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

                             THE CHEVRON DOCTRINE:
                     CONSTITUTIONAL AND STATUTORY QUESTIONS
                       IN JUDICIAL DEFERENCE TO AGENCIES

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

                                    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

                                   __________

                                 MARCH 15, 2016

                                   __________

                               Serial No. 114-68

                                   __________

             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

                                C O N T E N T S

                                  ----------

                                 MARCH 15, 2016

                                                                       Page

                               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     3
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     5

                                   WITNESSES

    Jonathan Turley, Shapiro Professor of Public Interest Law, The
      George Washington University
      Oral Testimony.................................................     8
      Prepared Statement.............................................    10
    John F. Duffy, Samuel H. McCoy II Professor of Law, University of
      Virginia School of Law
      Oral Testimony.................................................    30
      Prepared Statement.............................................    32
    George Shepherd, Professor of Law, Emory University School of Law
      Oral Testimony.................................................    42
      Prepared Statement.............................................    44
    Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The
      George Washington University Law School
      Oral Testimony.................................................    56
      Prepared Statement.............................................    58
    Emily Hammond, Associate Dean for Public Engagement & Professor
      of Law, The George Washington University Law School
      Oral Testimony.................................................    67
      Prepared Statement.............................................    68
    Jack M. Beermann, Professor of Law and Harry Elwood Warren
      Scholar, Boston University School of Law
      Oral Testimony.................................................    73
      Prepared Statement.............................................    75

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Bob Goodlatte, a
      Representative in Congress from the State of Virginia, and
      Chairman, Committee on the Judiciary...........................     4

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Response to Questions for the Record from Richard J. Pierce, Jr.,
      Lyle T. Alverson Professor of Law, The George Washington
      University Law School..........................................   112
    Response to Questions for the Record from Emily Hammond,
      Associate Dean for Public Engagement & Professor of Law, The
      George Washington University Law School........................   115
                            OFFICIAL HEARING RECORD
              Unprinted Material Submitted for the Hearing Record

    Supplemental statement submitted by Richard J. Pierce, Jr., Lyle T.
        Alverson Professor of Law, The George Washington University Law
        School. The statement is available at the Subcommittee and can also
        be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104665

        THE CHEVRON DOCTRINE: CONSTITUTIONAL AND STATUTORY QUESTIONS IN
                         JUDICIAL DEFERENCE TO AGENCIES

                                  ----------

                            TUESDAY, MARCH 15, 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 2:24 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Tom
    Marino (Chairman of the Subcommittee) presiding.
        Present: Representatives Marino, Goodlatte, Issa, Collins,
    Ratcliffe, Bishop, Johnson, Conyers, DelBene, and Jeffries.
        Staff Present: (Majority) Daniel Flores, Chief Counsel;
    Andrea Lindsey, Clerk; (Minority) Slade Bond, Minority Counsel;
    and Rosalind Jackson, Professional Staff Member.
        Mr. Marino. The Subcommittee on Regulatory Reform,
    Commercial and Antitrust Law will come to order. I apologize.
    First of all, we had votes and tried to get through them as
    quickly as possible.
        Without objection, the Chair is authorized to declare a
    recess of the Committee at any time. We welcome everyone here
    to today's hearing on the Chevron Doctrine: Constitutional and
    Statutory Questions of Judicial Deference to Agencies. And I
    now recognize myself for an opening statement.
        Today's hearing on the 30-plus-year-old Chevron doctrine
    presents interesting questions on the current state of the
    separation of powers, and the role of today's administrative
    state. These questions directly address the way our tripartite
    system of government works. For one, has judicial review of
    agency action evolved in a manner that respects the
    Constitution and the roles intended for the legislative,
    executive, and judicial branches? If there are issues, what can
    and should Congress do to address them?
        In Chevron, the Supreme Court established a framework for
    how courts should review an agency's interpretation of a
    statute it administers. As a threshold matter, the court must
    determine whether the statute at hand clearly speaks to the
    question addressed by the agency action. If it does, then the
    court must conclude that the agency acted as Congress willed
    it. But if the statute is silent, or ambiguous, and
    congressional intent is not clear, then the court must consider
    whether or not the agency's interpretation is based on a
    permissible instruction of the statute. If it is, then the
    court defers to the agency's interpretation.
        Although the Chevron doctrine is not as glamorous or
    headline worthy as some other issues we face in Congress, its
    indirect effect on the everyday lives of Americans cannot be
    understated. Its implications for the balance between the three
    branches of our government can be quite severe. In fact, many
    of the most significant decisions of the Supreme Court, in
    recent memory, centered on questions of administrative law. The
    focus is often on how agency officials interpreted a statute,
    rather than the substance of a statute itself as enacted by
    elected Members of Congress.
        In this environment, Chevron and the cases that followed
    have caused confusion, instead of stability in the rulemaking
    process. In Marbury v. Madison, among the earliest precedents
    set by the Court, Chief Justice Marshall declared that, ``It is
    the province and duty of the judicial department to say what
    the law is.'' By mandating deference to agency interpretation
    of statutes, however, the judiciary has arguably stripped its
    own ability and charge to do just that. For those of us up here
    on the dais, Chevron raises additional concerns.
        Throughout my time in Congress, and as a Member of the
    Judiciary Committee, I have decried the breadth and decree to
    which Congress has ceded its power to the executive branch and
    its agencies. 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.
        As Justice Thomas noted in his concurrence to the Court's
    Michigan v. EPA decision from last summer: ``Statutory
    ambiguity thus becomes an implicit delegation of rulemaking
    authority, and that authority is used not to find the best
    meaning of the text, but to formulate legally binding rules to
    fill in gaps based on policy judgments made by the agency
    rather than Congress.''
        In short, rather than executing the will of Congress, as
    set forth clearly through statute, agencies now have the
    freedom to define the law as they see fit. Some may argue that
    even the use of Chevron could be avoided by clearer
    legislation. This is true, and should be a goal for all in
    Congress. But, as long as Chevron stands, it still will not
    eliminate the opportunity and incentives for unelected
    bureaucrats, removed from the effects of their actions to set
    policy for our entire Nation. And we have seen it with just a
    small sample of overreaching EPA regulations like the Clean
    Power Plan, Waters of the U.S., and the Utility MACT rule found
    invalid in Michigan v. EPA.
        A possibility of Chevron deference encourages a search, by
    those inside and outside of government, for ambiguity in a
    statute that allows them to engage in creative rulemakings to
    accomplish whatever goals an agency or organization may have.
    Today, we get to examine all of these results. We are fortunate
    to have an excellent panel of witnesses before us to present a
    variety of views. I look forward to hearing from each of you.
        The Chair now recognizes the Ranking Member of the
    Subcommittee on Regulatory Reform, Commercial and Antitrust
    Law, my friend, Mr. Johnson from Georgia, for his opening
    statements.
        Mr. Johnson. Thank you, Mr. Chairman, and welcome everyone
    to this very riveting issue. 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.
        As the Supreme Court clarified recently, this significant
    policy concern has long supported a general rule favoring
    judicial review of agency action for arbitrariness and abuse of
    discretion subject only to rare exceptions. 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 the agency's rule
    exceeds its statutory authority to issue the rule 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. Professor Ron Levin, chair
    of the Judicial Review Committee for the Administrative
    Conference Of the United States, explains that this doctrine is
    born from principles of separation of powers, noting that it
    ``recognizes that Congress often decides to entrust
    policymaking authority in certain areas when it does so, and
    the agency acts within the scope of that delegation as the
    court understands it, a court is obliged to honor the
    legislature's expectations by upholding a rational exercise of
    that authority, even where the agency reaches a conclusion that
    the reviewing court would not have reached.''
        Although Chevron has taken on talismanic qualities in
    recent years, courts retain an important role in determining
    whether an agency action is permissible or arbitrary and
    capricious under the Administrative Procedure Act.
        In 2011, the court indicated that at the very least, there
    is substantial overlap between the second step of Chevron and
    ``hard look reviewing,'' under the APA. And while there is no
    shortage of debate on the principles of judicial deference as
    the American Bar Association administrative law section noted
    in 2012, Judicial Review largely remains stable today
    concluding that, ``Debate on these principles continues, but
    the prevailing system works reasonably well, and no need for
    legislative intervention to revise these principles is
    apparent.''
        I similarly oppose any attempt to abolish judicial
    deference through legislation. While I consider myself an
    ardent protector of the courts, it is a well-established
    doctrine that the province of the courts is deciding matters of
    the law, not substantive matters specifically delegated to
    agencies by Congress.
        Since the 112th Congress, many of the majority's
    deregulatory bills we have considered will enlist generalist
    courts to supplant the expertise and political accountability
    of agencies in the rulemaking process. Compare this approach
    with other deregulatory bills passed by Congress which would
    greatly diminish judicial review over deregulatory actions. For
    example, the House adopted an amendment to H.R. 8, the ``North
    American Energy Security and Infrastructure Act of 2015,''
    which reduced the statute of limitations for judicial review to
    just 90 days for certain energy claims. Immunizing certain
    energy projects from public accountability. In other words, the
    majority wants it both ways.
        When it benefits corporate interest, the regulatory
    legislation dramatically increases the judicial review of new
    regulations, threatening to impose years of delay and untold
    cost on taxpayers. When it benefits the public or our
    environment, deregulatory legislation closes the courthouse
    doors through sweeping restrictions on the court's inability to
    provide relief. So we have one set of rules for consumers, and
    one set of rules for corporations.
        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 to allow the
    fox to guard the chicken coop, they want the fox to install the
    chicken wire as well.
        In closing, I look forward to testimony from our esteemed
    panel. Pardon my attempt at humor. I thank the witnesses for
    their testimony, and I yield back.
        Mr. Marino. The Chairman of the full Judiciary Committee,
    Chairman Goodlatte, has been detained. He may show up, but in
    the event he does not, without objection, I offer his opening
    statement to be entered into the record.
        Hearing none, so ordered.
        [The prepared statement of Chairman Goodlatte follows:]
    Prepared Statement of the Honorable Bob Goodlatte, a Representative in
      Congress from the State of Virginia, and Chairman, Committee on the
                                   Judiciary
        The modern federal administrative state is an institution
    unforeseen by the Framers of our Constitution and rapidly mushrooming
    out of control. Today's hearing focuses on one of the pillars of that
    state--the Chevron doctrine, under which federal courts regularly defer
    to regulatory agencies' interpretations of the statutes they
    administer.
        In perhaps the most famous of the Supreme Court's early decisions,
    Marbury v. Madison, Chief Justice Marshall declared for a unanimous
    court that, ``[i]t is emphatically the province and duty of the
    Judicial Department to say what the law is.''
        Since the Chevron doctrine allows judges to evade saying what the
    law is, and instead 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, like Marbury, 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, but also to 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 of the Judicial Branch power
    to say 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--``[t]he 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 and 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.
        I look forward to the testimony of our witnesses as we explore the
    Chevron doctrine and what can be done in response to strengthen the
    separation of powers. I yield back the balance of my time.
                                   __________

        Mr. Marino. The Chair now recognizes the full Judiciary
    Committee Ranking Member, Mr. Conyers of Michigan, for his
    opening statement.
        Mr. Conyers. Thank you, Mr. Chairman. My colleagues,
    today's hearing focuses on whether the Supreme Court's
    articulation of judicial deference in Chevron is a concept that
    should be retained in Federal administrative law. I believe the
    Chevron doctrine should be retained for several reasons: First,
    enhanced judicial review would make rulemaking even more costly
    and time-consuming for agencies. The Federal rulemaking process
    is already deeply ossified, as they say.
        As the Nation's leading administrative law scholars have
    long observed, agency rulemaking is hampered by burdens imposed
    by both the courts and Congress. Indeed, Professor Richard
    Pierce, one of our witnesses, noted that more than 20 years
    ago, that the judicial branch is responsible for most of the
    ossification for the rulemaking process. Heightened judicial
    review would only worsen this problem because it would force
    agencies to formulate even more detail, factual records and
    explanations.
        Enhanced judicial review could also have the perverse
    effect of undermining agency accountability and transparency.
    It could encourage agencies to conduct rulemaking out of the
    public view, to issue guidance documents in lieu of rulemaking,
    or to cause them to avoid rulemaking altogether.
        I'm also concerned that the enhanced judicial review will
    undermine public participation in the rulemaking process. As
    the nonpartisan congressional research service has observed,
    public participation and agency decisionmaking is highly
    sensitive to cost and delay. And applying greater judicial
    scrutiny of agency rulemaking will favor those who can afford
    these greater costs.
        Large corporate interests, which are accountable only to
    shareholders and devoted to maximizing profits, already have
    the edge with their vast resources to bury an agency in
    paperwork demands and litigation with a goal of weakening
    regulatory standards. Rather than providing even more
    opportunities for the voices of corporate interests to prevail,
    we should be considering ways to ensure the voices of the
    public are strengthened in the rulemaking process.
        And finally, enhanced judicial review would encourage
    judicial activism. A less deferential judicial review standard
    would allow judges, in my view, to effectively make public
    policy from the bench while lacking the specialized expertise
    that agencies possess.
        The Supreme Court has had numerous opportunities to expand
    judicial review of rulemaking, but it has consistently rejected
    this approach. This reflects its long-held belief that
    generalist courts lack the subject matter expertise of
    agencies, are politically unaccountable, and should not engage
    in making substantive determinations from the bench. Enhanced
    judicial review, on the other hand, would allow general courts
    to impose their rules, to impose their personal policy
    preferences.
        It's ironic that the majority, which has long decried
    judicial activism, now seeks to give the judiciary a greater
    role in agency rulemaking. And what would be the impact on
    slowing down the rulemaking process? It means that rules
    intended to protect the health and safety of American citizens
    would take longer to promulgate and become effective. This
    means a delay for regulations that protect the quality of the
    air we breathe, and the safety of the water we drink, and the
    food we consume. And, so, I welcome the witnesses. I look
    forward to their testimony and return any time that I may not
    have used.
        Thank you.
        Mr. Marino. Without objection, other Members' opening
    statements will be made part of the record. I will begin now by
    swearing in our witnesses before I introduce you. So you would
    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? You may be seated.
        Let the record reflect that all the witnesses have
    responded in the affirmative.
        I'm going to go through each one of your bios and then
    we'll come back and start with questions. Jonathan Turley is
    the Shapiro Professor of Public Interest Law at the George
    Washington University Law School. He has served as counsel in
    some of the most notable case of the last two decades. He has
    served as a consultant on Homeland Security and constitutional
    issues, and is a frequent expert witness for Congress on
    constitutional and statutory issues.
        As a nationally recognized legal scholar, Professor Turley
    has written extensively in a range of areas. His articles have
    appeared in a variety of leading law journals and national
    newspapers. And he also contributes regularly to nationally
    syndicated news outlets. He is ranked 38 in the top 100 most
    public intellectuals, and was found to be the second most cited
    law professor in the country. Professor Turley earned his
    bachelor's degree from the University of Chicago, and his law
    degree from Northwestern University. Welcome, Professor.
        Mr. Turley. Thank you, sir.
        Mr. Marino. 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 as well as the University of Chicago. Professor Duffy also
    served as an attorney adviser in the Department of Justice's
    office of legal counsel and practiced law with the firm of
    Covington & Burling. Professor Duffy is widely published and
    the coauthor of the casebook on patent law. Professor Duffy
    earned his bachelor's degree in physics from Harvard
    University, and has a law degree from University of Chicago,
    where he served as article's editor of the law review.
        Professor Duffy clerked for Judge Steven Williams on the
    U.S. Court of Appeals for the D.C. Circuit, and for the late
    U.S. Supreme Court justice, Antonin Scalia.
        Mr. Shepherd is a professor at the Emory University School
    of Law. Prior to that, he served as a visiting professor of law
    at the University of Dresden in Germany and a lecturer for
    Kaplan Bar Review. Mr. Shepherd practiced commercial litigation
    and bankruptcy law at the firm of Howard Rice in San Francisco,
    California. Professor Shepherd's articles, working papers, and
    books have been featured in various national publications and
    leading law journals. He has appeared as an expert witness
    before various panels as well as the Senate Committee on the
    Judiciary. Professor Shepherd graduated Summa Cum Laude from
    Yale with a degree in economics. He holds a law degree from the
    Harvard Law School, and a Ph.D. in economics from Stanford
    University. Welcome, sir.
        Richard Pierce is the Lyle T. Alverson Professor of Law at
    George Washington University Law School. He has taught and
    researched in the fields of administrative law and regulatory
    practice for 38 years. Professor Pierce has taught at many law
    schools, including Columbia, SMU, the University of Kansas, the
    University of Virginia and the Pittsburgh School of Law.
    Professor Pierce has published widely on administrative law and
    regulatory policy. His books and articles have been cited in
    hundreds of agency and court opinions, including over a dozen
    opinions of the United States Supreme Court. He is a member of
    the administrative conference of the United States.
        Professor Pierce served our country in the U.S. Coast Guard
    in various capacities. He earned his bachelor's degree in
    economics from Lehigh University, he holds a law degree from
    the University of Virginia School of Law where he graduated
    Order of the Coif and served as managing editor of law review.
    Professor, welcome.
        Emily Hammond is the associate dean for Public Engagement
    and Professor of Law at the George Washington University law
    school. Professor Hammond previously taught at several
    universities, including Wake Forest, the University of Oklahoma
    College of Law, the University of Texas, Florida State
    University and the University of Georgia. Professor Hammond
    practiced law with Bondurant----
        Ms. Hammond. Bondurant, yes.
        Mr. Marino [continuing].--Mixson & Elmore in Atlanta,
    Georgia. As a former environmental engineer, her expertise
    included electricity markets, regulatory jurisdictions and the
    various responses of legal institutions to scientific
    uncertainty. Professor Hammond's articles have appeared in
    numerous top ranked journals and she is the coauthor of one of
    the Nation's leading energy law texts. She is an elected member
    of the American Law Institute, a chair elect of the Association
    of American Law Schools Administrative law section, and a
    member scholar of the Center for Progressive Reform. She has
    served as a hearing examiner for state administrative
    proceedings and has provided service to the International
    Atomic Energy Agency. Professor Hammond earned her bachelor's
    degree in economics from Virginia Tech and a JD from the
    University of Georgia. 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 Chinese
    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 case book 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 at Madison. He holds a law degree
    from the University of Chicago Law School, where he was elected
    Order of the Coif and served as an editor of the Law Review.
    Professor, welcome.
        We're going to begin with opening statement, Professor
    Turley, before we do, there are lights in front of you, and I'm
    sure that several of you know what those lights are for. I'm
    colorblind, so I don't know what colors they are. So I'd ask
    you to keep your statements 5 minutes or less. And if you start
    to go over 5 minutes, I will diplomatically raise this little
    thing and tap here to get your attention. So I thank you, and
    I'd like to start with Professor Turley.

       TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC
             INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY

        Mr. Turley. Thank you, Chairman Marino, Ranking Member
    Johnson, Ranking Committee Member Conyers, Members of the
    Subcommittee, it is a great honor to appear before you today to
    talk about the Chevron doctrine, its constitutional
    implications for our system. It is a particular pleasure to
    appear on this esteemed panel with these academics, including
    my colleagues from GW, Dick Pierce and Emily Hammond, and my
    former colleague from GW, John Duffy, who left us to join some
    nest of Jeffersonians south from here, but we appreciate you
    allowing him to come back to the big city on occasion.
        This is obviously a very important question for many of us.
    When look at it from different perspectives, I think what
    you're going to see today is sort of a microcosm of the field.
    How Chevron is viewed differs, whether you view it from a
    constitutional standpoint, or from an administrative law
    standpoint, or perhaps a hybrid of those two areas.
        From my perspective, Chevron is a deeply problematic
    subject. I'd like to say, as Woody Allen once said, that I wish
    I could leave you with a positive point, but ask if you'd
    accept two negative points instead. From a Madisonian
    standpoint, I'm afraid the best you can hope for is to get two
    negative points to make a positive, but it doesn't quite work.
    And I would like to explain why.
        I previously testified and written about what is called the
    Rise of the Fourth Branch, and how that has created an
    imbalance in our system, and, particularly, drained away some
    of the authority from Congress, which is so important to the
    balance of our three branches.
        To take a look at the administrative state as it is
    sometimes called, it is obvious that our system has changed.
    When this republic started, we only had about 1,000 people in
    non military positions. Obviously, it was quite small.
        In 2007, Congress enacted 138 public laws, in that same
    year Federal agencies enacted about 3,000 rules. To put it in a
    judicial standpoint, judges that year in a given year handled
    about 100,000 cases. Federal agencies have adjudicatory
    proceedings ranging around 1 million.
        The question then becomes is the dominant source of law
    making or law giving in the country? I think it is obvious that
    we have had a shift in gravity in our system toward this
    administrative state. The implications of that are worthy of
    discussion, they create new pathways and power centers in a
    system that wasn't designed for them.
        Now, my colleagues and I have different views of the
    implications of that. Chevron is one of those subjects that
    will deeply divide most academics, but, in my view, Chevron was
    solving a problem that didn't exist. It, on its face, sought to
    limit the role of judges, which is not a bad thing in terms of
    agency decisions. But it had sort of Trojan Horse aspects to
    it. It arrived in a benign form, and it became more aggressive
    and, indeed, menacing in time. Chevron allowed a very
    permissive standard for agencies. As allowed the administrative
    state to be insulated to a degree that I think is, in fact,
    dangerous.
        Now, before Chevron, we didn't have a period of utter
    confusion or tyranny under the Skidmore standard. Agencies were
    given ``respect'' and considerable weight in their
    interpretations; that's why some of us view it as solving
    problem that didn't really exist.
        And indeed, recently, the court has almost a buyer's
    remorse in how it has tried to limit Chevron. You've seen in
    the Christensen case, for example, this limitation of Chevron
    to a force of law cases. You've seen in other cases how the
    Court has tried to distinguish circumstances where Skidmore and
    Ellis would apply as opposed to Chevron analysis.
        But I think one the most problematic aspects of Chevron is
    seen in the City of Arlington case, where that deference was
    given to an agency in defining its own jurisdiction. In my
    testimony, I've recommended a series of possible approaches of
    Congress based on the delegation theory of Chevron that I
    recommended, and I'd be happy to talk about those to the
    Committee.
        And I will simply end by saying that I don't believe you
    need to treat Chevron as a fait accompli, or have a fatalistic
    view of Chevron. Chevron is not evil, it is not tyrannical, but
    that doesn't mean that it cannot be improved. And so I'm happy
    to answer your questions.
        [The prepared statement of Mr. Turley follows:]
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                                   __________

        Mr. Marino. Thank you. Professor Duffy.

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

        Mr. Duffy. Thank you, Chairman Marino, Ranking Member
    Johnson, and distinguished Members of the Subcommittee. Thank
    you for inviting me to testify before you today. At the outset,
    I'd like to compliment the Subcommittee for devoting time and
    attention to the Chevron doctrine. This single doctrine has
    enormous practical and theoretical importance in the courts.
    And yet, it remains deeply controversial and confusing.
        I believe that the Congress could write and enact
    clarifying legislation to supplant Chevron with more
    theoretically sound, and more easily understood principles.
        I want to begin with two significant missteps, made in the
    Chevron opinion itself. First, and most importantly, the
    Supreme Court decided for itself, based on its own assessments
    of good policy and institutional competence where the Court
    should defer to agency statutory interpretations. The Court
    assumed, at least implicitly that Congress did not have an
    opinion on the matter. That implicit assumption was wrong. If
    the Court considered statutory law, it would have found that
    the first sentence of 706 of the APA requires the reviewing
    court to decide all relevant questions of law. And it would
    have found that the text structure, legislative history and a
    consistent line of judicial precedence all supported reading
    that sentence as requiring de novo review of agency
    interpretations.
        Second, the Chevron court muddled the distinction between
    giving some weight to an agency's view as a part of the process
    of interpreting the statute, and recognizing the scope of an
    agency's delegated rulemaking or lawmaking powers.
        Traditionally, courts engaged in statutory interpretations
    would not afford an agency's view significant weight if the
    agency had flip-flopped on its interpretation. The intuition
    here is easy to understand, where an agency has held
    inconsistent views, the varying agency positions are simply
    unhelpful in determining a statute's meanings.
        By contrast, where an agency is wielding a delegated
    lawmaking power, courts fully expect administrative change.
    Indeed, the ability of an agency to change is part and parcel
    of a rulemaking power, which, as defined by the APA,
    encompasses not just the power to formulate rules, but also the
    power to amend and to repeal prior rules.
        Chevron blended these two concepts together. It treated the
    issue in the case as involving deference, but borrowed from the
    delegation theories the crucial point that agencies can change
    their positions with no penalty whatsoever. As shown in my
    written testimony, Chevron itself is an excellent demonstration
    of how agencies exercise their delegated rulemaking powers, and
    the government itself presented the case to the Supreme Court
    on a delegation theory. The courts articulation of the new
    theory of statutory interpretation was as unnecessary as it was
    unwarranted.
        Post Chevron cases, especially United States v. Mead and
    King v. Burwell, have begun to reinterpret Chevron as the
    doctrine about delegation rather than deference. Nevertheless,
    corrective legislation would still be desirable because the
    case law remains deeply confusing.
        I believe legislation should be drafted around four
    principles: First and foremost, that Congress should reassert,
    in the clearest possible terms, that reviewing courts are to
    decide all questions of law and decide those questions de novo,
    without any deference to the administrative agency's positions.
        Second, the legislation should recognize that where
    Congress has delegated lawmaking powers to an agency, reviewing
    courts should give proper scope to those powers, and allow the
    agency to write rules that are not arbitrary, capricious or
    contrary to law. This principle would count for the actual
    result in the Chevron case, but would make clear that the
    agency's power is grounded in the congressional delegation and
    not in deference.
        Third, the Congress might also consider recognizing the
    traditional view that some administrative issues are mixed
    questions of law, in fact, and the courts might properly give
    some deference to the agency's application of law to the facts
    of a particular case.
        Fourth and finally, Congress might also recognize the
    principle articulated by the Supreme Court in Skidmore v. Swift
    that in interpreting a statute de novo, courts may consider an
    agency's position as some evidence of a statute's meaning.
    Importantly, the agency would not have the power to control,
    but merely the power to persuade, a respect similar in kind to
    what might be afforded a prominent treatise, or nice law review
    article. Together, these principles reaffirm what Congress
    previously codified in section 706 of the APA, and restore the
    court's traditional role as articulated in Marbury v. Madison,
    to say with the law is.
        Thank you for your time and attention to these issues, and
    thank you, again, Mr. Chairman, for the invitation to speak.
        [The prepared statement of Mr. Duffy follows:]
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                                   __________
        Mr. Marino. Thank you.
        Dr. Shepherd, please accept my apology for not referring to
    you as Dr. Shepherd when I started reading your bio.

         TESTIMONY OF GEORGE SHEPHERD, PROFESSOR OF LAW, EMORY
                        UNIVERSITY SCHOOL OF LAW

        Mr. Shepherd. Thank you, Chairman Marino, Ranking Member
    Johnson, Ranking Committee Member Conyers, and distinguished
    Members of the Subcommittee, for the opportunity to testify
    today. Let me summarize my main point, and then explain it in
    detail.
        In the Chevron decision and cases following it, the courts
    have often given deference to legal interpretations. However,
    as Professor Duffy has noted, the Administrative Procedure Act
    said and still says the opposite. The APA explicitly says that
    there should be no deference on pure issues of law. And the
    APA's legislative history backs that up.
        Let me now discuss this in a bit more detail. The APA was a
    compromise between liberal New Dealers, including President
    Roosevelt, and conservative opponents of the New Deal. It is
    the bill of rights for the administrative state. It has
    remained in force with little change for 70 years.
        What does this founding document say about judicial review?
    The APA says that there should be no deference on issues of
    law. So here is the provision, the scope of review: The
    reviewing court shall decide all relevant questions of law and
    interpret constitutional and statutory provisions.
        The provisions of the APA don't say anything about giving
    any deference on questions of law. If the drafters had wanted
    to, they knew how to create deference. Indeed, other nearby
    parts of the APA said that there should be deference on issues
    of fact. And the provision of the APA really means what is it
    says. To see this, let's look at the legislative history.
        By the early 1940's, the Court had developed the following
    system: The Court said that there would be deference for agency
    decisions of fact, and for agency decisions of mixed fact and
    law. But there would be deference for decisions of law. At the
    time of the APA, everyone understood that the APA would codify
    and restate the Court's existing approach. This was shown by
    the understanding of three groups: first, participants in the
    legislative process; second, contemporary commentators; and
    finally, the courts.
        First, the participants in the legislative process said
    this. As the bill that became the APA worked its way through
    Committees, all the reports said just that. For example, the
    Senate Judiciary Committee said, [``The provision on Judicial
    Review] seeks merely to restate the several categories of
    questions of law for judicial review.''
        Likewise, in testimony in the House Judiciary Committee,
    the Attorney General said: ``This declares the existing law
    concerning the scope of judicial review.''
        The Senate and House reports indicated the following:
    ``This subsection provides that questions of law are for courts
    rather than agencies to decide in the last analysis.''
        The second group that said that the APA confirmed existing
    law was contemporary commentators. They said this in
    publications that appeared shortly after the APA became law in
    1946.
        For example, one commentator wrote in 1948 that ``[the
    provisions] `would appear to be quite simply a restatement of
    the present powers which reviewing courts possess, and
    frequently exercise, of reviewing relevant questions of
    constitutional and statutory law . . .' ''
        The third group that understood the APA to merely restate
    existing law was the courts.
        Mr. Marino. Doctor, could you please pull that microphone
    closer to you?
        Mr. Shepherd. Was the courts.
        Mr. Marino. It is still not working. Excuse me, a moment. I
    don't mean to interrupt.
        Mr. Shepherd. The button was not pushed.
        [Sound issue resolved.]
        Mr. Marino. All right. I hope I don't have to repeat my
    entire testimony.
        The third group that understood the APA to restate existing
    law was the courts. After the APA was adopted, the courts did
    just the same thing that they did before the APA. They gave
    deference on fact questions and mixed questions; but they gave
    no deference on issues of law. If the Supreme Court had
    understood the APA to change the scope of judicial review, then
    the APA's adoption would have caused the court to change its
    approach, but that did not happen.
        To sum up, the APA's provisions on judicial review are
    inconsistent with the Chevron doctrine. The Chevron doctrine
    requires courts to give deference to many agency decisions of
    law; the APA says the opposite. It explicitly requires courts
    to give no deference to agency's decisions of law. And the
    APA's legislative history confirms this.
        Suppose the people who were involved in the passage of the
    APA took a time machine to today. They would be shocked at the
    Chevron doctrine. Indeed, it is easy to understand why the
    Chevron doctrine appeared only 38 years after the APA's
    adoption and not sooner. For many years, memories of the APA's
    true meaning were fresh. Only when memories started to fade, or
    to die out, could the courts adopt an approach that ignored
    administrative law's fundamental statute.
        Thank you very much.
        [The prepared statement of Mr. Shepherd follows:]
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                                   __________
        Mr. Marino. Thank you, Professor Pierce.

    TESTIMONY OF RICHARD J. PIERCE, JR., LYLE T. ALVERSON PROFESSOR
          OF LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

        Mr. Pierce. Thank you, Chairman Marino, Ranking Member
    Johnson and distinguished Members of the Subcommittee, for
    providing me the opportunity to testify today. I just want to
    go through a couple of basics to start with. First, courts
    always have and always will, confer to some degree of deference
    on agencies when they act because of comparative institutional
    expertise. The agencies know more than the courts about the
    subject matter that they are addressing, and that's why,
    presumably, Congress gave them the power, and not the courts,
    the power to implement the statutes at issue.
        Second, courts always reject any agency action that is
    inconsistent with the statute, or if it is arbitrary and
    capricious. That's, again, something that's been around for a
    very long time and hasn't changed, didn't change with Chevron,
    hasn't changed today.
        And then, courts uphold agency actions in about two-thirds
    of the cases that come before them, no matter what doctrine
    they apply. There has been study after study of all of these
    doctrines, and what they show is, like, a 2 percent difference
    in rate of upholding. The doctrines are not very important.
    Now, when Chevron was first decided in 1984, I set forth, in a
    number of articles and books, my reasons why I thought it was
    sensible and consistent with both the administrative procedures
    and the Constitution.
        I also predicted that it would have a big effect. Well, I
    was totally wrong in my prediction, time has proven me wrong.
    Between 1984 and 2001, it had a fair amount of support in the
    circuit courts. Circuit courts rates of upholding agency action
    went up during that period of time. Since 2001, there's very
    little evidence that it's had any effect in the circuit courts.
    And there's never been any evidence that it has had any effect
    on the actual decisions of the Supreme Court, as opposed to the
    way that they phrased their decisions.
        Just to give you an example of the difference between the
    two. Justice Scalia was the strongest proponent of Chevron. He
    expressed that view in opinion after opinion, and in a famous
    law review article he wrote in Duke Law Journal. He also is the
    Justice who votes least frequently to uphold agency actions. By
    contrast, Justice Breyer has always been a strong critic of
    Chevron, and he's the Justice who votes most frequently to
    uphold agency actions.
        So, there really is no evidence today that Chevron is
    having any of the effects that some people attribute to it, and
    very little evidence that it ever had those effects in terms of
    actual Supreme Court opinions. The Supreme Court has the power
    to change its doctrine; it changes its doctrine all the time.
    It also has the discretion to apply its doctrines in different
    ways in different cases and to tailor the doctrines to the
    facts of the cases. And that's what they are doing. And the
    evidence is, as I indicated in an article that I included as an
    appendix to my testimony, that the degree of deference is going
    down. It has gone down over the last several years. So there's
    really no reason for concern at all. I can see absolutely no
    reason why you'd want to take legislative action in this area.
        Thank you.
        [The prepared statement of Mr. Pierce follows:]*
    ---------------------------------------------------------------------------
        *Note: Supplemental material submitted with this statement is not
    printed in this hearing record but is on file with the Subcommittee,
    and can also be accessed at:

          http://docs.house.gov/Committee/Calendar/
          ByEvent.aspx?EventID=104665
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                                     __________
        Mr. Marino. Thank you. Professor Hammond.

         TESTIMONY OF EMILY HAMMOND, ASSOCIATE DEAN FOR PUBLIC
    ENGAGEMENT & PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY
                               LAW SCHOOL

        Ms. Hammond. Thank you, Chairman Marino, Ranking Member
    Johnson, Ranking Committee Member Conyers, and distinguished
    Members of the Subcommittee, for the opportunity to testify
    today.
        We ask a great deal of courts when they review agencies:
    They police jurisdictional boundaries; they guard against
    serious errors; they incentivize agencies to engage in
    legitimizing behaviors, like promoting participation,
    deliberation and transparency. Now, these things could be
    achieved with de novo review, but there are important reasons
    for giving deference to the agencies. Agencies have experience
    with the statutes that they administer. Relative to the courts,
    agencies have superior expertise, particularly with respect to
    complex scientific and technical matters. And deference is an
    exercise in judicial self-restraint. By deferring to agencies'
    reasonable explanations, rather than substituting their own
    judgments, the unelected courts can avoid injecting their own
    policy preferences into judicial review. Judicial review
    attempts to balance all of these competing considerations.
        Now, the topic of this hearing is Chevron, but I want to
    emphasize the empirical research that suggests that the court
    applies Chevron to less than half of the agency interpretations
    that are Chevron-eligible. There is a whole spectrum of
    deference regimes that are tailored to the variety of agency
    actions as particular circumstance warrant. Those approaches
    should be viewed together as part of a system. Deference is
    also not a rubber stamp. Under hard look review, for example,
    agencies must provide reasoned explanations for their
    interpretive choices or policy discretion. In other words, they
    must earn their deference.
        By the way, this requirement of reason giving helps
    alleviate constitutional concerns about the administrative
    state. There are also times when deference is not warranted at
    all. For example, an agency cannot use a limiting
    interpretation to cure a statute that is defective on non
    delegation grounds. There are also a few very unusual cases in
    which the court has determined that Congress did not intend the
    relevant agency to exercise interpretive authority; FDA v.
    Brown & Williamson, and King v. Burwell are examples.
        Finally, I want to contextualize this system of deference
    with the matter of remedies in administrative law.
        The deference regimes work together with the remedies. For
    example, if courts find an agency action is unlawful, they also
    assess the particular circumstances to decide whether to remand
    with or without vacating the agency's action.
        The point here is, yes, the system is imperfect, but
    attempts to legislate a fix to a particular deference doctrine
    are not likely to be effective. The better approach is to craft
    agencies statutory mandates with particularity to either expand
    or cabin agency discretion in a first instance, as this
    institution sees fit.
        Thank you, again, for the opportunity to testify, and I
    look forward to your questions.
        [The prepared statement of Ms. Hammond follows:]
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                                   __________
        Mr. Marino. Thank you.
        Professor Beermann.

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

        Mr. Beermann. Thank you, Chairman Marino and Ranking Member
    Johnson, and the distinguished Members of the Committee. It's
    an honor to appear before you to testify about Chevron. I've
    been teaching and writing in the administrative law field for
    about 30 years now, and in particular, I have written a couple
    of articles that are highly critical of the Chevron doctrine
    for included in your materials for today's hearing.
        Now, I had--part of my opening remarks were going to be to
    repeat some of the criticisms you've heard of Chevron, but I
    apologize, Mr. Johnson, that I couldn't come up with a metaphor
    about chickens or foxes, but I think it would be beating a dead
    horse somewhat. So I'm going to refrain from using part of my
    time for that.
        And I want to say that one of the things that we've seen
    over the last couple of terms of the Supreme Court is some
    sense there that more of the Justices are starting to feel
    uncomfortable with the Chevron doctrine, but I really think
    it's overreading them to say that the Chevron doctrine is about
    to be thrown out. That's been going on since the beginning of
    the Chevron doctrine. There's always been this disagreement.
    More than once, Justice Scalia, may he rest in peace,
    complained that some decision had just eviscerated Chevron, but
    yet, Chevron limped along, sometimes resulting in extreme
    deference to agencies and always creating confusion and
    uncertainty.
        And I think that one of the effects we need to think about
    is the fact that it encourages agencies to be more adventurous
    in their statutory interpretations so that regardless of what
    the result is going to be at the Court, the agencies can feel
    they can go farther away from Congress' expressed intent when
    they are interpreting a statute.
        Now, substance aside, in my opinion, Chevron has failed as
    a matter of legal craft. In the sense that, remember, it's a
    decision procedure, a framework for decision. It's not a
    substantive rule itself. And, yet, there's so much uncertainty
    about how it applies that it's really failed as a decision
    procedure.
        There's a big issue about how it relates to the arbitrary
    capricious and abuse of discretion otherwise not in accordance
    with law standard that governs under the Administrative
    Procedure Act. Are Chevron decisions about policy or about
    statutory interpretation? There's one line of cases that says
    that Pierce questions of statutory interpretation are for the
    courts, which throws into doubt what Chevron is actually about.
    And I don't think anyone favors giving the sort of extreme
    deference outlines in Chevron step 2 to agency policy
    decisions. Rather, what we want is for a careful consideration
    of whether the agency examined the relevant factors, employed
    the correct legal standard, applied its expertise when making
    its decisions.
        And many of the decisions reviewed under Chevron turned out
    to be really policy decisions, not statutory interpretation
    decisions. So what I want to do now is look forward to the idea
    of a possible statutory reform, and I spelled this out in my
    complete testimony before you, a proposal that I think will
    reorient agent--judicial review of agency action toward the
    will of Congress.
        And the text, as I spelled it out, is 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. And the words
    ``due regard,'' they are not--obviously, they are not certain.
    There is some historical precedent for the use of those words
    in such a statute, and it would make clear to the reviewing
    courts that they have the primary responsibility for ensuring
    that agencies follow Congress' instruction, while acknowledging
    that there's room for deference when deference is warranted.
        So courts, under this standard, would apply the traditional
    Skidmore of consistency, deliberation, thoroughness, and
    persuasiveness, but they wouldn't be locked into these
    standards, because there may be other factors that may seem
    relevant in a particular circumstance, and the courts may feel
    free to do that. Of course, this would not come anywhere close
    to eliminating all uncertainty in judicial review. It wouldn't
    become mechanical by any means, but it would eliminate the epic
    battles we see today about whether and how Chevron applies, and
    it would head off the sort of extreme deference to agencies
    that, in my opinion, often thwarts serious examination of
    legislative intent.
        Now, one important point about this. Justice Scalia, in his
    defense of Chevron, was very concerned about flexibility. He
    viewed one of the virtues of Chevron that it preserved agency
    flexibility to change its views as conditions warranted.
        Now, in his opinion, once Skidmore deference would apply,
    this sort of deference, that the agency would be locked in to
    whatever the Court approved. And I don't think that's actually
    necessary. I don't think this is insurmountable. I think courts
    could--in my opinion, they could, consistent with the rule of
    law, allow for continued agency flexibility whenever an agency
    interpretation had been accepted under the new due-regards
    standards, as long as it's clear that the decision was made
    with substantial deference to the agency.
        Now, a bigger question has been raised by some of my
    copanelists is whether this would actually make a difference.
    As I point out in the articles included with this testimony, at
    least at the Supreme Court, the cases seem to be more decided
    along the ideological dividing lines that we are all familiar
    with at the Court rather than on differing views of deference.
        Now, that may be true, but I think it would be less so if
    the governing standard of review nudged the courts more toward
    careful consideration of legislative intent. Chevron is a
    distraction from what should be the two key issues in judicial
    review: congressional intent and sensible policy. And some sort
    of reform, whether my proposal or something else, ought to
    reorient the law in that direction.
        Thank you.
        [The prepared statement of Mr. Beermann follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________
        Mr. Marino. Thank you, Professor.
        Each of the witness' written statements will be entered
    into the record in its entirety. We will now move to the
    Congressmen and women's 5 minutes of questioning, and I will
    begin by recognizing myself.
        Professor Turley, in Federalist 51, James Madison wrote
    that the Constitution's separation of powers was structured to
    make ``ambition counteract the ambition,'' between Congress,
    the Executive, and the Judiciary in order to preserve liberty.
    How does the Chevron doctrine alter the incentives of the three
    Federal branches to undermine the checks-and-balances system?
        Mr. Turley. I think it's a critical component in terms of
    the rise of this administrative state. And I do think that we
    have to be honest that the creation of this effective fourth
    branch was not part of the original design. It creates new
    pathways, new centers, within the system. And we have to be at
    least concerned about how, for example, administrative courts
    have become the dominant forms of adjudications in our system.
    It wasn't designed for that. And, yet, when citizens go to
    those courts, they find they have fewer rights. They find a
    system that many view is fairly heavily weighted toward
    agencies.
        And, so, I think if you look at Chevron in that context,
    you see that it's actually undermining both legislative and
    judicial functions within the system. And where I disagree with
    my esteemed colleagues, is, I don't see any cognizable
    principle at all coming recently out of the Chevron cases. The
    courts seem to be--to think that putting additional layers of
    ambiguity onto Chevron will create clarity, and it hasn't. In
    the last case of King v. Burwell, when we are looking at,
    what's the dividing line? What's the role of courts? The Court
    says, well, this is a question of deep economic and political
    significance, and seems to avoid the Chevron analysis. That's
    no better than Chevron, itself. We have this confusion in this
    area that is very, very dangerous in terms of legislative
    authority, in terms of judicial authority.
        Mr. Marino. Thank you.
        Professor Shepherd, Dr. Shepherd, one of the great oddities
    in modern jurisprudence is that the courts have never really
    explained how Chevron deference is consistent with the APA,
    which prescribes a standard of judicial review that seems to
    preclude deference to agencies' interpretations of the
    statutes, but honors still--your written testimony suggests
    that the legislative history of the APA demonstrates that
    Congress, in 1946, actually refused to adopt a deferential
    standard of review similar to Chevron's. Can you explain that
    in more detail, please?
        Mr. Shepherd. Yes. What is referred to in my written
    testimony, the majority--there was an attorney general's
    committee on administrative law that produced two reports: One
    was the majority report, which was more in tune with the New
    Deal liberals; and the minority report, which was more
    conservative. The majority report proposed an approach like
    Chevron. It suggested that that might be a good idea. It was
    proposing that to the courts. However, the statute that
    eventually became law, the APA, did not include that proposal.
    So that was rejected. The APA was the compromise, and the
    compromise that ended up had some things for conservatives, and
    some things for liberals, and the compromise did not include
    that Chevron approach.
        Now, the question of how did Chevron possibly occur given
    that the APA is very clear that there should be no deference on
    the issues of law? Time passes. I don't know. It's a puzzle.
        Mr. Marino. Thank you.
        Professor Duffy, how can it be that in all these years
    since Chevron, the courts have never grappled with this
    legislative history of the APA that shows how Chevron is flatly
    inconsistent with the specific legislative compromise reached
    in the APA?
        Mr. Duffy. Well, I agree that it is a mystery. Indeed, I
    think that my colleague, Professor Hammond, said that this
    doctrine of Chevron is a model of judicial self-restraint. And,
    really, I think it's quite the opposite. Because there was a
    specific statute that governs judicial review. And not only did
    the Court go against that, go against the history, but it
    didn't even attempt to read the statute. It didn't even engage
    in the statute, and it still hasn't engaged in the statute.
    Indeed, some of the oddities is that Justice Scalia, at times,
    even in his writing, and recently in a judicial opinion,
    recognized that the Chevron doctrine seem to be completely
    inconsistent with the APA. So it is a mystery.
        Now, I think that creates the confusion, too, that you've
    got one set of principles, like Chevron with its two steps, and
    then you've got the APA, and that those two things keep passing
    in the night. So I think that is unfortunate.
        Mr. Marino. Thank you. My time has expired.
        And the Chair now recognizes the gentleman from Georgia,
    Congressman Johnson.
        Mr. Johnson. Thank you.
        On occasion, Congress passes broad and open-ended laws
    leaving it to Federal agencies to fill the gaps of delegated
    authority through regulation. This has been the case since the
    times, 1790's that you cited, Professor Turley.
        Do you believe that the level of public safety regulation
    in 1790 is appropriate--is an appropriate benchmark to compare
    today's administrative process to?
        Mr. Turley. That's a valid point. There's no question that
    the Federal Government has changed, and this is a new reality.
    I don't believe that that warrants the type of change that has
    been brought forth in Chevron. In fact, back in that day, the
    Framers were concerned with what was called the royal
    prerogative that James I, talked about, where he said that,
    really, passing legislation is just the beginning of the
    process, and that he uses his own logic to improve it. And the
    Framers rejected that. And I think Chevron creates a sort of an
    agency prerogative, where agencies treat legislation as just
    the start of the legislative process. I think that's dangerous
    for legislative authority.
        Mr. Johnson. Well, do you think that the legislature, then,
    should draft more specific legislation? Is that the solution
    rather than judicial scrutiny? Can we apportion some of the
    blame that we are assessing to the judicial branch through the
    legislative branch in terms of its inability to formulate a
    strict, all-encompassing, legislation that needs no rulemaking?
        Mr. Turley. I think that's a very valid point, again. But I
    do want to differ in one sense.
        Mr. Johnson. Is it practical? Is that practical, though----
        Mr. Turley. I believe it is practical in the sense that----
        Mr. Johnson [continuing]. In this Congress?
        Mr. Turley.--I think obviously agencies are going to have
    interpretive roles. There's application to laws that are going
    to deal with questions that this body cannot answer. What I
    think is dangerous about Chevron is the assumption that there's
    an applied delegation of Congress to have agencies perform this
    legislative role. That's what I reject. I think that's a very
    dangerous presumption to make, because it robs this institution
    of a very important role. Congress is so vital to that
    tripartite system, because it's in this body where factional
    disputes results in majoritarian compromise, at least ideally
    they do. But this is where that magic is supposed to happen. If
    you shift the center of gravity over to agencies performing a
    legislative role away from you, that doesn't have the same
    impact politically the Framers wanted.
        Mr. Johnson. Okay. Thank you.
        Professor Hammond, what is your response to Professor
    Turley's remarks?
        Ms. Hammond. Well, first of all, I'd like to say about this
    idea of implicit delegation of interpretive authority, the
    courts themselves recognize that that is a fiction. The courts
    have adjusted the deference doctrines and the standard of
    review to the fact of broad delegations of authority. So, for
    example, while the nondelegation doctrine is a very easy test
    to pass, agencies are required to provide reasons for what they
    do. There is no presumption of regularity in the same way that
    a court reviewing a legislative enactment would provide. And so
    when courts are reviewing agencies, by asking the agencies to
    explain themselves, not rubber stamping what they do, courts
    are actually fulfilling a constitutional role themselves, and
    policing the boundaries of what agencies are doing.
        Mr. Johnson. Thank you.
        Professor Beermann, as a general matter, do you endorse
    enhanced judicial review when it comes to deregulatory actions?
        Mr. Beermann. Well, you see, that's a great----
        Mr. Johnson. Yes or no?
        Mr. Beermann. Yes. And I think that raises a great point
    about the origins of Chevron, because Chevron was a decision in
    a period of deregulatory government action. And it was
    originally the proponents of Chevron were the people favoring
    less regulation, and the opponents of Chevron where people were
    saying bring more regulation. It was viewed that what was going
    to happen under Chevron was it was going to let the agencies
    get away with more deregulation, contrary to what Congress had
    said in the statutes. And I think that's an important point. To
    me, I am just completely neutral on what the substance of the
    Congress' output is. To me, the appropriate focus for judicial
    review should be on what Congress wanted the agency to do. And
    I think, too often, the Chevron doctrine allows for the courts
    to ignore what Congress wanted the agencies to do, regardless
    of whether it's regulatory or deregulatory.
        Mr. Johnson. All right. My time is up. Thank you.
        I yield back.
        Mr. Marino. The Chair now recognizes the gentleman from
    California, Congressman Issa.
        Mr. Issa. Thank you. Thank you, Mr. Chairman.
        Professor Turley, good to see you again.
        Mr. Turley. Thank you, sir.
        Mr. Issa. I'm going to address this to you, and as we go up
    and down the dais, I have no doubt that many of the questions
    will be similar to this. But earlier today, we had a lengthy
    hearing in which DACA executive action that has not been
    stopped, but clearly, is not a court decision, and the
    Affordable Care Act, where there's been multiple decisions, so
    I'm going to focus on the Affordable Care Act for this
    afternoon.
        In that hearing, we seem to hear, essentially, we commend
    the court led by Chief Justice Roberts, in ignoring a few words
    in the Act and looking at the meaning. And to a certain extent,
    that's what we're talking about this afternoon, that Chevron
    is, in fact, ignore the words, focus on the meaning. Would you
    say that's a fair recognition of what, if you will, the
    doctrine asks the Court to do, or the Court, under that
    doctrine, asks itself to do?
        Mr. Turley. Well, I would certainly agree to the extent
    that I believe that Chevron gives license for analysis that
    ignores the text. In fact, Chevron itself ignores the text of
    the APA, which is section 706. This body actually did a good
    job in saying, this is the function of the Court. If you read
    section 706, it makes abundant sense, and the Court simply
    ignored that language, and I think it's----
        Mr. Issa. And that's where my question leads. Thank you,
    Professor. You've done it again. You've anticipated.
        In this body, in future legislation, limiting the Court by
    deciding that what is in a particular law is all that there is,
    would use similar language to the Affordable Care Act. We would
    say, you know, if there's any ambiguity, come back to us, no
    extension beyond explicitly those granted shall be there.
        The words would probably not be as simplistic and profound
    as the Constitution, where we've been arguing over what the
    State has and what the Federal Government has for years, but it
    would be similar. You know, Federal Government only gets such
    powers as are explicitly given to it, all the rest belongs to
    the States or the people.
        If we cannot use the language of the Affordable Care Act to
    make it clear that we don't want limitations, unless, of
    course, we want them, which is what had happened in the first
    Affordable Care Act portion, how do we structure language as
    the body, the only body that can make law? How do we structure
    language to limit the excesses, erroneous conduct, or outright
    deliberative abuse of laws that allow for a regulatory
    creation?
        Mr. Turley. It's an excellent question. What I suggest in
    my testimony is that we may want to consider, both in terms of
    amending the APA to deal with the issuance of judicial review,
    but also the inclusion of what would effectively be a Chevron
    provision in laws that make it clear that this body is not
    delegating authority over issues like legal interpretation,
    certainly, not when it comes----
        Mr. Issa. But isn't that what was in the Affordable Care
    Act, that, in fact, the Court ignored by finding ambiguity and,
    thus, you know, applying the meaning? I mean, by the way, I'm
    one of those people that understands that the Republicans who
    voted against it knew what they didn't want, and the Democrats
    wanted the government to pay for it, make happen, and so on. I
    mean, I think Chief Justice Roberts, in a sense, hit one thing
    right in that case. He did order a solution that allowed the
    people who voted for that Act to get what they wanted, not what
    they wrote, but what they wanted.
        So I sort of reiterate, if it didn't work there, what
    language would you say would be unambiguous enough to keep
    lifetime appointments from saying, we see it, but we don't read
    it. And I'll follow up, because my time is running out. But the
    second half of the question is, wouldn't the alternative of
    expressly having all regulations expire, not just all law, but
    all regulations expire within a period of time; in other words,
    can't we make an act and all future acts that say, you know,
    you may produce regulations, but those regulations have to be
    codified, otherwise, they're only good for the 5 years, or
    until the reauthorization of the act? Isn't, ultimately, a time
    limit on regulations a better solution than, in fact, trying to
    say, you won't go there when, in fact, there's a record that
    going there doesn't have a penalty sometimes?
        Mr. Turley. Well, I clearly disagree with aspects of the
    ACA ruling by the Supreme Court. We agree on that. I do think
    that you have the authority to do precisely that. I also
    thought that you have authority under congressional approval
    statute along the lines of the REINS Act. All of that, I think,
    is within the power of Congress.
        I think what they have to do is, this body has to be
    aggressive in trying to get back this authority. The Court has
    made a colossal mess of this area, particularly on Chevron. I
    don't know anyone that would think that Chevron, at this point,
    that we have an absolute certainty on this--behind this table
    of what Chevron even means anymore, except that it insulates
    agencies from effective review.
        Mr. Issa. Mr. Chairman, thank you very much. I appreciate--
    I would have liked to have heard from all the witnesses, but I
    understand the limited time, and I yield back.
        Mr. Marino. The Chair now recognizes the gentlelady from
    Washington, Congresswoman DelBene.
        Ms. DelBene. Thank you Mr. Chair, and thanks to all of you
    for being here today.
        Professor Hammond, I wanted to ask if you are familiar with
    the U.S. Department of Education's gainful employment rule?
        Ms. Hammond. I'm not.
        Ms. DelBene. So the gainful employment rule is an attempt
    to--has been attempted to find gainful employment so that
    taxpayer-funded financial aid for career education programs is
    actually going to students who are really being trained for
    real careers, and attempt to deal with some of the challenges
    that they've seen, especially with for-profit colleges. I bring
    that up, because when the Department of Education first put the
    rule in place, it was challenged and struck down. But in that
    case, the judge did uphold the Department of Education's
    authority to issue regulations enforcing the gainful employment
    requirement in the relevant statute.
        The judge commented that, ``The Department had gone looking
    for rats in rat holes as the statute empowers it to do.'' The
    Department of Education went back to the drawing board, and
    after notice and comment, put forward a revised rule, and that
    rule was upheld in court just last week. Now, it seems--it
    seems that this is a pretty good example of the process working
    well, where a problem impacting families was identified, the
    relevant agency acted within the authority that Congress
    granted it, and through a transparent and accountable process,
    a solution was formed. So I wondered if you think that we put--
    do we put this process at stake if we start tinkering with the
    current legal framework by putting together piecemeal
    legislation?
        Ms. Hammond. Yes. That's a great question. And I have
    published an article in the Columbia Law Review on this issue
    of what I call serial litigation. So an agency's action is
    challenged; it's remanded; the agency then corrects itself; the
    action is challenged again. And courts very often do reward
    agencies the second time for paying attention.
        Our current deference regimes enable this kind of dialogue.
    When courts explain in a first instance what the agency has
    done wrong, but remands to the agency for a chance to fix it,
    this furthers the responsiveness of our administrative state.
    It's acting within the bounds that the courts have reiterated,
    and then when it does that, when an agency does that, deference
    the next time around is appropriate.
        Ms. DelBene. So do you think that it's possible that
    legislation could actually create new or, you know, worse, in
    some cases, legal uncertainties in cases where the agency
    rulemaking actually seeks to, and clarify in this case, an
    ambiguous part of the law that Congress chose not to define?
        Ms. Hammond. Yes. If we ask courts to review de novo, we
    lose that ability to really bring in the expertise of the
    agencies and the responsiveness in a dialogic kind of way
    with--between the agencies and the courts.
        Ms. DelBene. And in--so if we, in Congress, want to be
    crystal clear and preempt agency rulemaking on a particular
    point in legislation, obviously, we can do that through careful
    and considered drafting ourselves? Isn't that correct?
        Ms. Hammond. That's right.
        Ms. DelBene. Professor Pierce, I wondered if you had a
    comment on this, on the rulemaking example I brought up, and
    also on whether you think legislation can be helpful or would
    create more uncertainty?
        Mr. Pierce. I actually think, over time, it would have no
    effect at all. And this goes back to where I was totally wrong
    on Chevron. I looked at Chevron and said, I thought it made
    sense. Maybe I'm right, maybe I'm wrong. I wrote a bunch of
    books and articles about how good it was and then about how
    much is changing. It hasn't. And I don't think--change isn't
    tinkering in language. You know, they're always going to be
    deferring. They have to defer. They don't know much about
    nuclear energy. They don't know much about water pollution.
    Agencies know much more about it. So there's always going to be
    a degree of deference, and there's always going to be, on the
    other side of it, a tendency to check to make sure they only do
    things that they can explain pretty well, and that they only do
    things that are within statutory boundaries. And that's the
    nature of the beast. And you could describe it 100 different
    ways, and it's not going to change what the courts actually do.
        I will--I have to say that one of the problems--going back
    to an earlier exchange, one of the problems, there are horribly
    drafted bills.
        The Chief Justice added a paragraph in his opinion in King
    v. Burwell, in which he alluded to the process through which
    that legislation became law. And it was a process that led to a
    mess that where it's very difficult to reconcile the purposes
    of one part with the language of another part. And the clean
    air--power plant has a bigger problem that in 1990, the House
    put one provision in section 111, and the Senate put another
    provision. They are totally inconsistent, and then both were
    enacted.
        Ms. DelBene. My time has expired.
        Mr. Pierce. So the courts have to decide which of the
    things that the Congress said to take seriously, because one
    says yes, and the other says no.
        Ms. DelBene. Thank you.
        I yield back, Mr. Chair.
        Mr. Marino. The votes have been called. We are going to try
    to get the other two gentlemen in before, because I don't want
    you to have to wait here for a half hour or so.
        The Chair recognizes the gentleman from Texas, Mr.
    Ratcliffe.
        Mr. Ratcliffe. Thank you, Mr. Chairman.
        So I've only been in Congress for the last 15 months, but
    in that period of time, I've already been able to have hundreds
    of conversations with small business owners and farmers and
    community bankers, independent insurance agents across the
    rural Northeast Texas district that I represent that all those
    conversations end in frustration over the endless burden of
    regulatory agencies and rules. Sometimes it relates to
    ObamaCare; sometimes it relates to the EPA regulating puddles
    in people's backyards, or trying to tell my constituents what
    kind of light bulbs they have to buy, and this frustration is
    really heightened, because when I came into Congress, I came in
    as part of a historic majority here in the House, and as part
    of the Congress where we took over the Senate as well, and I
    think my constituents expected things to change, hoped that
    Republicans would put a stop to a run-away administrative state
    in this country. But admittedly, very little has changed. And
    we can talk about executive overreach, but I'm willing to admit
    and acknowledge that part of the problem here is legislative
    underreach, and with respect to the Chevron doctrine and other
    things.
        So I'm certainly grateful that we're having this hearing
    today. We have an opportunity to talk about the possibility of
    solutions to this pervasive problem, and so I want to start
    with you, Professor Turley, because in your written testimony
    you said that--and I'll quote you here, ``Fear that the growth
    of Federal agencies is reaching a critical mass within our
    system, a point where rapid exponential and irreversible
    expansion will occur.''
        So, in your opinion, first, let me ask you, what are the
    greatest drivers of this agency expansion? And where does
    Chevron fall on that list?
        Mr. Turley. Well, thank you very much for that question. I
    think that the danger itself is existential for the system. I
    happen to agree with many things that agencies do. But for us
    to pretend this isn't a new system with new dimensions of power
    and pathways is to ignore reality. Part of the frustration that
    your citizens have is they sense correctly that the center of
    gravity of the government has shifted away from them, that they
    are more the subject of government power than the source of
    government power. And I do think that that's a legitimate
    concern, and I think Chevron is part of it. If you want to deal
    with the independence of agencies, you have to deal with the
    insulation of agency decisions that is exposed to Chevron. But
    Chevron also captures this idea that the administrative state
    is a new reality. When we hear some of my colleagues talk, and
    they say, well, we have to assist the administrative state. And
    that's exactly what it is. It's becoming a state with
    legislative and judicial and executive powers combined. And I
    think that would horrify the Framers.
        Mr. Ratcliffe. So I'm going to ask you to speculate here.
    Let's say that Congress were to pass legislation overturning--
    essentially, overturning Chevron and a President, not
    necessarily this President, were to sign that into law, in your
    estimation, how far would that go in addressing this vast
    agency expansion that we're talking about?
        Mr. Turley. Well, it would not take--it would not dismantle
    the administrative state. And I think we all have to accept
    that there's going to be a role of the Federal agencies. This
    is part of this large government that we have. But it's a very
    important first step. I think the court should look at things
    like the REINS Act and other ways to force agency decisions to
    come back before Congress. But the most important thing about
    attacking Chevron is to tell courts that you are wrong. You
    can't just imply that we are delegating legislative authority
    to the agencies every time you have ambiguity, even on legal
    questions. And you certainly can't do that on a question of
    jurisdiction. That's why the City of Arlington case really is
    so chilling for me, is that we always assume that would be the
    rubicon, at least agencies wouldn't get deference on defining
    their own jurisdiction. And I think Congress needs to attack
    that very aggressively.
        Mr. Ratcliffe. Thank you.
        Professor Shepherd, I want to give you an opportunity to
    talk about an issue that I noticed from your testimony. One of
    the oddities here in modern jurisprudence is the fact that
    courts have never really explained why the Chevron deference is
    consistent with the APA, which prescribes a standard of
    judicial review that seems to preclude deference to agency
    interpretation of statutes. Your written testimony suggests
    that the legislative history of the APA demonstrates that
    Congress, in fact, actually refused to adopt the deferential
    standard of review similar to Chevron. And I want to give you
    an opportunity to explain that.
        Mr. Shepherd. I've already mentioned that briefly, that
    that's exactly what happened. There was a proposal to--from an
    attorney general's committee to allow Chevron-style deference,
    and that proposal did not find its way into the ultimate
    compromise.
        Mr. Ratcliffe. Well, thank you.
        My time has expired. I did want to--Professor Duffy, I
    appreciate your comments regarding a de novo standard, and I
    will tell you that I agree with you.
        And I'll yield back.
        Mr. Marino. Thank you.
        The Chair now recognizes the gentleman from New York,
    Congressman Jeffries.
        Mr. Jeffries. I thank the Chair, and I thank the witnesses
    for what has been a very thoughtful discussion.
        Professor Turley, is it my understanding that one of your
    concerns with the Chevron doctrine is that the Court seems to
    be coming to the conclusion that the ambiguity in the statute
    effectively means that Congress is delegating authority to the
    administrative agencies? Is that right?
        Mr. Turley. Well, there's an assumption of implied
    delegation that underlies many of these cases that I think is
    misplaced. It gives agencies, in my view, far much--too much
    insulation from review under the Chevron doctrine.
        Mr. Jeffries. And would you agree there's been an active
    discussion around the rise of the regulatory state that perhaps
    even dates back to Justice Scalia's days as a university
    professor connected to an article that he wrote, I think it was
    in 1981?
        Mr. Turley. Yes. Yes, I think so.
        Mr. Jeffries. And so that, essentially, means that for at
    least 35-plus years, there's been this concern that an
    administrative state, a fourth branch of government, has
    arisen, and the linchpin for it is the ambiguity that continues
    to exist coming out of bills passed by this House and that
    Senate, correct?
        Mr. Turley. Yes. I would qualify it in this one respect.
    Because I do agree with an earlier statement made that there
    are statutes that have gone to the courts that I don't consider
    to be ambiguous, that the interpretation has been yielded to
    Federal agencies, in my view, improperly by the courts. And I
    think that undermines both the judicial branch and the
    legislative branch.
        Mr. Jeffries. But would you agree that it certainly is the
    case in many instances, statutes that are being passed by this
    Congress remain broadly vague in ways that allow for, perhaps,
    judicial overreach?
        Mr. Turley. Oh, I think that's certainly the case in many
    statutes.
        Mr. Jeffries. And so at a certain point, don't you think
    it's reasonable for the courts to assume not just that there's
    implied delegation, but that the absence of a mechanical
    precise focus by this Congress over decades, notwithstanding
    the active debate and the view by many that there's been
    judicial overreach, to continue to send out statutes that are
    vague? At a certain point, it does seem to me, perhaps, that
    some could reasonably conclude that Congress is implying, we
    don't have the expertise; we don't have the time; we don't have
    the tolerance to enact these statutes in a more precise
    fashion?
        Mr. Turley. I think that's an excellent point. I would
    qualify it in two respects where we may disagree. One is that
    part of the problem of the Chevron doctrine is that the Court
    is putting these layers of ambiguity on Chevron to the point
    that you have the deference, but the rationales change. And I
    think that's dangerous.
        Second, I don't think Congress does imply delegation for
    legislative actions. I think that there are lots of reasons why
    there's ambiguities, but nobody here is suggesting that
    agencies shouldn't interpret. No one is suggesting that they
    shouldn't get a--that the Court should not defer to some
    extent. The question is the extent. And it certainly should not
    extend to legal reasoning or jurisdictional questions, some of
    the reach we've seen with Chevron. But agencies are going to be
    given a certain amount of weight. That was what happened under
    Skidmore. Chevron solved a problem that didn't exist in my
    view, and it's made it a lot worse.
        Mr. Jeffries. Now, you, in terms of, sort of, the original
    intentions of the Founders and thinking about, sort of, how
    Congress was constructed and the notion that every Member of
    Congress would be a generalist, and then there would be a
    subset of specialists who would work through the Committee
    process. Is that a reasonable definition of how Congress, at
    least, has evolved and been thought of in terms of the Framers'
    intentions?
        Mr. Turley. Well, I think you're right about being
    generalists, but I would caution that the Framers believed that
    the structure of the system would actually help direct
    compromise, would help diffuse divisions by reaching
    majoritarian compromise. What has happened is that we've
    created this whole new bureaucracy of the administrative state
    which is answering those questions that are supposed to be
    answered here. Whether it's convenient or not, I think it has
    pretty dire consequences for our political system.
        Mr. Jeffries. Thank you for that. And I would say that I do
    think Professor Pierce's observation about the expertise
    necessary in an increasingly complex society that it's
    possessed, in some regard--and, certainly, I have great respect
    for Chairman Marino and others on this panel, got certain
    subset of expertise, particularly in law enforcement, but that
    in some of these other areas, whether it involves the energy
    sector, food, safety, toxic water, that there is a degree of
    administrative expertise that exists most specifically at these
    agencies, and that in some sense, it is reasonable for there to
    be some understanding of deference given to them.
        And I thank you, all, for your thoughts.
        And I yield back.
        Mr. Turley. Thank you.
        Mr. Marino. Thank you.
        This concludes today's hearing. And thanks to all our
    witnesses for attending.
        Without objection, all Members will have at least 5
    legislative days to submit additional written questions for the
    witnesses or additional materials for the record.
        This hearing is adjourned, and we have to run to vote.
        [Whereupon, at 3:49 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Response to Questions for the Record from Richard J. Pierce, Jr., Lyle
      T. Alverson Professor of Law, The George Washington University Law
                                     School
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Response to Questions for the Record from Emily Hammond, Associate Dean
        for Public Engagement & Professor of Law, The George Washington
                             University Law School
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     [all]