones.
        Our Constitution vests such responsibility in the political
    branches.'' H.R. 4768, the ``Separation of Powers Restoration
    Act of 2016,'' so-called, would eliminate this longstanding
    tradition of judicial deference to agencies' interpretation of
    statutes and rules by requiring courts to review all agency
    interpretations of statutes and rules 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 rulemaking process with their own judgments. Compare this
    approach with other deregulatory bills passed this Congress
    that would greatly diminish judicial review over deregulatory
    actions by dramatically shortening the statutes 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, threatening to impose
    years of delay and untold cost on taxpayers. When it benefits
    the public or our environment, Republican legislation slams the
    courthouse doors shut through sweeping restrictions on the
    court's ability to protect public health or the environment.
        These proposals, which are transparently the design of the
    donor class to minimize their exposure to legal accountability,
    are just another example of how some not only want the fox to
    guard the chicken coop, they want to give the fox the
    responsibility of keeping the chicken coop clean as well. H.R.
    4768 is more of the same.
        In closing, I look forward to testimony from our esteemed
    panel, and I thank the witnesses for their testimony. And with
    that, I yield back.
        Mr. Marino. The Chair now recognizes the Chairman of the
    full Committee, Mr. Bob Goodlatte of Virginia, for his opening
    statement.
        Mr. Goodlatte. Thank you, Mr. Chairman. The modern Federal
    administrative state is an institution unforeseen by the
    Framers of our Constitution and rapidly mushrooming out of
    control. The ``Separation of Powers Restoration Act of 2016''
    takes square aim at one of the biggest roots of this problem--
    the Chevron doctrine, under which Federal courts regularly
    defer to regulatory agencies' self-serving interpretations of
    the statutes they administer. 1Similarly, the bill takes on the
    related Auer doctrine, under which courts defer to agencies'
    interpretations of their own regulations.
        In perhaps the most famous of Supreme Court's early
    decisions, Marbury v. Madison, Chief Justice Marshall declared
    for a unanimous Court that, ``It is emphatically the province
    and duty of the judicial department to say what the law is.''
        Since the Chevron doctrine allows judges to evade
    interpreting the law and instead to defer to agencies'
    interpretations, one must ask--is Chevron faithful to Marbury
    and the separation of powers?
        In the ``Administrative Procedure Act of 1946,'' often
    called the ``Constitution'' of Administrative Law, Congress
    provided for judicial review of agency action in terms that
    were plain and direct. It stated that ``the reviewing court
    shall decide all relevant questions of law [and] interpret
    constitutional and statutory provisions.''
        That standard is consistent with Marbury and the separation
    of powers. But since Chevron allows judges to escape
    interpreting statutory provisions themselves, one must ask--is
    Chevron unfaithful not only to Marbury and the separation of
    powers, but also the ``Administrative Procedure Act?''
        These are not just academic questions. They are fundamental
    questions that go to the heart of how our government works, and
    whether the American people can still control it.
        The genius of the Constitution was that, by separating the
    legislative, executive, and judicial powers into three distinct
    branches, the ambitions of each branch would check and balance
    the ambitions of the others. As long as the separation is kept
    strong, that system of checks and balances preserves liberty--
    as the Framers intended.
        But judicial deference under Chevron weakens the separation
    of powers, threatening liberty. It bleeds out the judicial
    branch power to say that what the law is, transfusing that
    power into the executive branch. And, it tempts Congress to let
    the hardest work of legislating bleed out of Congress and into
    the executive branch, since Congress knows judges will defer to
    agency interpretations of ambiguities and gaps in statutes
    Congress did not truly finish.
        This leads us down the dangerous slope James Madison warned
    against in Federalist 47--``the accumulation of all powers,
    legislative, executive, and judiciary, in the same hands,''
    that ``may justly be pronounced the very definition of
    tyranny.''
        This is what Americans across our Nation feel in their
    bones to be dangerous when they fear a Federal regulatory
    bureaucracy growing beyond limits, spinning out of control.
    They fear a government emboldened to burst our system of checks
    and balances, trespass without limit on their liberty, and
    threaten their way of life--all at the whim of ``swarms of
    administrators'' in a far-off capital. They fear an all-
    reaching, unaccountable bureaucracy that threatens our system
    of self-government by and with the consent of the people.
        The ``Separation of Powers Restoration Act of 2016'' is
    timely, bold legislation directed straight at this problem. In
    one fell swoop, it restores the separation of powers by
    legislatively overturning the Chevron doctrine and the related
    Auer doctrine. This is reform that we must make reality for the
    good of the people.
        I look forward to the testimony of our witnesses as we
    consider this crucial bill, and I am particularly interested in
    hearing their views on whether more terms should be added to
    the bill to further guide the judiciary on the appropriate
    interpretation of statutes and regulations as it resumes fully
    ``the province and duty of the judicial department to say what
    the law is.''
        And I want to especially thank my colleague from Texas, Mr.
    Ratcliffe, for his leadership on this issue, and for
    introducing this fine legislation, and to Chairman Marino, for
    his work Chairing this Subcommittee and addressing this
    important subject. Mr. Chairman, I yield back.
        Mr. Marino. Thank you. Without objection, other Member's
    opening statements will be made part of the record.
        I will begin by swearing in our witnesses before
    introducing them. So would you please stand and raise your
    right hand?
        Do you swear that the testimony you are about to give
    before this Committee is the truth, the whole truth, and
    nothing but the truth, so help you God?
        Let the record reflect that the witnesses have answered in
    the affirmative. Please be seated. Thank you.
        I am going to read each of the witness'--each of your
    introductions. I will get through all six of you and then we
    will get back to you making your opening statements as well.
    Okay?
        John Duffy is the Samuel H. McCoy professor of law at the
    University of Virginia Law School. Prior to joining UVA's law
    school, Professor Duffy taught at the George Washington
    Benjamin N. Cardozo and William & Mary Schools of Law. He has
    also taught at the University of Chicago Law School. Professor
    Duffy served as an attorney advisor in the Department of
    Justice's Office of Legal Counsel, and practiced law with the
    firm of Covington and Burling.
        Professor Duffy is widely published, and a coauthor of a
    casebook on patent law. Professor Duffy earned his bachelor's
    degree in Physics from Harvard University, and his law degree
    from the University of Chicago, where he served as articles
    editor of the Law Review. Professor Duffy clerked for Judge
    Stephen Williams on the U.S. Court of Appeals for the D.C.
    Circuit, and for the late U.S. Supreme Court Justice Antonin
    Scalia. Welcome, professor.
        Jack Beermann is the Harry Elwood Warren Scholar at the
    Boston University School of Law. He previously taught at
    various universities, including Harvard, DePaul, the
    Interdisciplinary Center in Herzliya, Israel, and the China
    University of Political Science and Law.
        Professor Beermann is published widely in top-ranked
    journals. He has authored and coauthored four books on
    administrative law, including a widely-used casebook and the
    Emanuel Law Outline on the subject. Professor Beermann earned
    his bachelor's degree in political science and philosophy from
    the University of Wisconsin, Madison. He holds a law degree
    from the University of Chicago Law School, where he was elected
    Order of the Coif and served as editor of the Law Review.
    Welcome, Professor.
        Jeffrey Clark is a partner at the law firm of Kirkland and
    Ellis, LLP, and specializes in complex trial and appellate
    litigation. Mr. Clark has been with the firm since 1996, with
    the exception of 2001 to 2005, when he served as the Deputy
    Assistant Attorney General for the Environment and Natural
    Resources Division of the Justice Department. During his
    appointment at Justice, Mr. Clark supervised the division's
    Appellate Section, 50 lawyers and staff, and Indian Resources
    Section, 25 lawyers and staff. He has argued and won the noted
    Massachusetts v. EPA case in the D.C. circuit, and is rated AV
    preeminent, 5.0 out of 5, by the Martindale Hubbell, the
    highest level of professional excellence.
        Prior to joining Kirkland and Ellis, Mr. Clark was a law
    clerk for Judge Danny J. Boggs of the United States Court of
    Appeals for the Sixth Circuit. He has written and appeared
    extensively in public on topics in energy efficiency, clean
    air, and water law, administrative law, and constitutional law.
        Mr. Clark is an elected member of the Governing Council of
    the ABA Administrative Law Section, and is currently serving as
    co-chair of the ABA Section of Administrative Law and
    Regulatory Practice's Committee on Environmental and Natural
    Resources Regulation.
        Mr. Clark graduated with an AB in economics and Russian/
    Soviet history, cum laude, from Harvard University; an MA in
    urban affairs and public policy, summa cum laude, from the
    University of Delaware; and the J.D., magna cum laude, from
    Georgetown University Law School. Welcome, sir.
        Mr. Walke is a Senior Attorney and Clean Air Director for
    Natural Resources Defense Council in Washington, D.C. He is
    responsible for NRDC's national clean air advocacy program
    before Congress, the courts, and the U.S. Environmental
    Protection Agency. Prior to joining NRDC, Mr. Walke worked for
    the EPA in the Air and Radiation Law Office of the Office of
    General Counsel. At the EPA, he worked on permitting, air
    toxics, monitoring, and enforcement issues under the Clean Air
    Act.
        Prior to working for EPA, Mr. Walke was an associate at
    Beveridge and Diamond in Washington, D.C. Mr. Walke graduated
    from Duke University with a BA in English, and earned his JD
    from Harvard Law School. Thank you, Mr. Walke, for being here.
        Ronald Levin is the William R. Orthwein Distinguished
    Professor of Law at Washington University in St. Louis. Mr.
    Levin is the coauthor of a casebook, State and Federal
    Administrative Law. Professor Levin has chaired the Section of
    Administrative Law and Regulatory Practice of the American Bar
    Association, a group of which he is still an active member. He
    served as the ABA's advisor to the drafting committee to revise
    the Model State Administrative Procedure Act.
        Professor Levin also served as a public member of the
    Administrative Conference of the United States, and the chair
    of its Judicial Review Committee. Professor Levin clerked for
    the Honorable John C. Godbold of the U.S. Court of Appeals for
    the Fifth Circuit, and practiced with the Washington, D.C.,
    firm of Sutherland, Asbill, and Brennan. Mr. Levin received his
    BA from Yale and his JD from the University of Chicago.
    Welcome, Mr. Levin.
        Adam White is a fellow at the Hoover Institution, and the
    Adjunct Professor at the Antonin Scalia Law School at George
    Mason University. Prior to joining Hoover, he was an adjunct
    fellow at the Manhattan Institute. Mr. White practiced law with
    Baker Botts, working on various constitutional and regulatory
    matters, including energy infrastructure regulation.
        He also practiced law with Boyden Gray and Associates,
    where he wrote briefs on constitutional and regulatory issues
    in the Supreme Court and various other Federal courts. He
    continues to be of counsel to the firm in three pending cases
    involving the Consumer Financial Protection Bureau, and the
    Federal Communications Commission. Mr. White writes on the
    courts and the administrative state for such publications as
    the Weekly Standard, The Wall Street Journal, Commentary, The
    Harvard Journal of Law and Public Policy, and SCOTUSblog. In
    2015, he was appointed to the Leadership Council of the
    American Bar Association's Section of Administrative Law and
    Regulatory Practice.
        He co-chairs the Section's Judiciary Review Committee, and
    co-directs its Supreme Court Series. Mr. White received his
    bachelor's degree in Economics from the University of Iowa
    College of Business, and his law degree from Harvard Law
    School, where he graduated cum laude. He clerked for Judge
    David B. Sentelle of the United States Court of Appeals for the
    D.C. Circuit. Welcome, sir.
        Each of the witnesses' written statements will be entered
    into the record in its entirety. I ask that each witness
    summarize his or her testimony in 5 minutes or less.
        To help you stay within that time, there is a timing light
    in front of you, and it is--I do not know the colors because I
    am color-blind, but what I will do is as it gets down to the
    last color, which I am told is the red light, I will just
    diplomatically pick up my little gavel here and let you know
    that: would you please finish as soon as possible.
        Professor Duffy, you are on.

      TESTIMONY OF JOHN F. DUFFY, SAMUEL H. McCOY II PROFESSOR OF
               LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW

        Mr. Duffy. Thank you. Chairman Marino, Chairman Goodlatte,
    Ranking Member Johnson, and the distinguished Members of the
    Subcommittee, thank you for inviting me to testify before you
    today.
        At the outset, I would like to compliment the Subcommittee
    for devoting time and attention to this matter, and to this
    important piece of legislation, H.R. 4768, the ``Separation of
    Powers Restoration Act of 2016.'' The proposed legislation
    would be a welcome path out of the ever-growing morass of
    complex case law that these doctrines have generated over the
    past several decades.
        Importantly, the proposed legislation is admirable in its
    elegance and brevity, filling up less than a page of
    legislative text, and adding a mere two words, de novo, plus
    some accompanying stylistic changes, to the first sentence of
    Section 706 of the APA.
        This is a highly desirable approach to supplanting the
    Chevron doctrine and other judge-made doctrines of deference
    with a clear, easily understood, and theoretically sound
    principle to govern judicial review of all legal issues arising
    in administrative cases. My written statement and prior
    testimony sets forth in detail why I believe that the proposed
    legislation is not really changing the APA, but is instead
    confirming the statute's original meaning.
        I will mention one point in particular right now, which is
    that so strong are the statutory arguments in favor of de novo
    review: a de novo standard of review for legal questions from
    the original APA, that when Federal courts of appeals have
    focused on the relevant statutory language, they have
    interpreted the APA as requiring de novo review of statutory
    interpretation, even in the years after the Supreme Court
    decision in Chevron.
        One of the most important benefits of the proposed
    legislation is that it would eliminate the uncertainties and
    needless complexities of current decisional law. The Chevron
    doctrine as it exists today, and indeed the entire set of
    judge-made doctrines requiring deference to agency legal
    positions, is riddled with complexities and exceptions.
        Indeed, so pervasive are the exceptions that it would be
    wrong to assert that the proposed legislation would overrule or
    overturn the Chevron doctrine, or other doctrines requiring
    judicial deference on legal issues. It is far more accurate to
    say the legislation would get rid of what is left of these
    doctrines, and as discussed--as I have discussed in my written
    statement, what is left is not so much in many areas.
        Chevron and other doctrines requiring judicial deference on
    legal issues have come under increasing intellectual scrutiny
    over the past 2 decades, and because of the inherent
    theoretical weaknesses of the doctrine, the Supreme Court has
    made exceptions to them. As a result, the doctrines are both
    weakened and unpredictable.
        Just last year, the Supreme Court in King v. Burwell held
    that Chevron deference is inapplicable to any issue of deep
    economic and political significance that is central to a
    statutory scheme. King's exception to Chevron, which might be
    called a ``too big to defer'' exception, creates a major
    limitation on Chevron, and also increases the opportunity for
    more litigation about whether Chevron should apply at all in
    any particular case, making the doctrine less valuable for
    agencies, and more burdensome on all litigants.
        Another example about the complexities of this doctrine
    comes from the patents system, an area of administrative
    regulation in which I teach and write. Under consistent lower
    court precedent and Supreme Court practice, the Patent Office
    gets no deference in its interpretation of the substantive
    provisions of the Patent Act, but why?
        Under the reasoning of Chevron, which stresses the need for
    deference to expert politically accountable agencies, the
    Patent Office would seem to be a leading candidate to receive
    deference. There are, of course, doctrinal reasons for the
    absence of deference in this area, but those doctrinal reasons
    nearly underscore the complexity and incoherence of the case
    law spawned by Chevron. Though the proposed legislation would
    clearly end judicial deference to agency legal positions, it
    would not foreclose several unobjectionable judicial practices
    detailed in my written statement that are sometimes confused
    with deference.
        I will not detail those doctrines in my oral statement, but
    just say that those statements--those additional principles do
    not need to be codified in this proposed legislation, and I
    think the legislation as it exists now is an admirable and
    elegant vehicle.
        In closing, I once again commend the Subcommittee for
    devoting time to this important matter, and for devising an
    elegant way to restore the traditional role of Federal courts
    to say what the law is. Thank you for your time and attention
    to these issues, and thank you for the invitation to speak to
    the Subcommittee.
        [The prepared statement of Mr. Duffy follows:]

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                                   __________

        Mr. Marino. Thank you. Professor Beermann?

       TESTIMONY OF JACK M. BEERMANN, PROFESSOR OF LAW AND HARRY
        ELDWOOD WARREN SCHOLAR, BOSTON UNIVERSITY SCHOOL OF LAW

        Mr. Beermann. Thank you very much, Chairman Marino and
    Ranking Member Johnson, and distinguished Members of the
    Subcommittee. It is truly heartwarming as an administrative law
    professor to see the Committee spending such dedicated time and
    attention to this important issue that many of us have been
    working on for years. And I am a Chevron skeptic, as the
    material included with my written submission reveals, and the
    language of H.R. 4768 would certainly be a complete reversal of
    Chevron and related doctrines.
        But while I share the view that the Chevron doctrine has
    gone too far and has become too confusing, the long history of
    judicial deference to agency legal decisions may point in favor
    of a less complete rejection of deference.
        Long before Chevron, it was generally understood that
    reviewing courts should pay close attention to agency reasoning
    when reviewing agency legal decisions, especially agency
    construction of the agency's enabling act in order to ensure
    that agencies remained within their delegation from Congress.
        What was extreme about Chevron was its assumption that
    statutory silence or ambiguity virtually always indicates
    Congress's intent to delegate interpretive authority to the
    administrative--to the administering agencies. Even if this
    assumption was erroneous, that does not mean that Congress does
    not sometimes delegate interpretive authority to an agency. In
    highly technical or sensitive areas in which Congress expects
    agencies to apply expertise, ambiguity might be an indication
    that Congress might want a reviewing court to be highly
    attentive to the agency's views.
        For example, when Congress delegated authority to the
    Federal Communications Commission to award broadcast licenses
    in the public interest, convenience, and necessity, Congress
    certainly intended for the agency to be primarily responsible
    for determining the meaning of those general terms. It would be
    a fundamental shift if H.R. 4768 were understood to forbid
    reviewing courts from deferring to agency determinations of
    that or similar statutory language.
        It has also been suggested that H.R. 4768 would have the
    salutary effect of introducing strict construction of
    delegations of authority to agencies, and that this would be
    positive. There are reasons, however, to be cautious on both of
    these scores.
        First, merely instituting de novo review of agency
    interpretations of statutes would not necessarily mean that
    such delegations would be construed narrowly. There are many
    traditional methods of statutory construction that point toward
    broad constructions of statutes, including delegations of
    authority to agencies. Second, although there are circumstances
    in which, as a policy matter, it is appropriate to read
    delegations of authority narrowly, sometimes Congress intends
    agencies to have broad authority to address the social problems
    within its jurisdiction.
        For example, narrowly construing agency delegations
    regarding communicable diseases or chemical contamination could
    have serious social negative--negative social effects. Before
    Chevron, traditional legal doctrine was by and large successful
    at distinguishing those situations in which broad
    interpretation of agency authority is more appropriate than
    narrow interpretation.
        Also, while I share Chief Justice Roberts' concern that
    agencies should not have free rein to determine their own
    jurisdiction, I am afraid that it would be virtually impossible
    to craft statutory language that would distinguish
    jurisdictional from nonjurisdictional matters of statutory
    interpretation. So, although I agree that H.R. 4768 is a
    laudable effort to dispel some of the negative consequences and
    confusion caused by the Chevron doctrine, I am afraid that it
    would disable reviewing courts from taking into account the
    views of an administering agency on questions of statutory
    interpretation that would aid in advancing Congress's intent.
        So in my prior testimony, I suggested language under which
    Congress could react to all the problems of Chevron deference,
    without totally ruling out judicial deference to agency views.
    My suggestion would be, and I will repeat it here, to add
    language to APA 706 as follows:
        ``Unless expressly required otherwise by statute, the
    reviewing court shall decide all questions of law de novo, with
    due regard for the views of the agency administering the
    statute, and any other agency involved in the decision-making
    process.''
        Under this standard, courts would apply the pre-APA
    Skidmore factors for determining how much to defer to agency
    interpretation, with flexibility to shape deference to meet
    modern concerns.
        In my view, Skidmore includes a sensible set of criteria
    for determining whether an agency interpretation is worthy of
    deference. In fact, the term ``deference'' may be a misnomer in
    this context. When Congress has delegated to an agency the
    power to administer a statute, and the agency has thoroughly
    considered a problem and provided persuasive, valid reasoning
    for its consistent view of the meaning of the statutory term, a
    reviewing court is likely to be convinced that the agency has
    made a correct decision, or at least a decision that is as
    likely to be correct as any contrary view advanced by the
    challengers on judicial review.
        So this reform, in my view, would restore to Congress the
    ultimate decision to determine how much deference there should
    be to agency legal decisions, and that is of course where such
    authority belongs. Thank you.
        [The prepared statement of Mr. Beermann follows:*]
    ---------------------------------------------------------------------------
        *Note: Supplemental material submitted by Mr. Beermann is not
    reprinted in this record but is on file with the Committee, and can
    also be accessed at:

          http://docs.house.gov/Committee/Calendar/
          ByEvent.aspx?EventID=104928

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                                    __________

        Mr. Marino. Thank you. Mr. Clark?

               TESTIMONY OF JEFFREY BOSSERT CLARK, SR.,
                     PARTNER, KIRKLAND & ELLIS LLP

        Mr. Clark. Thank you, Chairman Marino, Ranking Member
    Johnson, and distinguished Members of the Committee, and
    thank--is it not on? There we go. Apologies.
        Thank you, Chairman Marino and Ranking Member Johnson and
    Members of the Committee, for the opportunity to appear before
    you today to speak about the ``Separation of Powers Restoration
    Act of 2016.'' It is important that the title that you gave to
    this legislation--it indicates, you know, where you are coming
    from, which I agree with.
        You know, the separation of powers was an idea crystallized
    by the French thinker Montesquieu, and the Founders knew a good
    idea when they saw one, and they embedded that idea into the
    structure of the constitution and the difference between
    articles I, II, and III.
        The Chevron doctrine is entirely foreign to that classical
    conception of the Constitution, and I would submit to you that
    there is zero evidence that the Congress that adopted the APA,
    intended that to occur, intended such massive delegations or
    intended to violate the separation of powers. And so I agree
    with Professor Duffy that what your Act is doing is really
    restoring not just the separation of powers, but the original
    meaning of the APA which, in any event, even if there were
    ambiguity, is something that should be interpreted consistent
    with the Constitution, or to avoid separation of powers
    concerns.
        The Chevron doctrine was never squared with the separation
    of powers, which makes it a defective decision on its own, and
    there is a lot of talk about Chevron being a case about
    expertise, but I would submit to you that it is a very curious
    decision if that is what it is. It talks about expertise, but
    the test that it adopts has ``expertise'' nowhere to be found
    in it.
        The first step of the Chevron two-step is to look at the
    text of the statute, and the second step is, once again, to
    look at the text of the statute in terms of whether the agency
    has produced a reasonable construction of it. There is no
    portion of the Chevron test that has expertise built into it,
    so to defend the Chevron decision on expertise grounds, it
    seems to me, makes little sense and is something that, if it is
    being supported on that ground, it must be really supported
    because of results that it produces that those who favor those
    results like.
        In practice--and this is a perspective I can help to bring
    to you as being a practitioner, as being someone who served in
    the government--I can tell you that, you know--and I set it out
    in my analysis--there was a particular compromise that animated
    Chevron. I think that the extent to which that compromise was
    ever really adhered to, it has broken down. The approach that I
    see--and I think, to be fair, I saw it not just in this
    Administration, but I also saw it to some extent in the Bush
    administration--I saw approaching the statute with a particular
    idea in mind about what public policy in some area should be.
    It did not look first to the statute to see what instructions
    you, as Members of Congress, had given the executive branch in
    a particular area.
        It instead looked at those constraints as inconveniences to
    be dealt with, essentially, and so various smart lawyers are
    sicced on the problem of, ``How do we get this through the
    Chevron two-step? How do we secure deference?'' And from that
    perspective, Chevron, I think, has been a failed experiment as
    well.
        There has been a lot of talk about Sidmore deference as
    well, and I would caution you, and disagree with those who say
    that Sidmore deference should be the substitute, Chevron should
    be wiped off the map, adopt Sidmore. My first question about is
    Sidmore is, what work is it really doing? It is essentially
    urging courts to take seriously the reasons that agencies have
    given. That is, you know, number one, what courts already do
    when they read briefs in the Supreme Court from the Solicitor
    General or from the Justice Department in cases.
        And in fact, the agency already has an immense
    institutional advantage because it gets to pre-brief those
    issues by writing the decision, and also, given administrative
    law waiver doctrines that have risen up, it gets a preview of
    all of those who object to the role as well, and gets to write
    the reasons in light of those comments and objections that have
    been filed or evidence that has come out in the adjudicative
    process.
        And my other objection to Sidmore is I think it is entirely
    indeterminate. It is not rule-like. It would produce whatever
    outcome the judges who are applying it would see fit to apply.
        So, I applaud the Subcommittee and Congress for--and the
    drafter of the legislation--for proposing this solution, which
    I think is elegant, and the last thing I would like to do is
    just offer to you a couple of second-bests in case there are
    other ways, you know, to skin the cat, as it were, of too much
    authority being given to the executive branch.
        Number one is it is widely acknowledged the Chevron
    doctrine's implied delegation rationale is a legal fiction, and
    it is not something that Congress actually ever adopted itself.
    You could more narrowly target reversal of that. Also, I agree
    with the major questions doctrine enunciated in Brown &
    Williamson and King v. Burwell. That is also something that you
    could enshrine, even if you did not go as far as this
    legislation.
        And the last second-best I offer for you was to overrule
    Brand X and allow that in situations where the courts get to a
    question first, the agency should be bound; they should not be
    able to override judicial decisions. That is turning the
    separation of powers on its head.
        So, in closing, thank you for the opportunity to speak
    today, and the ultimate second-best is to write clear statutes,
    and to think about how the administrative agencies might try to
    circumvent them, and I would urge you always to keep that in
    mind when you pass new legislation. Thank you.
        [The prepared statement of Mr. Clark follows:]

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                                   __________

        Mr. Marino. Thank you. Mr. Walke?

       TESTIMONY OF JOHN D. WALKE, ATTORNEY, CLEAN AIR DIRECTOR,
                NATURAL RESOURCES DEFENSE COUNCIL (NRDC)

        Mr. Walke. Thank you, Chairman Marino, Ranking Member
    Johnson, and Members of the Subcommittee, for the opportunity
    to testify today. H.R. 4768, the ``Separation of Powers
    Restoration Act of 2016,'' is a deeply flawed and harmful bill
    that should not become law.
        My oral statement will address two basic topics: the
    antiregulatory legislative context that the bill now joins, and
    second, the bill's numerous flaws and harmful consequences.
    These harms include impaired safeguards for public health,
    safety, the environment, financial markets, consumer rights,
    civil rights, and other social concerns that Federal regulatory
    statutes address.
        Additional harms include reduced political accountability,
    even more or overburdened courts, increased judicial forum
    shopping, greater uncertainty for regulated entities, and the
    waste of public resources and tax dollars.
        H.R. 4768 overthrows a longstanding and well-founded
    framework for judicial review. When acknowledging a regulatory
    process grounded in extensive administrative records, lengthy
    processes of public input and expert evaluations, that
    framework is ultimately carried out by officials appointed and
    confirmed by elected officials working under an elected
    president. H.R. 4768 substitutes for that system one in which
    the judiciary may nullify agencies' reasonable regulations
    because one judge or a set of judges may prefer a different
    reasonable regulation or outcome. H.R. 4768 permits the
    judiciary to ignore administrative records and expertise, and
    to substitute its own inexpert views and limited information.
        In my testimony I quoted Justice Scalia's opinion for the
    Supreme Court in City of Arlington where he said a de novo
    review standard practiced by 13 different courts of appeals
    would end up applying a totality-of-the-circumstances test,
    which Justice Scalia recognized not to be a test at all. He
    wrote that ``this would simply be an invitation to ad hoc
    judgments that would render the binding effects of agency rules
    unpredictable, destroy the whole stabilizing purposes of the
    Chevron doctrine, and result in chaos.''
        To impose this kind of judicial fiat seems especially odd
    coming from Members of Congress who have repeatedly condemned
    supposed judicial overreach, and who constantly point out that
    the judiciary is unelected. It seems that the bill's supporters
    are so intent on overturning our system for protecting the
    public through regulation that they are willing to empower a
    Federal judiciary that they have long denounced, even though
    Congress has the constitutional authority to change regulatory
    statutes, or to alter or reject individual regulations anytime
    it wishes. But Congress does not do that because the public
    will not support it.
        First, I would like to place H.R. 4768 in a broader
    legislative context. Since the start of the 112th Congress,
    there has been a wave of legislation embodying conservative
    political and corporate attacks on our modern system of Federal
    regulation and law enforcement by the executive branch. H.R.
    4768 is the latest bill to join that wave.
        During the 112th and 113th Congresses, there were 553 House
    votes by the majority to weaken environmental and health
    safeguards. These attacks failed. Having failed despite
    repeated attempts to weaken substantive organic laws they do
    not support, anti-regulatory politicians have retreated to
    broad attacks on the legal infrastructure backing Federal
    regulations. These include, for example, the REINS Act in its
    one-chamber legislative veto of regulations.
        Now H.R. 4768 joins that list. Members have promoted H.R.
    4768 by condemning a runaway administrative state that is out
    of control. Press releases promoting the bill have blasted
    numerous Obama administration regulations that the Members
    happen not to support. It is clear that support for the bill is
    motivated as much as by opposition to Federal safeguards, as it
    is by the tug-of-war over separations of power between the
    branches. Next, I would like to address some of the numerous
    harmful consequences the bill will produce.
        First, agencies will issue fewer regulations to carry out
    Federal laws and protect Americans. Many more congressional
    deadlines will be missed. I expect that is precisely what some
    opposed to regulation hope will happen.
        Second, agencies will resort to simply repeating ambiguous
    and unclear statutory language verbatim in regulations.
        Third, for the same reasons regulations will contain far
    fewer details to assist State and local regulators with
    implementation.
        Fourth, uneven application of national laws would adversely
    impact the certainty with which businesses could operate across
    the country. Justice Scalia's regulatory chaos would ensure.
        Agencies also would find it more difficult to adopt
    deregulatory rules that would be considered reasonable under
    today's Chevron test. In my experience, it is true that starkly
    deregulatory rulemakings in prior Administrations have
    foundered more often at the first step of Chevron. That would
    continue to be the case were H.R. 4768 to become law.
        One suspects, therefore, that political and corporate
    opponents of regulation, and proponents of deregulation, have
    made a calculation that the bill would have disproportionate
    adverse impacts on regulations rather than deregulation. That
    is almost certainly true, and is a central reason why the bill
    should not become law. For all of these reasons, I urge Members
    of the Subcommittee to oppose this legislation. Thank you.
        [The prepared statement of Mr. Walke follows:]

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                                   __________

        Mr. Marino. Thank you. Professor Levin?

    TESTIMONY OF RONALD M. LEVIN, WILLIAM R. ORTHWEIN DISTINGUISHED
          PROFESSOR OF LAW, WASHINGTON UNIVERSITY IN ST. LOUIS

        Mr. Levin. Chairman Marino, Ranking Member Johnson, and
    Members of the Subcommittee, thank you for the privilege of
    testifying at this hearing. My basic message today is to urge
    the Subcommittee to be cautious about trying to legislate on
    the challenging and subtle topic of the manner in which courts
    should review agency interpretations of statutes and rules.
    There has never been consensus about how to analyze these
    issues, either before or after the Chevron decision.
        For generations, courts have recognized that agencies have
    some inherent advantages in interpreting their enabling
    legislation. For example, agencies are more familiar with the
    complexities in the field than a generalist court can be; they
    have the responsibility to make the entire system work; and
    they are accountable to the political process in a way that
    life-tenured judges are not. At the same time, courts have
    always balanced their deference with a commitment to uphold the
    law if the agency's interpretation is untenable or
    unreasonable.
        Now, Chevron changed the way in which courts speak about
    these problems, but it did not change the state of affairs very
    much. The presumption that ambiguity constitutes a delegation
    sounds odd, but we should never forget that it does not exist
    in isolation. Courts have always found plenty of ways to work
    within and around the two-step formula in order to exert
    control over agencies, and the net results are not very
    different from what you see in other contexts in which other
    verbal formulas are used.
        But still, courts and lawyers and judges have been
    struggling with the complexities of this problem continuously
    since well before the APA was adopted, and you are asking for
    trouble if you assume that Congress can clear up these problems
    by adding a handful of words to Section 706. Now, one of the
    issues on the table today illustrates how difficult this is.
    Should the amendment add only the words ``de novo'' to the APA,
    or should it also codify the Sidmore test?
        Well, if you do the former, you throw out two centuries of
    tradition in which courts have found agency interpretations
    important to their decision-making. That is what most people
    would understand the words ``de novo'' to imply. On the other
    hand, if you do the latter, you accomplish very little, because
    the Chevron and Skidmore tests tend to lead to about the same
    results, no matter what the wording of those tests seems to
    say, and you also will send mixed messages that would cause a
    great deal of confusion.
        You know, until I read Professor Beermann's testimony, I
    thought everybody in administrative law agreed that the law of
    deference was disorderly and inconsistent prior to Chevron,
    during the Sidmore era. So I seriously doubt that trying to
    revive that regime by adding a few vague and conclusory phrases
    to Section 706 would clear things up, and these days you cannot
    use legislative history to cure these ambiguities.
        Well, where does this ill-conceived initiative to amend
    Section 706 come from? Partly it comes from a desire to shrink
    government, but expanding judicial power to overturn agency
    actions is a poor way to accomplish this, because in the long
    run, liberal judges can use that power to overturn conservative
    actions just as easily as the other way around.
        The initiative also stems from a belief that this amendment
    would recapture the original meaning of the APA, and I find
    that notion remarkable. For 70 years, administrative lawyers
    have taken it for granted that Section 706 allows courts to
    make their own judgments of how to decide questions of law,
    with or without deference. So it is startling to hear claims
    that all these lawyers, over three generations, have been wrong
    about that point in hundreds of thousands of cases.
        And ironically, as every member of this panel knows,
    Section 706 has been dramatically reinterpreted in multiple
    ways over the years to serve the changing needs of the
    administrative law system. Those changes range from the Hard-
    Look doctrine to the rulemaking record principle. So the sudden
    absorption with original intent seems quite baffling to me.
        Finally, this initiative grows out of the imaginative
    theory that deference to agency interpretations of their own
    regulations, so-called Auer deference, poses special dangers
    because it gives agencies too much incentive to write
    regulations vaguely. And yet, there is no evidence at all that
    agencies actually do act on that incentive. You know, people
    sometimes criticize Congress for relying too heavily on
    anecdotes, but nobody can say that here, because the critics of
    Auer deference have not even got an anecdote that supposedly
    supports their theory about its impact. Yet, on the basis of
    this completely speculative theory, they want to throw out a
    doctrine that courts have found helpful for at least three
    generations or more. To me, that attack on Auer is not
    credible.
        In conclusion, Mr. Chairman, the courts are actively
    engaged in trying to answering challenging questions about the
    right way to reconcile the advantages of deference with the
    need for judicial controls. They should be allowed to continue
    that process on their own and the legislature should stay out
    of it. That concludes my remarks, and I will be happy to answer
    any questions.
        [The prepared statement of Mr. Levin follows:]

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                                   __________

        Mr. Marino. Thank you. Professor White?

        TESTIMONY OF ADAM J. WHITE, RESEARCH FELLOW, THE HOOVER
     INSTITUTION, ADJUNCT PROFESSOR, THE ANTONIN SCALIA LAW SCHOOL
                       AT GEORGE MASON UNIVERSITY

        Mr. White. Thank you. Chairman Marino, Ranking Member
    Johnson, Chairman Goodlatte, and other Members of the
    Subcommittee, thank you for inviting me today to testify on
    this crucially important bill. In the last 3 decades, Chevron
    deference's greatest offender was Justice Antonin Scalia. He
    believed that Chevron struck a proper balance between judicial
    decision-making under the rule of law, and regulatory policy-
    making under constitutional principles of republican self-
    government.
        But in the last 5 years, Justice Scalia appeared to change
    his mind, or at least, he began to reconsider all of this. He
    hinted at this in opinions, and he is said to have expressed
    significant doubt about Chevron in private conversations, and
    one can surmise from Scalia's original pro-Chevron writings,
    why he would have changed his mind.
        Perhaps he concluded that lower courts were not enforcing
    statutory limits rigorously enough. Perhaps he concluded that
    modern administrative agencies simply did not respect statutory
    limits anymore, and were leveraging Chevron to negate those
    statutory limits. Or perhaps he looked around at his colleagues
    at the Court and the lower courts, and seeing fewer or no
    people--none of his colleagues willing to defend Chevron as
    strongly as he had, he decided it was time for the law to move
    in a direction that better reflects the realities of the modern
    administrative state and the rule of law, which differ starkly
    from three decades ago.
        But whatever his reasons, Congress should follow his
    example, not just in reforming Chevron, but in recalibrating
    the law with an eye not just to courts, but also to agencies,
    and to Congress itself. As Justice Scalia recognized, this area
    of law affects the incentives motivating both Congress and the
    agencies. The APA should be amended to improve those incentives
    to promote better legislation and better administration.
        For Scalia, Chevron's most important quality related not to
    the courts or to the agencies, but to Congress. Specifically,
    he believed that the law needed to set a stable, predictable
    principle for Congress to have in mind as it drafted, enacted,
    and amended Federal statutes.
        Indeed, Chevron is from the beginning rooted in a
    presumption about Congress, namely that Congress intended to
    allocate interpretive authority largely to the agencies rather
    than the courts. Whether that presumption was accurate or not,
    now is a good time for Congress to engage the issue directly.
        Whether it ultimately enacts the ``Separation of Powers
    Restoration Act of 2016'' in its current form, or amends the
    legislation to set other standards for judicial review,
    Congress needs to take the lead. Perhaps the most pressing
    constitutional debate of our time is that of the proper
    relationship between Congress, the courts, and the
    administrative state. It affects everything from financial and
    environmental law to regulation of the Internet, and
    increasingly to regulatory burdens on religious liberty.
        Thank you for grappling with this issue, and thank you for
    inviting me to testify today.
        [The prepared statement of Mr. White follows:]

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                                    __________

        Mr. Marino. Thank you. The Chair now recognizes Chairman of
    the full Committee, Chairman Goodlatte, for his 5 minutes of
    questioning.
        Mr. Goodlatte. Thank you very much, Mr. Chairman. Professor
    Levin, I will start with you. I will pick up where you left
    off. Congress should not meddle with this jockeying that is
    going on between the judiciary and the regulatory bureaucracy
    in terms of how the courts should decide what deference to give
    them to how they interpret the regulations.
        But, I mean, this is the very core of why Justice Scalia
    was after the fact questioning the merits of the decision that
    he was a part of, and that is why would Congress not want to
    assert its legislative powers when what we are seeing more and
    more--we do not need anecdotal evidence, we can just look at
    the statistics of the rising number of regulations that are
    written each year, and particularly the number of regulations
    that come out based upon old laws, laws written 20, 30, 40
    years ago where the bureaucracy comes back and says, ``You know
    what?
        We think that law is out of date now. We will just retool
    our regulations,'' does not have to go back to Congress at all
    for Congress to write a new law. All that has to happen is for
    us to rewrite this regulation. The courts will look at it, and
    the courts will say, ``Well, you know what, if that is what the
    bureaucracy thinks that regulation means, then we should give
    deference to that.'' So I very much disagree with that
    assessment, and I would be happy to give you an opportunity to
    respond.
        Mr. Levin. Thank you for the chance to respond to that.
    First, I do want to dissociate myself from Mr. White's claim
    that Justice Scalia was rejecting Chevron. Whatever he said in
    private conversations, in his public pronouncements in the City
    of Arlington case in 2013, he strongly reaffirmed it,
    challenged the dissent for taking it on. In his Michigan
    decision shortly before his death, he----
        Mr. Goodlatte. Well, let's get to the core of my point,
    which is what is the role of the Congress if the regulatory
    bureaucracy never has to come back here? When they see a need
    for a change in the law, they just change it themselves.
        Mr. Levin. Well, Mr. Chairman, as you may know, I have not
    been a fan of the Committee's regulatory reform effort.
        Mr. Goodlatte. I do not care whether you are a fan or not.
    Reply to my question.
        Mr. Levin. But what I am saying is Congress cannot
    effectively deal with the scope of review in two or three
    words, because it creates enormous complexities. It is just a
    few words. There would be endless debates about what it means.
    I am not saying it is beyond your province. I am just saying
    you cannot effectively do it.
        Mr. Goodlatte. But what do we do when a regulatory
    bureaucracy says, ``You know what, we are going to reinterpret
    this decades-old law and write new regulations because we think
    those are more pertinent to the situation we are trying
    today?''
        Mr. Levin. I think you should rewrite the laws to say what
    you want them to mean.
        Mr. Goodlatte. Sure. But that is this Congress compared to
    a Congress of 40 years ago. If we cannot get it back here, and
    they can bypass the Congress by writing regulations that they
    want to write--and for us to change that, we have to have it
    passed through the House, have to have it passed through the
    Senate where they have archaic rules requiring a 60-vote
    majority, and then we have to withstand a presidential veto if
    the President so chooses, whereas the bureaucrat--all they have
    to do is rewrite regulations on laws that were written long
    ago, and in no way contemplated the new uses that they are
    imputing to those old laws. What do we do about that?
        Mr. Levin. Well, I think you have mechanisms of oversight.
    But I think you have to recognize that when you give agencies
    authority to act, then they exercise that authority and they
    have the legal right to act in that authority.
        Mr. Goodlatte. So what is wrong with telling the courts
    ``you look at the law yourselves; do not give deference to one
    side or the other in court case?''
        Mr. Levin. If Congress tells the agency to use discretion,
    the court would be defying the statute if it did not allow the
    agency to use the discretion.
        Mr. Goodlatte. I do not think many statutes overtly say,
    ``Use discretion.'' I think what we do is we do not fill in all
    the details. We expect them to do so within the black-letter
    law that is in front of them. And when they do not do that and
    then the courts look at those regulations, I think the courts
    are well within their authority to make their own decision
    rather than give deference to the bureaucracy, because you are
    just simply--both the courts and the Congress are then
    transferring power to the executive branch that we should not.
        Mr. Levin. Sometimes what we call deference is simply
    recognizing that they used legally delegated authority that the
    court may not second-guess, and that is often considered a
    question of law, and if you pass a statute saying the court
    shall not allow the agency to use that discretion, which this
    statute appears to do----
        Mr. Goodlatte. Mr. Duffy, would you like to jump in here?
        Mr. Duffy. I certainly agree that--he just made a point
    that Jack Beermann made in his testimony, which is that a lot
    of times, the practice is not really deference. In Chevron
    itself--and this is actually exactly what you said, that
    sometimes Congress writes a framework, and expects the
    administrative agency to put in reasonable rules. That actually
    what was happening in Chevron, and I was just looking back at
    my article that dealt with this some years ago.
        The Solicitor General appearing before the court in Chevron
    itself did not come up with some newfangled deference test.
    Instead, they began their legal argument with quoting the
    rulemaking power of the agency in full, which is what this
    Congress gave to the agency.
        And the basic point of my testimony, I think, and also, I
    think, Professor Beermann's testimony, is that this legislation
    would force the agencies to justify their authority on the
    basis of statutory law. And that is, I think, the core of what
    is at stake here and I very much believe that Congress does
    have something to say about this.
        The entire APA, which is something that all of us law
    professors teach in administrative law and have taught for
    decades, that is Congress' view about how agencies should be
    structured. I think that is perfectly appropriate for
    representative democracy to have the greatest deliberative body
    in that democracy think about how power should be allocated. So
    I strongly disagree with the idea that Congress should not have
    anything to do with it. That is the very statute that I teach
    through a course called ``administrative law.'' I think that
    your legislation is perfect to try to force the courts to go
    back and say, ``What we are really looking for is to find
    administrative--to find agency authority if they have it.''
        Mr. Goodlatte. Thank you. I agree. Thank you, Mr. Chairman.
    I yield back.
        Mr. Marino. The Chair recognizes the Ranking Member, Mr.
    Johnson.
        Mr. Johnson. Thank you. Gosh, we are talking about
    regulatory reform, judicial deference to agency rulemaking,
    restoring, as you put it, Professor Duffy, restoring the
    traditional role of courts to determine what the law is. When
    has there ever been a time when there has not been judicial
    deference to agency rulemaking?
        Mr. Duffy. If that is a question to me, I think that----
        Mr. Johnson. It is.
        Mr. Duffy. I think that the answer is that even today, for
    example, with the patent system there is no deference to the
    Patent Office's view of what the law is, and that is a good
    example of why the reasoning of Chevron does not even hold up
    in modern doctrine. The Patent Office is highly expert. They
    are not even an independent agency, they are in the Department
    of Commerce. It is a very complicated statute that has vague
    words in it, and yet the courts have always--and I am not just
    talking about for 20 years or 30 years, I am talking about for
    hundreds--for over 100 years, the courts have determined the
    meaning of those statutory words ``de novo.''
        Mr. Johnson. Well, Professor Levin, would you respond to
    that, whether or not the--in the situation of the Patent
    Office, de novo review.
        Mr. Levin. Well, I think Professor Duffy is more the expert
    on the patents system than me. I do know that there is a
    specialized court--the Federal circuit--that passes on patent
    cases, and so Congress has specifically set an expert tribunal
    where you would expect to have more intrusive judicial review
    than elsewhere. But I would say generally the norm is
    deference, and has been throughout our history.
        Mr. Johnson. So, when the Congress decides that it wants to
    clarify by statute a rule that has been interpreted and placed
    in effect by Federal agency, a rule that has been promulgated,
    and the Congress decides that it wants to clarify that area of
    the law by statute, it always has the ability to do so. Is that
    not correct?
        Mr. Levin. It can revise the substance of the law, if that
    is what your question is, and that is true. The Chairman did
    point out that it is hard to get such a law passed, but it is
    within the power of Congress to do it.
        Mr. Johnson. And that is due to, basically, legislative
    ossification. We talk about regulatory or rulemaking
    ossification, but we have had legislative ossification around
    here for about 5 years or so, and I get----
        Mr. Levin. That is because of the legislative ossification
    of the past 5 years plus the inherent nature of the
    constitutional system with bicameralism and presentment.
        Mr. Johnson. Which is a good thing when it works.
        Mr. Levin. Right.
        Mr. Johnson. If there is gridlock and it does not work,
    then we do not get anything done and we continue to ossify our
    legislation which then impacts what Federal agencies would do
    to try to bring a rule up to modern standards and practical
    realities of the day.
        Do you contend, Professor Duffy, that Federal judges are
    politically accountable and should undertake the construction
    of rulemaking with their awesome power and their lifetime
    power? Are they----
        Mr. Duffy. I do not contend that Federal judges are
    politically accountable. The Framers of our Constitution made
    the Federal judiciary very independent by giving them life
    tenure.
        Mr. Johnson. So is it not consistent then that the Federal
    courts would--or that there would be judicial deference to
    agency rulemaking?
        Mr. Duffy. No, I do not think so. I think that the crucial
    question is what does Congress want? Now, if Congress wants an
    agency to have a lot of power, it can give an agency rulemaking
    power and that will be a lot of power. You do not need
    deference to understand----
        Mr. Johnson. Every agency has rulemaking power.
        Mr. Duffy. If the agency has rulemaking power, I still do
    not think you need deference. I think you just need to say that
    the agency has power to promulgate reasonable rules as to----
        Mr. Johnson. Mr. Walke, what would your response be?
        Mr. Walke. My response to much of this talk is that I think
    Americans are actually more concerned about the harms to the
    real world that would be unleashed and imposed by this bill.
    The press release is touting this bill--identify a laundry list
    of regulations and safeguards that Members happen not to
    support but do not muster the votes under the Congressional
    Review Act to overturn, and that is what Americans care about.
    And Marbury v. Madison and the like is very interesting, but
    this bill would create more harms and impose them on Americans.
        Mr. Johnson. Because it would hurt the ability of our
    Federal Government to protect the health, safety, and welfare
    of the people?
        Mr. Walke. That is correct. The supporters of the bill are
    touting the fact that it would overturn more regulations than
    are overturned today.
        Mr. Johnson. Thank you, and I yield back.
        Mr. Marino. The Chair now recognizes the gentleman from
    Texas, Congressman Ratcliffe.
        Mr. Ratcliffe. Thank you, Chairman Marino. I want to thank
    the witnesses for being here today. You know, the reason I
    drafted this legislation is because if you talk to everyday
    Americans, as I do, particularly small business owners, you
    hear a consistent message, and that is that our regulatory
    system is broken when we have got unelected bureaucrats taking
    ambiguously written laws and issuing regulations that vastly
    overstate their power.
        And, you know, I have not found myself in agreement with
    Chief Justice Roberts often recently, but even he agrees with
    me on this issue.
        As the Chairman pointed out, just a few years ago he wrote,
    ``The administrative state wields vast power and touches almost
    every aspect of daily life. The Framers could hardly have
    envisioned today's vast and varied Federal bureaucracy and the
    authority administrative agencies now hold over our economic,
    social, and political activities.''
        The practice of courts deferring to agencies' expansive
    interpretation of their power as directed under Chevron has
    created a serious problem with our regulatory system, and it is
    one that really has eroded our constitutional systems of checks
    and balances. And as you will hear me say frequently as we move
    through this process, this is not a partisan issue, or at least
    it should not be.
        This is not about Republicans versus Democrats, it is about
    article I versus article II. It is about respecting
    constitutional lanes of authority. This is not so much about
    executive overreach as it is about legislative under-reach.
    Congress is supposed to make laws, not unelected bureaucrats in
    the executive branch.
        And so I would urge my colleagues, my colleagues across the
    aisle, Republicans and Democrats should support this as a
    solution to a problem that all Americans, Republicans and
    Democrats, want to see fixed.
        And, Professor Duffy, I agree with you. This situation
    should never have occurred in the first place. The legislative
    history of the Administrative Procedures Act resulted in the
    explicit agreement amongst the lawmakers that there should be
    no deference on issues of law, and that the reviewing courts
    should decide all relevant questions of law and interpret
    constitutional and statutory provisions.
        I think the legislative history here is very clear, and in
    drafting H.R. 4768, my goal was to restore court review of
    agency interpretation as intended under the Administrative
    Procedures Act, and to restore the proper role of the judicial
    branch under the constitution as enumerated in Marbury v.
    Madison. And I think that this bill accomplishes that, and I
    know that a majority of you here agree with me, at least in
    part.
        Professor Duffy, I want to start with you. I want you to
    speculate with me for a minute. If the bill were to be enacted
    with the stylistic technical corrections that you offer, how do
    you think this would impact the regulatory process?
        Specifically, I want to know--how do you think it would
    impact rulemaking, and in turn, how would the rulemaking impact
    litigation? Because I know Professor Levin here has indicated
    that he thinks that litigation would increase, whereas I think
    from your testimony you agree with me that in fact it would be
    reduced. So if you would address those for me.
        Mr. Duffy. Yes. I think, as I said in my written testimony,
    that increasingly there is an enormous amount of litigation
    around Chevron, which is completely collateral to the basic
    question of whether the agency has authority under the
    statutory law to do what it wants to do.
        So instead of a brief focusing on that central issue, which
    is about what the law written by this Congress intended for the
    agency to do--and some of the provisions that the agency can
    rely on, of course, are rulemaking powers which give the agency
    quite a bit of power--but instead of focusing on that central
    issue and focusing on the law, we have an enormous set of
    doctrines now about Chevron, when it does apply, when it does
    not apply, and when there is just this giant hole through it
    which King v. Burwell created just last year that says, ``Well,
    if it is really important, then it does not apply at all.''
        And already I have seen that the litigation at the D.C.
    circuit has increased on these issues. For example, in the case
    about the Internet, the FCC's regulation of the internet, there
    is an entire collateral litigation about whether Chevron
    applies or not, that the court will have to go through before
    it gets to the basic question which I think is the central
    question, which is whether or not this Congress gave the
    requisite authority to the agency to write the rules. And so I
    think the legislation--I think it is great.
        I think it is very elegant, and it would simplify things
    and force courts to focus more on statutory law, which I think
    is a good thing.
        Mr. Ratcliffe. Thank you, Professor. Professor White, I
    appreciated your comments about Justice Scalia and the shift
    there, and I will correct Professor Levin; it is more than just
    cocktail talk. In Perez v. Mortgage Bankers, Justice Scalia in
    the concurring judgment said, ``The problem is bad enough and
    perhaps insoluble if Chevron is not to be uprooted.''
        But I wanted to ask you, Professor White, about--you
    referenced Professor Walker in your testimony and the fact
    that, in his findings, that 94 percent of rule drafters that he
    surveyed knew Chevron deference by name and 90 percent
    indicated they drafted rules with Chevron in mind. So, in your
    opinion, how do you think rulemaking with Chevron in mind
    changes the ultimate outcome of the rule?
        Mr. White. Well, administrators writing rules with an eye
    to Chevron understand that they have more room to play within
    the scope of the statute, that they already have a thumb on
    their side of the scale in litigation that will ensue, that
    they can take more aggressive legal positions with less
    thorough reasoning than they might need to if they were put to
    a harder test on judicial review.
        Now, Professor Walker did not, if I recall correctly, did
    not get into the specific ramifications. He talked about the
    fact that there was broad awareness of Chevron at the agencies,
    so I do not want to say too much, but it does not take a Ph.D.
    in political science to see how the incentives are going to
    work under Chevron. It is what Justice Scalia recognized, for
    better and for worse, throughout his career.
        Mr. Ratcliffe. Thank you. My time has expired, but Mr.
    Chairman, if I can just--I want to address something that Mr.
    Walke said, because you referred in both your written testimony
    and your oral testimony, saying that my legislation is ``deeply
    flawed and harmful bill that should not become law,'' which did
    not exactly hurt my feelings.
        But as I read on in your testimony, when you compared it to
    a wave of legislation attacking, ``modern system of Federal
    regulation akin to the REINS Act,'' I know you intended that as
    a harsh criticism, but I have got to tell you, that is about as
    high praise and compliment as I could ask for. So while you did
    not intend that as an endorsement, I appreciate it, and I yield
    back. Thank you.
        Mr. Marino. The Chair now recognizes the gentleman from
    California, Congressman Issa.
        Mr. Issa. Thank you. And, Professor Duffy, I am going to
    follow up because you made a good point and it got sort of cast
    away a little bit by Professor Levin. The fed circuit was set
    up to review, and they do review somewhat de novo, even that de
    novo review by the district courts, and it was because the
    decisions coming out of the district courts sometimes, or
    often, were going all the way to the Supreme Court.
        So the Special Appellate exists only because of the
    importance of not clogging the Supreme Court. Is that not true?
    That is basically why the fed circuit exists for purposes of
    patents.
        Mr. Duffy. Well, the Federal circuit was created for a
    variety of reasons that are complex, and I want to make it
    clear that the absence of deference long predated the Federal
    circuit.
        Mr. Issa. Exactly, and it is interesting; the Federal
    circuit does not show a lot of deference toward the district
    court decisions. But I want to get one thing quickly in the
    record. Markman, which is a recent Supreme Court ruling back
    in--well, not recent anymore.
        I have been here 15 years; it predated my congressional
    time. But the decision in the Markman case that, in fact, the
    judge was to rule on the meaning of the patent, not--and did
    not have to rely--could rely on the source documents and the
    record, the wrapper, if you will, and did not have to rely on
    any conclusion that either the patent holder or even the PTO
    reached. Is that not true?
        Mr. Duffy. Well, the Court did say that the job of
    determining the meaning of the patent was for the courts alone,
    and that certainly is true. In that particular case, they did
    not have before it an agency construction of the patent, so
    they did not, I think, address the relationship between the
    courts and the agency in that case, but one would think that,
    at least on issues of law, that there would be--of pure law--
    that there would be no deference.
        Mr. Issa. You know, there is a number of cases in the FCC
    and their theory that they have authority that they did not
    have for the first 20 or so years of the internet, that
    suddenly they believe they have, or the Federal Trade
    Commission that has decided that cyber security over personal
    identifiable information, meaning hackers getting into your
    site, they have authority. These forms of overreach are not the
    same ones we are talking about often, because they are not
    about rulemaking, they are about seizing authority, are they
    not?
        Mr. Duffy. Well, they do create--they do seize this
    authority usually through their rulemaking authority, though I
    guess the Federal Trade Commission might do it through a
    variety of other ways as well.
        Mr. Issa. Okay. So, for all of us here on this side of the
    dais, would you say that there is--and this is not--does not
    specifically go to this legislation--but that, at the time the
    Congresses passes a law and the first set of rules are being
    created, clean air, clean water, et cetera, that there is a--
    and I will let others opine on this--there tends to be a set of
    rules that often resemble what Congress intended, and that it
    is the continued and unfettered rulemaking over generations
    that often create the ability for an agency to take something
    never intended in the law, and simply create a rule because
    some new problem existed, a problem not envisioned in the law,
    but also not envisioned to be handed with that law to the
    regulators. Is that kind of a fair statement about the effect
    of time?
        Mr. Duffy. Well, I think the effect of time is interesting
    because, again, my overall overarching theme is that the courts
    and the agencies should look to the Congress to figure out what
    Congress--what kind of power Congress wanted to give the
    agencies.
        Mr. Issa. And that is a moment in time not adjusted for the
    time 20 years later in which they are making a new rule, is
    what I was saying.
        Mr. Duffy. One thing I think is interesting is some
    agencies have a super-rulemaking power that expressly allows
    them to modify statutory law, so rulemaking powers exist on a
    continuum. And if Congress wants to give an agency broad
    rulemaking authority, even as some agencies have like--in
    certain areas the FCC has this power; in certain areas----
        Mr. Issa. Or the Securities Exchange Commission. There are
    a number of them.
        Mr. Duffy. You can give that power to the agencies. So I
    again think that it depends on what the Congress wants. If
    Congress wants to give very broad rulemaking power, it is
    within their authority.
        Mr. Issa. Again, I am going to follow up just with a sort
    of a last question, because we are out of time. Congress has
    obviously not intended to have new laws created decades and
    decades after without a review, but Congress also did not--
    often did not put in a stop on rulemaking or, in fact, a sunset
    on an agency if not reauthorized. Are those not two of the
    elements that would not impact, if you will, Professors Levin
    and Walke, your statement that somehow we are all going to be
    hurt?
        Because the basic concept of reauthorizing rulemaking and/
    or reauthorizing agencies and thus their rulemaking would not
    be a great burden for the Congress, but ultimately might rein
    in this question of what is happening decades later without
    action. Mr. Clark?
        Mr. Clark. I agree with that, Congressman Issa, very much.
        Mr. Issa. So, even though it is not in the bill, would you
    all agree that those are elements in legislative activity that
    we should consider when making laws, notwithstanding your
    disagreement on other parts? Professor?
        Mr. Levin. Is this question should you have a sunset
    provision for rules to be periodically reauthorized? That has
    not worked out very----
        Mr. Issa. Or, in fact, a new rule is to be proposed. In
    other words, the authority--an agency under a given law relying
    on that law with no intervening activity, let's say 5 or 10
    years, you must either reauthorize the act or reauthorize the
    continued rulemaking, for example. And my reason for it is
    simple: It does appear, having looked at your testimony, having
    looked at how Chevron is often used against ancient rulings of
    Congress and modern dilemmas, do we not--in fact, part of
    taking back our responsibility could or should be to set a
    limit?
        I pass a new law, the Affordable Care Act. You get X amount
    of years to write legislation and you do not get to come back
    to us--or you must come back to us either for reauthorization
    of the Act, or reauthorization of rulemaking. Otherwise, the
    fact is how long do we let you make law after we pass one? And
    I think I am going to have to call it quits here. Any final
    comments?
        Mr. Walke. My fear, in light of recent years of Congress,
    was that it would result in kind of a default nullification of
    laws and----
        Mr. Issa. It would not be nullification of laws. It would
    be no new laws. Anyone else on the other side of that one want
    to weigh in?
        Mr. Beermann. I just want to point out without going too
    deeply into it that the sort of activity you are talking about
    is viewed much more skeptically applying the Sidmore factors
    than it has been under the Chevron factors in that if a statute
    that was passed long ago suddenly gets radically reinterpreted
    the courts tend to be skeptical about that, whereas under
    Chevron, as long as the statute is ambiguous or silent on the
    issue, the courts would defer.
        Mr. Issa. Thank you. Thank you, Mr. Chairman.
        Mr. Marino. Thank you. The Chair recognizes Mr. Johnson.
        Mr. Johnson. Mr. Chairman, I ask that the statement of the
    Ranking Member be submitted for the record without objection.
        Mr. Marino. So ordered.
        [The prepared statement of Mr. Conyers follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Marino. Gentlemen, we are going to go vote. I am going
    to forego our asking questions because I do not want to keep
    you here. I would love to come back because I would have you
    all to myself for the rest of the night, but I will not do that
    to you.
        So this concludes today's hearing. Thanks to all the
    witnesses for attending. Any Member and all Members will have 5
    legislative days to submit additional written questions for the
    witnesses or additional material for the record. The hearing is
    adjourned.
        [Whereupon, at 2:23 p.m., the Subcommittee adjourned
    subject to the call of the Chair.]

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