[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


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      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:]
    
    
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                                 __________
                                 
                                 
    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:*]
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    *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:]
    
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    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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