[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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
___________
U.S. GOVERNMENT PUBLISHING OFFICE
99-454 PDF WASHINGTON : 2016
_________________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Marino. Thank you.
Professor Beermann.
TESTIMONY OF JACK M. BEERMANN, PROFESSOR OF LAW AND HARRY
ELWOOD WARREN SCHOLAR, BOSTON UNIVERSITY SCHOOL OF LAW
Mr. Beermann. Thank you, Chairman Marino and Ranking Member
Johnson, and the distinguished Members of the Committee. It's
an honor to appear before you to testify about Chevron. I've
been teaching and writing in the administrative law field for
about 30 years now, and in particular, I have written a couple
of articles that are highly critical of the Chevron doctrine
for included in your materials for today's hearing.
Now, I had--part of my opening remarks were going to be to
repeat some of the criticisms you've heard of Chevron, but I
apologize, Mr. Johnson, that I couldn't come up with a metaphor
about chickens or foxes, but I think it would be beating a dead
horse somewhat. So I'm going to refrain from using part of my
time for that.
And I want to say that one of the things that we've seen
over the last couple of terms of the Supreme Court is some
sense there that more of the Justices are starting to feel
uncomfortable with the Chevron doctrine, but I really think
it's overreading them to say that the Chevron doctrine is about
to be thrown out. That's been going on since the beginning of
the Chevron doctrine. There's always been this disagreement.
More than once, Justice Scalia, may he rest in peace,
complained that some decision had just eviscerated Chevron, but
yet, Chevron limped along, sometimes resulting in extreme
deference to agencies and always creating confusion and
uncertainty.
And I think that one of the effects we need to think about
is the fact that it encourages agencies to be more adventurous
in their statutory interpretations so that regardless of what
the result is going to be at the Court, the agencies can feel
they can go farther away from Congress' expressed intent when
they are interpreting a statute.
Now, substance aside, in my opinion, Chevron has failed as
a matter of legal craft. In the sense that, remember, it's a
decision procedure, a framework for decision. It's not a
substantive rule itself. And, yet, there's so much uncertainty
about how it applies that it's really failed as a decision
procedure.
There's a big issue about how it relates to the arbitrary
capricious and abuse of discretion otherwise not in accordance
with law standard that governs under the Administrative
Procedure Act. Are Chevron decisions about policy or about
statutory interpretation? There's one line of cases that says
that Pierce questions of statutory interpretation are for the
courts, which throws into doubt what Chevron is actually about.
And I don't think anyone favors giving the sort of extreme
deference outlines in Chevron step 2 to agency policy
decisions. Rather, what we want is for a careful consideration
of whether the agency examined the relevant factors, employed
the correct legal standard, applied its expertise when making
its decisions.
And many of the decisions reviewed under Chevron turned out
to be really policy decisions, not statutory interpretation
decisions. So what I want to do now is look forward to the idea
of a possible statutory reform, and I spelled this out in my
complete testimony before you, a proposal that I think will
reorient agent--judicial review of agency action toward the
will of Congress.
And the text, as I spelled it out, is as follows: Unless
expressly required otherwise by statute, the reviewing court
shall decide all questions of law de novo with due regard for
the views of the agency administering the statute and any other
agency involved in the decision-making process. And the words
``due regard,'' they are not--obviously, they are not certain.
There is some historical precedent for the use of those words
in such a statute, and it would make clear to the reviewing
courts that they have the primary responsibility for ensuring
that agencies follow Congress' instruction, while acknowledging
that there's room for deference when deference is warranted.
So courts, under this standard, would apply the traditional
Skidmore of consistency, deliberation, thoroughness, and
persuasiveness, but they wouldn't be locked into these
standards, because there may be other factors that may seem
relevant in a particular circumstance, and the courts may feel
free to do that. Of course, this would not come anywhere close
to eliminating all uncertainty in judicial review. It wouldn't
become mechanical by any means, but it would eliminate the epic
battles we see today about whether and how Chevron applies, and
it would head off the sort of extreme deference to agencies
that, in my opinion, often thwarts serious examination of
legislative intent.
Now, one important point about this. Justice Scalia, in his
defense of Chevron, was very concerned about flexibility. He
viewed one of the virtues of Chevron that it preserved agency
flexibility to change its views as conditions warranted.
Now, in his opinion, once Skidmore deference would apply,
this sort of deference, that the agency would be locked in to
whatever the Court approved. And I don't think that's actually
necessary. I don't think this is insurmountable. I think courts
could--in my opinion, they could, consistent with the rule of
law, allow for continued agency flexibility whenever an agency
interpretation had been accepted under the new due-regards
standards, as long as it's clear that the decision was made
with substantial deference to the agency.
Now, a bigger question has been raised by some of my
copanelists is whether this would actually make a difference.
As I point out in the articles included with this testimony, at
least at the Supreme Court, the cases seem to be more decided
along the ideological dividing lines that we are all familiar
with at the Court rather than on differing views of deference.
Now, that may be true, but I think it would be less so if
the governing standard of review nudged the courts more toward
careful consideration of legislative intent. Chevron is a
distraction from what should be the two key issues in judicial
review: congressional intent and sensible policy. And some sort
of reform, whether my proposal or something else, ought to
reorient the law in that direction.
Thank you.
[The prepared statement of Mr. Beermann follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Marino. Thank you, Professor.
Each of the witness' written statements will be entered
into the record in its entirety. We will now move to the
Congressmen and women's 5 minutes of questioning, and I will
begin by recognizing myself.
Professor Turley, in Federalist 51, James Madison wrote
that the Constitution's separation of powers was structured to
make ``ambition counteract the ambition,'' between Congress,
the Executive, and the Judiciary in order to preserve liberty.
How does the Chevron doctrine alter the incentives of the three
Federal branches to undermine the checks-and-balances system?
Mr. Turley. I think it's a critical component in terms of
the rise of this administrative state. And I do think that we
have to be honest that the creation of this effective fourth
branch was not part of the original design. It creates new
pathways, new centers, within the system. And we have to be at
least concerned about how, for example, administrative courts
have become the dominant forms of adjudications in our system.
It wasn't designed for that. And, yet, when citizens go to
those courts, they find they have fewer rights. They find a
system that many view is fairly heavily weighted toward
agencies.
And, so, I think if you look at Chevron in that context,
you see that it's actually undermining both legislative and
judicial functions within the system. And where I disagree with
my esteemed colleagues, is, I don't see any cognizable
principle at all coming recently out of the Chevron cases. The
courts seem to be--to think that putting additional layers of
ambiguity onto Chevron will create clarity, and it hasn't. In
the last case of King v. Burwell, when we are looking at,
what's the dividing line? What's the role of courts? The Court
says, well, this is a question of deep economic and political
significance, and seems to avoid the Chevron analysis. That's
no better than Chevron, itself. We have this confusion in this
area that is very, very dangerous in terms of legislative
authority, in terms of judicial authority.
Mr. Marino. Thank you.
Professor Shepherd, Dr. Shepherd, one of the great oddities
in modern jurisprudence is that the courts have never really
explained how Chevron deference is consistent with the APA,
which prescribes a standard of judicial review that seems to
preclude deference to agencies' interpretations of the
statutes, but honors still--your written testimony suggests
that the legislative history of the APA demonstrates that
Congress, in 1946, actually refused to adopt a deferential
standard of review similar to Chevron's. Can you explain that
in more detail, please?
Mr. Shepherd. Yes. What is referred to in my written
testimony, the majority--there was an attorney general's
committee on administrative law that produced two reports: One
was the majority report, which was more in tune with the New
Deal liberals; and the minority report, which was more
conservative. The majority report proposed an approach like
Chevron. It suggested that that might be a good idea. It was
proposing that to the courts. However, the statute that
eventually became law, the APA, did not include that proposal.
So that was rejected. The APA was the compromise, and the
compromise that ended up had some things for conservatives, and
some things for liberals, and the compromise did not include
that Chevron approach.
Now, the question of how did Chevron possibly occur given
that the APA is very clear that there should be no deference on
the issues of law? Time passes. I don't know. It's a puzzle.
Mr. Marino. Thank you.
Professor Duffy, how can it be that in all these years
since Chevron, the courts have never grappled with this
legislative history of the APA that shows how Chevron is flatly
inconsistent with the specific legislative compromise reached
in the APA?
Mr. Duffy. Well, I agree that it is a mystery. Indeed, I
think that my colleague, Professor Hammond, said that this
doctrine of Chevron is a model of judicial self-restraint. And,
really, I think it's quite the opposite. Because there was a
specific statute that governs judicial review. And not only did
the Court go against that, go against the history, but it
didn't even attempt to read the statute. It didn't even engage
in the statute, and it still hasn't engaged in the statute.
Indeed, some of the oddities is that Justice Scalia, at times,
even in his writing, and recently in a judicial opinion,
recognized that the Chevron doctrine seem to be completely
inconsistent with the APA. So it is a mystery.
Now, I think that creates the confusion, too, that you've
got one set of principles, like Chevron with its two steps, and
then you've got the APA, and that those two things keep passing
in the night. So I think that is unfortunate.
Mr. Marino. Thank you. My time has expired.
And the Chair now recognizes the gentleman from Georgia,
Congressman Johnson.
Mr. Johnson. Thank you.
On occasion, Congress passes broad and open-ended laws
leaving it to Federal agencies to fill the gaps of delegated
authority through regulation. This has been the case since the
times, 1790's that you cited, Professor Turley.
Do you believe that the level of public safety regulation
in 1790 is appropriate--is an appropriate benchmark to compare
today's administrative process to?
Mr. Turley. That's a valid point. There's no question that
the Federal Government has changed, and this is a new reality.
I don't believe that that warrants the type of change that has
been brought forth in Chevron. In fact, back in that day, the
Framers were concerned with what was called the royal
prerogative that James I, talked about, where he said that,
really, passing legislation is just the beginning of the
process, and that he uses his own logic to improve it. And the
Framers rejected that. And I think Chevron creates a sort of an
agency prerogative, where agencies treat legislation as just
the start of the legislative process. I think that's dangerous
for legislative authority.
Mr. Johnson. Well, do you think that the legislature, then,
should draft more specific legislation? Is that the solution
rather than judicial scrutiny? Can we apportion some of the
blame that we are assessing to the judicial branch through the
legislative branch in terms of its inability to formulate a
strict, all-encompassing, legislation that needs no rulemaking?
Mr. Turley. I think that's a very valid point, again. But I
do want to differ in one sense.
Mr. Johnson. Is it practical? Is that practical, though----
Mr. Turley. I believe it is practical in the sense that----
Mr. Johnson [continuing]. In this Congress?
Mr. Turley.--I think obviously agencies are going to have
interpretive roles. There's application to laws that are going
to deal with questions that this body cannot answer. What I
think is dangerous about Chevron is the assumption that there's
an applied delegation of Congress to have agencies perform this
legislative role. That's what I reject. I think that's a very
dangerous presumption to make, because it robs this institution
of a very important role. Congress is so vital to that
tripartite system, because it's in this body where factional
disputes results in majoritarian compromise, at least ideally
they do. But this is where that magic is supposed to happen. If
you shift the center of gravity over to agencies performing a
legislative role away from you, that doesn't have the same
impact politically the Framers wanted.
Mr. Johnson. Okay. Thank you.
Professor Hammond, what is your response to Professor
Turley's remarks?
Ms. Hammond. Well, first of all, I'd like to say about this
idea of implicit delegation of interpretive authority, the
courts themselves recognize that that is a fiction. The courts
have adjusted the deference doctrines and the standard of
review to the fact of broad delegations of authority. So, for
example, while the nondelegation doctrine is a very easy test
to pass, agencies are required to provide reasons for what they
do. There is no presumption of regularity in the same way that
a court reviewing a legislative enactment would provide. And so
when courts are reviewing agencies, by asking the agencies to
explain themselves, not rubber stamping what they do, courts
are actually fulfilling a constitutional role themselves, and
policing the boundaries of what agencies are doing.
Mr. Johnson. Thank you.
Professor Beermann, as a general matter, do you endorse
enhanced judicial review when it comes to deregulatory actions?
Mr. Beermann. Well, you see, that's a great----
Mr. Johnson. Yes or no?
Mr. Beermann. Yes. And I think that raises a great point
about the origins of Chevron, because Chevron was a decision in
a period of deregulatory government action. And it was
originally the proponents of Chevron were the people favoring
less regulation, and the opponents of Chevron where people were
saying bring more regulation. It was viewed that what was going
to happen under Chevron was it was going to let the agencies
get away with more deregulation, contrary to what Congress had
said in the statutes. And I think that's an important point. To
me, I am just completely neutral on what the substance of the
Congress' output is. To me, the appropriate focus for judicial
review should be on what Congress wanted the agency to do. And
I think, too often, the Chevron doctrine allows for the courts
to ignore what Congress wanted the agencies to do, regardless
of whether it's regulatory or deregulatory.
Mr. Johnson. All right. My time is up. Thank you.
I yield back.
Mr. Marino. The Chair now recognizes the gentleman from
California, Congressman Issa.
Mr. Issa. Thank you. Thank you, Mr. Chairman.
Professor Turley, good to see you again.
Mr. Turley. Thank you, sir.
Mr. Issa. I'm going to address this to you, and as we go up
and down the dais, I have no doubt that many of the questions
will be similar to this. But earlier today, we had a lengthy
hearing in which DACA executive action that has not been
stopped, but clearly, is not a court decision, and the
Affordable Care Act, where there's been multiple decisions, so
I'm going to focus on the Affordable Care Act for this
afternoon.
In that hearing, we seem to hear, essentially, we commend
the court led by Chief Justice Roberts, in ignoring a few words
in the Act and looking at the meaning. And to a certain extent,
that's what we're talking about this afternoon, that Chevron
is, in fact, ignore the words, focus on the meaning. Would you
say that's a fair recognition of what, if you will, the
doctrine asks the Court to do, or the Court, under that
doctrine, asks itself to do?
Mr. Turley. Well, I would certainly agree to the extent
that I believe that Chevron gives license for analysis that
ignores the text. In fact, Chevron itself ignores the text of
the APA, which is section 706. This body actually did a good
job in saying, this is the function of the Court. If you read
section 706, it makes abundant sense, and the Court simply
ignored that language, and I think it's----
Mr. Issa. And that's where my question leads. Thank you,
Professor. You've done it again. You've anticipated.
In this body, in future legislation, limiting the Court by
deciding that what is in a particular law is all that there is,
would use similar language to the Affordable Care Act. We would
say, you know, if there's any ambiguity, come back to us, no
extension beyond explicitly those granted shall be there.
The words would probably not be as simplistic and profound
as the Constitution, where we've been arguing over what the
State has and what the Federal Government has for years, but it
would be similar. You know, Federal Government only gets such
powers as are explicitly given to it, all the rest belongs to
the States or the people.
If we cannot use the language of the Affordable Care Act to
make it clear that we don't want limitations, unless, of
course, we want them, which is what had happened in the first
Affordable Care Act portion, how do we structure language as
the body, the only body that can make law? How do we structure
language to limit the excesses, erroneous conduct, or outright
deliberative abuse of laws that allow for a regulatory
creation?
Mr. Turley. It's an excellent question. What I suggest in
my testimony is that we may want to consider, both in terms of
amending the APA to deal with the issuance of judicial review,
but also the inclusion of what would effectively be a Chevron
provision in laws that make it clear that this body is not
delegating authority over issues like legal interpretation,
certainly, not when it comes----
Mr. Issa. But isn't that what was in the Affordable Care
Act, that, in fact, the Court ignored by finding ambiguity and,
thus, you know, applying the meaning? I mean, by the way, I'm
one of those people that understands that the Republicans who
voted against it knew what they didn't want, and the Democrats
wanted the government to pay for it, make happen, and so on. I
mean, I think Chief Justice Roberts, in a sense, hit one thing
right in that case. He did order a solution that allowed the
people who voted for that Act to get what they wanted, not what
they wrote, but what they wanted.
So I sort of reiterate, if it didn't work there, what
language would you say would be unambiguous enough to keep
lifetime appointments from saying, we see it, but we don't read
it. And I'll follow up, because my time is running out. But the
second half of the question is, wouldn't the alternative of
expressly having all regulations expire, not just all law, but
all regulations expire within a period of time; in other words,
can't we make an act and all future acts that say, you know,
you may produce regulations, but those regulations have to be
codified, otherwise, they're only good for the 5 years, or
until the reauthorization of the act? Isn't, ultimately, a time
limit on regulations a better solution than, in fact, trying to
say, you won't go there when, in fact, there's a record that
going there doesn't have a penalty sometimes?
Mr. Turley. Well, I clearly disagree with aspects of the
ACA ruling by the Supreme Court. We agree on that. I do think
that you have the authority to do precisely that. I also
thought that you have authority under congressional approval
statute along the lines of the REINS Act. All of that, I think,
is within the power of Congress.
I think what they have to do is, this body has to be
aggressive in trying to get back this authority. The Court has
made a colossal mess of this area, particularly on Chevron. I
don't know anyone that would think that Chevron, at this point,
that we have an absolute certainty on this--behind this table
of what Chevron even means anymore, except that it insulates
agencies from effective review.
Mr. Issa. Mr. Chairman, thank you very much. I appreciate--
I would have liked to have heard from all the witnesses, but I
understand the limited time, and I yield back.
Mr. Marino. The Chair now recognizes the gentlelady from
Washington, Congresswoman DelBene.
Ms. DelBene. Thank you Mr. Chair, and thanks to all of you
for being here today.
Professor Hammond, I wanted to ask if you are familiar with
the U.S. Department of Education's gainful employment rule?
Ms. Hammond. I'm not.
Ms. DelBene. So the gainful employment rule is an attempt
to--has been attempted to find gainful employment so that
taxpayer-funded financial aid for career education programs is
actually going to students who are really being trained for
real careers, and attempt to deal with some of the challenges
that they've seen, especially with for-profit colleges. I bring
that up, because when the Department of Education first put the
rule in place, it was challenged and struck down. But in that
case, the judge did uphold the Department of Education's
authority to issue regulations enforcing the gainful employment
requirement in the relevant statute.
The judge commented that, ``The Department had gone looking
for rats in rat holes as the statute empowers it to do.'' The
Department of Education went back to the drawing board, and
after notice and comment, put forward a revised rule, and that
rule was upheld in court just last week. Now, it seems--it
seems that this is a pretty good example of the process working
well, where a problem impacting families was identified, the
relevant agency acted within the authority that Congress
granted it, and through a transparent and accountable process,
a solution was formed. So I wondered if you think that we put--
do we put this process at stake if we start tinkering with the
current legal framework by putting together piecemeal
legislation?
Ms. Hammond. Yes. That's a great question. And I have
published an article in the Columbia Law Review on this issue
of what I call serial litigation. So an agency's action is
challenged; it's remanded; the agency then corrects itself; the
action is challenged again. And courts very often do reward
agencies the second time for paying attention.
Our current deference regimes enable this kind of dialogue.
When courts explain in a first instance what the agency has
done wrong, but remands to the agency for a chance to fix it,
this furthers the responsiveness of our administrative state.
It's acting within the bounds that the courts have reiterated,
and then when it does that, when an agency does that, deference
the next time around is appropriate.
Ms. DelBene. So do you think that it's possible that
legislation could actually create new or, you know, worse, in
some cases, legal uncertainties in cases where the agency
rulemaking actually seeks to, and clarify in this case, an
ambiguous part of the law that Congress chose not to define?
Ms. Hammond. Yes. If we ask courts to review de novo, we
lose that ability to really bring in the expertise of the
agencies and the responsiveness in a dialogic kind of way
with--between the agencies and the courts.
Ms. DelBene. And in--so if we, in Congress, want to be
crystal clear and preempt agency rulemaking on a particular
point in legislation, obviously, we can do that through careful
and considered drafting ourselves? Isn't that correct?
Ms. Hammond. That's right.
Ms. DelBene. Professor Pierce, I wondered if you had a
comment on this, on the rulemaking example I brought up, and
also on whether you think legislation can be helpful or would
create more uncertainty?
Mr. Pierce. I actually think, over time, it would have no
effect at all. And this goes back to where I was totally wrong
on Chevron. I looked at Chevron and said, I thought it made
sense. Maybe I'm right, maybe I'm wrong. I wrote a bunch of
books and articles about how good it was and then about how
much is changing. It hasn't. And I don't think--change isn't
tinkering in language. You know, they're always going to be
deferring. They have to defer. They don't know much about
nuclear energy. They don't know much about water pollution.
Agencies know much more about it. So there's always going to be
a degree of deference, and there's always going to be, on the
other side of it, a tendency to check to make sure they only do
things that they can explain pretty well, and that they only do
things that are within statutory boundaries. And that's the
nature of the beast. And you could describe it 100 different
ways, and it's not going to change what the courts actually do.
I will--I have to say that one of the problems--going back
to an earlier exchange, one of the problems, there are horribly
drafted bills.
The Chief Justice added a paragraph in his opinion in King
v. Burwell, in which he alluded to the process through which
that legislation became law. And it was a process that led to a
mess that where it's very difficult to reconcile the purposes
of one part with the language of another part. And the clean
air--power plant has a bigger problem that in 1990, the House
put one provision in section 111, and the Senate put another
provision. They are totally inconsistent, and then both were
enacted.
Ms. DelBene. My time has expired.
Mr. Pierce. So the courts have to decide which of the
things that the Congress said to take seriously, because one
says yes, and the other says no.
Ms. DelBene. Thank you.
I yield back, Mr. Chair.
Mr. Marino. The votes have been called. We are going to try
to get the other two gentlemen in before, because I don't want
you to have to wait here for a half hour or so.
The Chair recognizes the gentleman from Texas, Mr.
Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman.
So I've only been in Congress for the last 15 months, but
in that period of time, I've already been able to have hundreds
of conversations with small business owners and farmers and
community bankers, independent insurance agents across the
rural Northeast Texas district that I represent that all those
conversations end in frustration over the endless burden of
regulatory agencies and rules. Sometimes it relates to
ObamaCare; sometimes it relates to the EPA regulating puddles
in people's backyards, or trying to tell my constituents what
kind of light bulbs they have to buy, and this frustration is
really heightened, because when I came into Congress, I came in
as part of a historic majority here in the House, and as part
of the Congress where we took over the Senate as well, and I
think my constituents expected things to change, hoped that
Republicans would put a stop to a run-away administrative state
in this country. But admittedly, very little has changed. And
we can talk about executive overreach, but I'm willing to admit
and acknowledge that part of the problem here is legislative
underreach, and with respect to the Chevron doctrine and other
things.
So I'm certainly grateful that we're having this hearing
today. We have an opportunity to talk about the possibility of
solutions to this pervasive problem, and so I want to start
with you, Professor Turley, because in your written testimony
you said that--and I'll quote you here, ``Fear that the growth
of Federal agencies is reaching a critical mass within our
system, a point where rapid exponential and irreversible
expansion will occur.''
So, in your opinion, first, let me ask you, what are the
greatest drivers of this agency expansion? And where does
Chevron fall on that list?
Mr. Turley. Well, thank you very much for that question. I
think that the danger itself is existential for the system. I
happen to agree with many things that agencies do. But for us
to pretend this isn't a new system with new dimensions of power
and pathways is to ignore reality. Part of the frustration that
your citizens have is they sense correctly that the center of
gravity of the government has shifted away from them, that they
are more the subject of government power than the source of
government power. And I do think that that's a legitimate
concern, and I think Chevron is part of it. If you want to deal
with the independence of agencies, you have to deal with the
insulation of agency decisions that is exposed to Chevron. But
Chevron also captures this idea that the administrative state
is a new reality. When we hear some of my colleagues talk, and
they say, well, we have to assist the administrative state. And
that's exactly what it is. It's becoming a state with
legislative and judicial and executive powers combined. And I
think that would horrify the Framers.
Mr. Ratcliffe. So I'm going to ask you to speculate here.
Let's say that Congress were to pass legislation overturning--
essentially, overturning Chevron and a President, not
necessarily this President, were to sign that into law, in your
estimation, how far would that go in addressing this vast
agency expansion that we're talking about?
Mr. Turley. Well, it would not take--it would not dismantle
the administrative state. And I think we all have to accept
that there's going to be a role of the Federal agencies. This
is part of this large government that we have. But it's a very
important first step. I think the court should look at things
like the REINS Act and other ways to force agency decisions to
come back before Congress. But the most important thing about
attacking Chevron is to tell courts that you are wrong. You
can't just imply that we are delegating legislative authority
to the agencies every time you have ambiguity, even on legal
questions. And you certainly can't do that on a question of
jurisdiction. That's why the City of Arlington case really is
so chilling for me, is that we always assume that would be the
rubicon, at least agencies wouldn't get deference on defining
their own jurisdiction. And I think Congress needs to attack
that very aggressively.
Mr. Ratcliffe. Thank you.
Professor Shepherd, I want to give you an opportunity to
talk about an issue that I noticed from your testimony. One of
the oddities here in modern jurisprudence is the fact that
courts have never really explained why the Chevron deference is
consistent with the APA, which prescribes a standard of
judicial review that seems to preclude deference to agency
interpretation of statutes. Your written testimony suggests
that the legislative history of the APA demonstrates that
Congress, in fact, actually refused to adopt the deferential
standard of review similar to Chevron. And I want to give you
an opportunity to explain that.
Mr. Shepherd. I've already mentioned that briefly, that
that's exactly what happened. There was a proposal to--from an
attorney general's committee to allow Chevron-style deference,
and that proposal did not find its way into the ultimate
compromise.
Mr. Ratcliffe. Well, thank you.
My time has expired. I did want to--Professor Duffy, I
appreciate your comments regarding a de novo standard, and I
will tell you that I agree with you.
And I'll yield back.
Mr. Marino. Thank you.
The Chair now recognizes the gentleman from New York,
Congressman Jeffries.
Mr. Jeffries. I thank the Chair, and I thank the witnesses
for what has been a very thoughtful discussion.
Professor Turley, is it my understanding that one of your
concerns with the Chevron doctrine is that the Court seems to
be coming to the conclusion that the ambiguity in the statute
effectively means that Congress is delegating authority to the
administrative agencies? Is that right?
Mr. Turley. Well, there's an assumption of implied
delegation that underlies many of these cases that I think is
misplaced. It gives agencies, in my view, far much--too much
insulation from review under the Chevron doctrine.
Mr. Jeffries. And would you agree there's been an active
discussion around the rise of the regulatory state that perhaps
even dates back to Justice Scalia's days as a university
professor connected to an article that he wrote, I think it was
in 1981?
Mr. Turley. Yes. Yes, I think so.
Mr. Jeffries. And so that, essentially, means that for at
least 35-plus years, there's been this concern that an
administrative state, a fourth branch of government, has
arisen, and the linchpin for it is the ambiguity that continues
to exist coming out of bills passed by this House and that
Senate, correct?
Mr. Turley. Yes. I would qualify it in this one respect.
Because I do agree with an earlier statement made that there
are statutes that have gone to the courts that I don't consider
to be ambiguous, that the interpretation has been yielded to
Federal agencies, in my view, improperly by the courts. And I
think that undermines both the judicial branch and the
legislative branch.
Mr. Jeffries. But would you agree that it certainly is the
case in many instances, statutes that are being passed by this
Congress remain broadly vague in ways that allow for, perhaps,
judicial overreach?
Mr. Turley. Oh, I think that's certainly the case in many
statutes.
Mr. Jeffries. And so at a certain point, don't you think
it's reasonable for the courts to assume not just that there's
implied delegation, but that the absence of a mechanical
precise focus by this Congress over decades, notwithstanding
the active debate and the view by many that there's been
judicial overreach, to continue to send out statutes that are
vague? At a certain point, it does seem to me, perhaps, that
some could reasonably conclude that Congress is implying, we
don't have the expertise; we don't have the time; we don't have
the tolerance to enact these statutes in a more precise
fashion?
Mr. Turley. I think that's an excellent point. I would
qualify it in two respects where we may disagree. One is that
part of the problem of the Chevron doctrine is that the Court
is putting these layers of ambiguity on Chevron to the point
that you have the deference, but the rationales change. And I
think that's dangerous.
Second, I don't think Congress does imply delegation for
legislative actions. I think that there are lots of reasons why
there's ambiguities, but nobody here is suggesting that
agencies shouldn't interpret. No one is suggesting that they
shouldn't get a--that the Court should not defer to some
extent. The question is the extent. And it certainly should not
extend to legal reasoning or jurisdictional questions, some of
the reach we've seen with Chevron. But agencies are going to be
given a certain amount of weight. That was what happened under
Skidmore. Chevron solved a problem that didn't exist in my
view, and it's made it a lot worse.
Mr. Jeffries. Now, you, in terms of, sort of, the original
intentions of the Founders and thinking about, sort of, how
Congress was constructed and the notion that every Member of
Congress would be a generalist, and then there would be a
subset of specialists who would work through the Committee
process. Is that a reasonable definition of how Congress, at
least, has evolved and been thought of in terms of the Framers'
intentions?
Mr. Turley. Well, I think you're right about being
generalists, but I would caution that the Framers believed that
the structure of the system would actually help direct
compromise, would help diffuse divisions by reaching
majoritarian compromise. What has happened is that we've
created this whole new bureaucracy of the administrative state
which is answering those questions that are supposed to be
answered here. Whether it's convenient or not, I think it has
pretty dire consequences for our political system.
Mr. Jeffries. Thank you for that. And I would say that I do
think Professor Pierce's observation about the expertise
necessary in an increasingly complex society that it's
possessed, in some regard--and, certainly, I have great respect
for Chairman Marino and others on this panel, got certain
subset of expertise, particularly in law enforcement, but that
in some of these other areas, whether it involves the energy
sector, food, safety, toxic water, that there is a degree of
administrative expertise that exists most specifically at these
agencies, and that in some sense, it is reasonable for there to
be some understanding of deference given to them.
And I thank you, all, for your thoughts.
And I yield back.
Mr. Turley. Thank you.
Mr. Marino. Thank you.
This concludes today's hearing. And thanks to all our
witnesses for attending.
Without objection, all Members will have at least 5
legislative days to submit additional written questions for the
witnesses or additional materials for the record.
This hearing is adjourned, and we have to run to vote.
[Whereupon, at 3:49 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Response to Questions for the Record from Richard J. Pierce, Jr., Lyle
T. Alverson Professor of Law, The George Washington University Law
School
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Questions for the Record from Emily Hammond, Associate Dean
for Public Engagement & Professor of Law, The George Washington
University Law School
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]