[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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                       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:]

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                               __________
    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]