[Congressional Record Volume 162, Number 111 (Monday, July 11, 2016)]
[House]
[Pages H4615-H4622]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SEPARATION OF POWERS RESTORATION ACT OF 2016
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous material on H.R. 4768.
The SPEAKER pro tempore (Mr. Heck of Nevada). Is there objection to
the request of the gentleman from Virginia?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 796 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 4768.
The Chair appoints the gentleman from Virginia (Mr. Rigell) to
preside over the Committee of the Whole.
{time} 1742
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 4768) to amend title 5, United States Code, with respect to the
judicial review of agency interpretations of statutory and regulatory
provisions, with Mr. Rigell in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Virginia (Mr. Goodlatte) and the gentleman from
Georgia (Mr. Johnson) each will control 30 minutes.
The Chair recognizes the gentleman from Virginia (Mr. Goodlatte).
Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may
consume.
The need for the Separation of Powers Restoration Act of 2016 to
restore balance in our Federal system is clear. The modern Federal
administrative state is an institution unforeseen by the Framers of our
Constitution and rapidly mushrooming out of control.
This legislation takes square aim at one of the biggest roots of this
problem, the Chevron Doctrine, under which Federal courts regularly
defer to regulatory agencies' self-serving and often politicized
interpretations of the statutes they administer. This includes
interpretations like those that underlie the EPA's Clean Power Plan and
waters of the United States rules. These are just a few examples of
rules consciously designed by regulatory agencies to violate Congress'
intent. They threaten to wipe out the Nation's key fuel for electric
power generation and extend the EPA's permitting tentacles into every
puddle in every American backyard.
This bill also takes on the related Auer doctrine, under which courts
defer to agencies' self-serving interpretations of their own
regulations. Auer and Chevron deference work hand in hand to expand the
power of Federal bureaucrats to impose whatever decision they want as
often as they can, escaping, whenever possible, meaningful checks and
balances from the courts.
{time} 1745
In perhaps the most famous of the Supreme Court's earlier decisions,
Marbury v. Madison, Chief Justice Marshall declared for a unanimous
Court that ``it is emphatically the province and duty of the Judicial
Department to say what the law is.''
Since the Chevron doctrine allows judges to evade interpreting the
law, and instead to defer to agencies' interpretations, one must ask:
Is Chevron faithful to Marbury and the separation of powers?
In the Administrative Procedure Act of 1946, often called the
constitution of administrative law, Congress provided for judicial
review of agency action in terms that were plain and direct. It stated
that ``the reviewing court shall decide all relevant questions of law
and interpret constitutional and statutory provisions.''
That standard is consistent with Marbury and the separation of
powers.
[[Page H4616]]
But since Chevron allows judges to escape interpreting statutory
provisions themselves, one must ask: Is Chevron unfaithful not only to
Marbury and the separation of powers, but also 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.
Judicial deference under Chevron weakens the separation of powers,
threatening liberty. It bleeds out of the judicial branch power to
interpret the law, transfusing that power into the executive branch.
And it tempts Congress to let the hardest work of legislating bleed out
of Congress and into the executive branch since Congress knows judges
will defer to agency interpretations of ambiguities and gaps in
statutes Congress did not truly finish.
This leads us down the dangerous slope James Madison warned against
in Federalist 47: ``The accumulation of all powers, legislative,
executive, and judiciary, in the same hands,'' that ``may justly be
pronounced the very definition of tyranny.''
The Separation of Powers Restoration Act of 2016 is timely, bold
legislation directed straight at stopping our slide down that dangerous
slope. In one fell swoop, it restores the separation of powers by
legislatively overturning the Chevron doctrine and the related Auer
doctrine.
This is reform we must make reality for the good of the American
people. I want to thank Representative Ratcliffe for his introduction
of this important legislation, and I urge my colleagues to support the
Separation of Powers Restoration Act.
Mr. Chair, I reserve the balance of my time.
Mr. JOHNSON of Georgia. Mr. Chair, I yield myself such time as I may
consume.
Judicial review of final agency action is a hallmark of
administrative law and is critical to ensuring that agency action does
not harm or adversely affect the public. But as the Supreme Court held
in Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,
reviewing courts may only invalidate an agency action when it violates
a constitutional provision or when an agency unreasonably exceeds its
statutory authority as clearly expressed by Congress.
For the past 30 years, this seminal decision has required deference
to the substantive expertise and political accountability of Federal
agencies. As the Court explained in Chevron: ``Federal judges--who have
no constituency--have a duty to respect legitimate policy choices made
by those who do. The responsibilities for assessing the wisdom of such
policy choices and resolving the struggle between competing views of
the public event are not judicial ones: `Our Constitution vests such
responsibilities in the political branches.'''
H.R. 4768, the Separation of Powers Restoration Act of 2016, would
eliminate this longstanding tradition of judicial deference to
agencies' interpretation of statutes and rules by requiring courts to
review agency action on a de novo basis.
This misguided legislation is not the majority's first attempt to
gum-up the rulemaking process through enhanced judicial review. Since
the 112th Congress, a number of deregulatory bills we have considered,
such as H.R. 185, the Regulatory Accountability Act, would require
generalist courts to supplant the expertise and political
accountability of agencies in the rulemaking process with their own
judgments.
Compare this approach with other deregulatory bills passed by this
Congress that would greatly diminish judicial review of deregulatory
actions by dramatically shortening the statute of limitations for
judicial review, sometimes to just 45 days.
In other words, the majority wants to have it both ways. When it
benefits corporate interests, Republican legislation heightens scrutiny
of agency rulemaking, like this act does, threatening to impose years
of delay and untold costs on taxpayers. When it benefits the public or
our environment, Republican legislation slams the courthouse door shut
through sweeping restrictions on the court's ability to protect public
health or the environment.
These proposals are transparently the design of special interest fat
cats to minimize their exposure to legal accountability. H.R. 4768 is
more of the same. At a minimum, this bill will delay and possibly
derail the ability of agencies to safeguard public health and safety.
Without any constraints on judicial review, the bill will also
incentivize judicial activism by allowing a reviewing court to
substitute its own policy preferences for those of the agency, which
Congress has specifically entrusted with rulemaking authority.
In other words, this bill resolves a perceived imbalance between the
branches by granting immense authority to the judicial branch so that
it may act as a super regulator through judicial fiat.
In a letter opposing this bill, a group of the Nation's leading
administrative law professors underscored this point, arguing that the
bill is motivated by policy disagreements, not actual concerns with
judicial deference.
I strongly oppose H.R. 4768 and urge my colleagues to do the same.
Mr. Chairman, I reserve the balance of my time.
Mr. GOODLATTE. Mr. Chairman, I yield 5 minutes to the gentleman from
Texas (Mr. Ratcliffe), the chief sponsor of this legislation and a
member of the House Judiciary Committee.
Mr. RATCLIFFE. Mr. Chair, I rise in support of the Separation of
Powers Restoration Act of 2016.
I want to thank Chairman Goodlatte for giving me the opportunity to
lead on this issue. I also want to thank the 113 Members of Congress
who believe this bill is important enough to cosponsor it.
It is my sincere hope that all 435 Members of this House will vote in
support of this incredibly important bill because every Member of this
body took an oath to defend the Constitution and none of us should
accept the constitutional erosion and infringement that is having a
devastating impact on the very constituents that we all swore to
represent.
Mr. Chair, I ran for Congress because I wanted the opportunity to
address the big issues of our time, to address the real problems that
are hurting all Americans, and the Separation of Powers Restoration Act
does exactly that. That bill repeals the so-called Chevron doctrine
and, in so doing, will restore the constitutional separation of powers
that our Founding Fathers intended.
Named for the Supreme Court's 1984 decision in Chevron USA, Inc. v.
Natural Resource Defense Council, Inc., the Chevron doctrine has, for
three decades, required courts to defer to agency interpretations of
ambiguous laws. Said more plainly, Mr. Chair, this means that when
American citizens and businesses challenge Federal regulators in court,
the deck is stacked in favor of the regulators.
Chevron deference is one of the, if not the primary, driving forces
behind an outrageous expansion of a regulatory branch that our Founding
Fathers never intended and one that is crippling the American economy
and the American people.
Unelected bureaucrats now draft regulations with the Chevron doctrine
in mind, knowing that it will give them the ability to regulate,
sometimes for political gain, beyond the actual scope of the statutes
that we pass as the duly elected representatives of the people.
Mr. Chair, by allowing unelected, unaccountable regulators to
effectively grade their own papers, we are circumventing the will of
the American people.
Under Chevron, Congress can't prevent agencies from engaging in de
facto lawmaking and courts are abdicating their constitutional
responsibility to interpret laws. My bill will very simply fix this
perversion of our Constitution by ensuring that Congress, not agencies,
writes the laws; and that courts, not agencies, interpret the laws.
Mr. Chair, it is vitally important to stress that my bill is entirely
agnostic to specific policy issues. It doesn't specifically support or
oppose any certain regulatory actions. This bill is simply about
defending the Constitution and reestablishing three coequal branches of
government. This is not and should not be a partisan issue.
The candid truth, Mr. Chair, is that the Chevron doctrine has been
abused by Democrat and Republican administrations alike for three
decades. Both have been guilty of abusing the separation of powers for
political expedience,
[[Page H4617]]
and it is the American people who have been victimized by this. So
let's end it. Let's finally fix a problem that plagues all Americans.
Mr. Chair, many of us believe that the American experiment has
endured, in large part, because of the wisdom and the thoughtful manner
in which our framers crafted our Constitution. I refuse to believe that
we can't all at least agree on that. I refuse to believe that restoring
three coequal branches of government needs to be controversial.
Today this body has an opportunity to stand up for and with the
American people and stand against overreaching bureaucrats that the
American people never elected. So, Mr. Chair, when the Constitution is
restored, it is the American people who will win.
Dear Members of Congress: We write to express support for
the Separation of Powers Act (SOPRA) (H.R. 4768 and S. 2724)
which would require courts to check regulatory overreach. As
organizations dedicated to a free and open Internet, we
believe SOPRA would be especially important in restoring
judicial oversight of the FCC--and thus protecting Internet
freedom from government overreach.
Two Supreme Court decisions, Chevron v. NRDC (1984) and
Auer v. Robbins (1997), mean that courts generally grant
broad deference to administrative agencies in interpreting
ambiguous statutes and agency regulations. Only because of
Chevron deference did two (of three) D.C. Circuit judges
recently vote to uphold the FCC's 2015 Open Internet Order.
That decision gave the FCC a blank check to regulate the
Internet as it sees fit, even to the point of effectively
rewriting the Telecommunications Act of 1996. The Open
Internet Order represented a fundamental break from the
light-touch, bipartisan approach that had allowed the
Internet to flourish for nearly two decades.
Despite the FCC's talk of protecting ``net neutrality,''
the FCC went well beyond that: reclassifying broadband under
Title II of the 1934 Communications Act and claiming sweeping
power over broadband. Under the panel majority's blind
Chevron deference to the FCC, it is hard to see how the
courts could stop the FCC from extending such outmoded
regulations to ``edge'' companies like Facebook and Google,
too. Similarly, while the FCC has promised to ``forebear''
from certain provisions of Title II, the court's decision
suggests that the FCC would get deference in unforbearing--
which could result in the full weight of Title II being
imposed on the Internet. Or, conversely, a deregulatory-
minded FCC could use forbearance to gut not just the Order,
but much of the existing regulations.
In short, the majority's view of Chevron means Internet
regulation will now be a game of political pingpong--with the
courts resigned to sitting on the sidelines, watching the
ball bounce back and forth. This ongoing uncertainty is
particularly damaging to small businesses, who often lack the
resources needed to comply with shifting regulatory burdens
and litigate against unfavorable regulatory changes.
SOPRA would restore the Judiciary's constitutional role in
checking agency overreach and preventing excessive
regulations from impeding innovation and economic growth.
Specifically, the bill would clarify that the Administrative
Procedure Act requires courts to conduct a new review of
relevant questions of law when evaluating agency
regulations--rather than simply deferring to the agency's
judgment.
Sincerely,
TechFreedom, American Commitment, American Consumer
Institute, Americans for Tax Reform, Center for Freedom and
Prosperity, Civitas Institute, Competitive Enterprise
Institute, Digital Liberty, Free the People, Independent
Women's Forum, Institute for Liberty, Less Government,
Mississippi Center for Public Policy, National Taxpayers
Union, Protect Internet Freedom, Rio Grande Foundation,
Taxpayers Protection Alliance, Tech Knowledge.
____
Dear Members of Congress: On behalf of our organizations
and the millions of Americans we represent, we are writing to
express our strong support for H.R. 4768 and S. 2724, the
Separation of Powers Restoration Act (SOPRA). This law would
give courts the clarity they need to interpret powers
ambiguously delegated to administrative agencies.
Congress has, from time to time, been unclear as to the
extent of powers it delegates to agencies. Consequently, the
courts have adopted two doctrines, known as Chevron and Auer
after the cases Chevron USA Inc. v. NRDC and Auer v. Robins,
which grant great deference to agency interpretations of the
ambiguities. Chevron represents a general presumption that
courts should defer to agency interpretation of statues,
while Auer requires that courts defer to agency
interpretations of their own regulations.
In Marbury v. Madison, Chief Justice John Marshall wrote,
``It is emphatically the province and duty of the Judicial
Department to say what the law is.'' In Chevron v. NRDC,
Justice John Paul Stevens said it was the province of
executive branch agencies to say what the law is.
While these doctrines reflect a concern for a lack of
expertise in the courts, their effect can be to give
bureaucrats the power to make new law. For instance, in
Babbitt v. Sweet Home Chapters of Communities for a Great
Oregon, the Supreme Court used Chevron to defer to the
Secretary of the Interior when he redefined long-accepted
meanings of ``taking'' wildlife to include unintentional harm
to an endangered species, greatly expanding the Secretary's
power and control over Americans.
Auer provides a perverse incentive for an agency to issue
deliberately vague regulations that it can reinterpret as it
chooses, avoiding the notice-and-comment requirements of the
Administrative Procedure Act for a change in regulation. A
recent court decision may even allow the agency effectively
to rewrite the statute by reinterpreting a vague term in a
regulation that also appears in the statute.
In our view, this combination of delegation and deference
represents an unjust expansion of administrative power at the
expense of the legislative and judicial powers, contrary to
the ideals of the American founding.
SOPRA would amend the Administrative Procedure Act to
require courts to conduct a de novo (from scratch) review of
all relevant questions of law and regulation when they are
called into question. This represents a vital step in
restoring the courts to their proper role as arbiters of
statutory interpretation.
Before Chevron, courts relied on agency expertise to guide
their decision making, but they did not cede their
fundamental responsibility to interpret the meaning of
statutes to agencies. SOPRA would restore that discretion.
Millions of Americans are suffering under the weight of
burdensome regulation, and often find themselves unable to
challenge effectively unjust rules as a result of these
judicial doctrines. SOPRA is one of the ways in which we can
lift this oppressive burden from their backs.
Thank you for your consideration,
Competitive Enterprise Institute, American Commitment,
American Energy Alliance, Americans for Prosperity, Americans
for Competitive Enterprise, Americans for Tax Reform,
Campaign for Liberty, Frontiers of Freedom, Heritage Action
for America, Institute for Liberty, Less Government, National
Center for Public Policy Research, National Taxpayers Union,
60 Plus Association, Taxpayers Protection Alliance.
Mr. JOHNSON of Georgia. Mr. Chair, I yield such time as he may
consume to the gentleman from Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Chair, members of the committee and the House
Representatives, I rise in strong opposition to H.R. 4768, the
Separation of Powers Restoration Act.
By eliminating judicial deference to agency determinations, the bill
would make the already ossified rulemaking process even more time
consuming and costly, threatening the ability of Federal regulatory
agencies to protect public health and safety. This is true for several
reasons.
Ironically, for a bill that purports to restore separation of powers,
H.R. 4768 actually raises separation of power concerns. It is ironic,
but accurate. Congress makes the laws and agencies implement them while
the courts are supposed to interpret the law.
The Supreme Court has long recognized that Congress may
constitutionally delegate its authority to agencies through statutes to
promulgate rules to implement the law it passes, with democratic
accountability stemming from the fact that Congress can always rescind
or narrow the scope of that delegation.
We specifically entrust these agencies, not the courts, with broad
policymaking authority. Yet, by removing constraints on judicial review
of agency action, H.R. 4768 would empower generalist and unelected
courts to nullify agency action solely on policy grounds, substituting
the administrative record with their own policy preferences.
{time} 1800
Such authority would go beyond the traditional bounds of the judicial
role, as the Federal courts themselves have thus far recognized through
their deference to agencies.
H.R. 4768 would upend the careful and longstanding balance among the
three branches of government, all in the name of serving anti-
regulatory corporate interests.
In addition, this measure would encourage judicial activism. By
eliminating judicial deference, the bill would effectively empower the
courts to make public policy from the bench, even though they may lack
the specialized expertise and democratic accountability that agencies
possess, through delegated authority from and oversight by the American
people's elected representatives.
[[Page H4618]]
Although the Supreme Court has had numerous opportunities to expand
judicial review of rulemaking, thankfully, the Court has rejected this
approach in recognition of the fact that generalist courts simply lack
the subject-matter expertise of agencies, are politically
unaccountable, and should not engage in making substantive
determinations from the bench.
It is somewhat ironic that some who have long decried ``judicial
activism'' would now support facilitating a greater role for the
judiciary in agency rulemaking.
Finally, H.R. 4768 would result in regulatory paralysis and, thereby,
undermine public health and safety.
Regulations are the result of years--very often many years--of
careful deliberation and expert analysis. Typically, after an agency
first proposes a rulemaking, it must solicit public comment. The agency
then analyzes this input and, after further deliberation, promulgates a
final rule.
Additionally, for certain rules, agencies must undergo further
procedures such as conducting a cost-benefit analysis and a separate
analysis of the rule's potential impact on small businesses. This is a
time-consuming process that some believe is already too inflexible.
Mr. Chair, I rise in strong opposition to H.R. 4768, the Separation
of Powers Restoration Act of 2016.
By eliminating judicial deference to agency determinations, the bill
would make the already ossified rulemaking process even more time-
consuming and costly, threatening the ability of federal regulatory
agencies to protect public health and safety.
This is true for several reasons.
Ironically, for a bill that purports to ``restore'' separation of
powers, H.R. 4768 actually raises separation of power concerns.
Congress makes the laws and agencies implement them, while the courts
are supposed to interpret the law.
The Supreme Court has long recognized that Congress may
constitutionally delegate its authority to agencies through statutes to
promulgate rules to implement the laws it passes, with democratic
accountability stemming from the fact that Congress can always rescind
or narrow the scope of that delegation.
We specifically entrust these agencies, not the courts, with broad
policymaking authority.
Yet, by removing constraints on judicial review of agency action,
H.R. 4768 would empower generalist and unelected courts to nullify
agency action solely on policy grounds, substituting the administrative
record with their own policy preferences.
Such authority would go beyond the traditional bounds of the judicial
role, as the federal courts themselves have thus far recognized through
their deference to agencies.
H.R. 4768 would upend the careful and longstanding balance among the
three branches of government, all in the name of serving anti-
regulatory corporate interests.
In addition, H.R. 4768 would encourage judicial activism.
By eliminating judicial deference, the bill would effectively empower
the courts to make public policy from the bench even though they may
lack the specialized expertise and democratic accountability that
agencies possess, through delegated authority from and oversight by the
American people's elected representatives.
Although the Supreme Court has had numerous opportunities to expand
judicial review of rulemaking, thankfully the Court has rejected this
approach in recognition of the fact that generalist courts simply lack
the subject-matter expertise of agencies, are politically
unaccountable, and should not engage in making substantive
determinations from the bench.
It is somewhat ironic that some who have long decried ``judicial
activism'' would now support facilitating a greater role for the
judiciary in agency rulemaking.
Finally, H.R. 4768 would result in regulatory paralysis and thereby
undermine public health and safety.
Regulations are the result of years--very often many years--of
careful deliberation and expert analysis. Typically, after an agency
first proposes a rulemaking, it must solicit public comment. The agency
then analyzes this input and, after further deliberation, promulgates a
final rule. Additionally, for certain rules, agencies must undergo
further procedures, such as conducting a cost-benefit analysis and a
separate analysis of the rule's potential impact on small businesses.
This is a time-consuming process that some believe is already too
inflexible.
According to a new report issued just last month by Pubic Citizen,
the time it takes for agencies to issue regulations has grown to
unprecedented lengths.
So far this year, for example, economically significant regulations
have taken an average of 3.8 years to complete, which is nearly an
entire presidential term.
In recognition of the fact that agencies spend years formulating
rules and have the specialized substantive expertise to do so, the
courts have long applied the rule of judicial deference.
Essentially, this means that the court, in reviewing a rulemaking,
will not substitute its policy preferences for that of the agency.
Yet, H.R. 4768 would overturn this longstanding practice and, in its
stead, require federal courts to review all agency rulemakings and
interpretations of statutes on a de novo basis.
In effect, the bill would empower a judge to ignore the
determinations of agency experts and to substitute his or her judgment,
without regard to the judge's technical knowledge or understanding of
the underlying subject matter.
By eliminating judicial deference, the bill will force agencies to
adopt even more detailed factual records and explanations, which would
further delay the finalization of what might be critical life-saving
regulations.
And, worst of all it will further encourage some well-funded
corporate interests to engage in dilatory litigation challenging agency
action in order to derail regulations.
As it is, large corporate interests--devoted only to maximizing
profits--already have an unfair advantage in their ability to weaken
regulatory standards by burying an agency with paperwork demands and
litigation.
Rather than giving more opportunities for corporate interests to
derail rulemakings, we should be evaluating ways to ensure that the
voices of the general public have a greater role in the rulemaking
process.
We are talking about regulations that protect the quality of the air
we breathe, the water we drink, and the food we consume.
Slowing down the rulemaking process means that rules intended to
protect the health and safety of American citizens will take longer to
promulgate and become effective, thereby putting us all at possible
risk.
Given these concerns and others presented by the bill, I accordingly
must oppose H.R. 4768 and I urge my colleagues to vote against this
seriously flawed measure.
Mr. GOODLATTE. Mr. Chairman, I yield 2 minutes to the gentleman from
Georgia (Mr. Allen).
Mr. ALLEN. Mr. Chairman, I rise today in support of the Separation of
Powers Restoration Act, legislation that works to scale back the power
of the administration's regulatory agencies and, instead, returns the
interpretation of laws to the courts.
For too long, unelected Federal bureaucrats have been running rampant
on our Constitution, taking interpretations of the law further than
Congress intended them.
If you would have told me that 90 percent of my time here in Congress
would be spent fighting Federal agencies' overreach, I would have
thought you were joking, but that is the truth. It is sad.
Our Founding Fathers never intended for faceless bureaucrats to have
this power. The power of lawmaking is in this body.
There are many examples out there as well, not only the coal
industry. You know, West Virginia had the tenth best economy in this
Nation just 10 years ago. Now it is the worst economy in the Nation.
I have got lots of electric membership corporations in my district
and, you know, they spent billions of dollars upgrading their coal-
powered plants, but they continue to be harassed by the EPA.
It is time that this agency top-down approach is dealt with. It is
not in the best interest of the folks in Georgia, in the 12th District
of Georgia, let alone the rest of the country.
It is time to get back to Congress writing the laws and the courts
interpreting them, and to dismantle the growing fourth branch of this
government. I am proud to support this legislation that gives Federal
agencies a reality check.
We wonder why the economy is not growing. Everywhere I go, people say
that the biggest restriction on this economy is the regulatory
overreach. We must stop this, and that is why I am proud to support the
Separation of Powers Restoration Act.
Mr. JOHNSON of Georgia. Mr. Chairman, America is facing so many
important issues that need to be addressed that this Congress refuses
to address, and so it tenders do-nothing bills like this that are going
absolutely nowhere, not going to pass in the Senate, and if it did, it
would not be signed by the President. But still this do-nothing
Congress persists in acting in this way.
[[Page H4619]]
Mr. Chairman, I yield 5 minutes to the gentlewoman from the great
State of Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Chairman, let me thank the gentleman from
Georgia (Mr. Johnson) for his leadership of the subcommittee from which
this legislation, I believe, has found its journey. Let me also
acknowledge my colleague from Texas.
On the Judiciary Committee, we have the benefit of the counsel of
nonlawyers. It is a new phenomenon. When I first came on, we had only
lawyers on the committee.
But as a lawyer who remembers sitting in an administrative procedure
law class by a seasoned senior professor at the University of Virginia
Law School, I remember he was embedded for decades, and managed to make
the Administrative Procedure Act interesting. And the one thing I knew,
even as a younger law student, the APA, for 70 years--at that time it
hadn't reached 70--had served and guided administrative agencies and
the affected public in a manner that is flexible enough to accommodate
the variety of agencies operating under it, inclusive of changes
through time.
So what saddens me as a person who enjoyed many aspects of law school
and understands and enjoys the deliberation of issues dealing with the
question of law is the complete skewing in spite of my friends who view
this as remedy. And I would just like to offer them my thoughts as to
why this is not: because the legislation would allow Federal courts
reviewing an agency action to conduct a de novo review of all relevant
questions of law without deferring to the legal interpretation of the
agency.
Now, let me be very clear. I am a student of the three branches of
government. I appreciate my colleagues'--in this instance,
Republicans'--concern about the sanctity of the three branches of
government as evidenced by the Constitution. But in that structure, we
developed agencies to have expertise; not to not be challenged, but to
have expertise. And I want those listening to understand that I respect
that expertise, but I respect the challenge.
But what this particular legislation is doing is that de novo, my
friends, of course, is starting from scratch. So that means a
regulation by the Department of Homeland Security--I am on the Homeland
Security Committee, this agency created after 9/11. And in the backdrop
of what we have faced, the heinous acts of Dallas, 5 fallen officers,
12 persons shot--now, we can't claim this recent incident. Allow me to
offer my sympathy to those in Michigan, two bailiffs, and I don't know
how many others may be shot and killed.
But we know that we are in a different framework of dealing with
security in this country. Some of these are a regulatory scheme through
the Homeland Security Department, Transportation Security
Administration. And to take that expertise on behalf of the American
people and, as they say, throw the baby out with the bathwater, say to
the courts that do not have a discernible expertise--our judges are
quite skilled, but they are not the experts in every aspect of how this
government runs.
Members of Congress have to brief themselves to be able to assess
what is going on in the government, and we have that responsibility.
But you are asking the courts now to undo every regulation and become
the expert on Federal lands, public lands, on Environmental Protection
Agency issues, on Health and Human Services issues, on issues dealing
with homeland security, on issues dealing with education.
This is untenable, Mr. Chairman. This will not work. And I just want
to cite to you from a number of groups that have come together. The
Coalition for Sensible Safeguards says: ``Congress should be looking
for ways to strengthen our country's regulatory system by identifying
gaps and instituting new safeguards for the public. Unfortunately, this
legislation does the opposite by ensuring more delays.''
Let me clarify their language, because I will go a little further. I
would be willing to look at filling the holes.
The CHAIR. The time of the gentlewoman has expired.
Mr. JOHNSON of Georgia. Mr. Chairman, I yield an additional 2 minutes
to the gentlewoman from Texas.
Ms. JACKSON LEE. I would be willing to look at discussing this
further by looking at what are the holes, where do we think we are not
being effective on behalf of the American people. That is reasonable
legislation and legislative discourse, if you will.
But I can't look at something that tells me that I have got to take
something involving the Children's Health Insurance Program or the 1191
waiver that deals with Medicaid, and I have got to untangle it, go into
a court because someone challenged it, and I have got people waiting in
line for healthcare relief and hospitals that are looking for payment
on uncompensated care, and I have got a court that has to now ramp up.
And individual courts don't have the vastness of research that agencies
have to be experts on health care and to be experts on a variety of
issues that are so very important to us.
I would hope that we can send this legislation back. I hope that we
could look--what are we trying to fix?
I think the three branches of government are very clear. We
legislate, the executive has its powers, and there are agencies. But
the citizens have a right to seek a review of a regulatory structure or
a regulation. They have judicial review.
Section 702 of the APA, in its current form, subjects agency
rulemaking to judicial review for any person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute. Courts in particular
retain an important role in determining whether an agency is
permissible, arbitrary, or capricious.
Mr. Chairman, that is within the context of what this Administrative
Procedure Act does. It has been effective for 70 years plus. And what
we are doing is--we are not detangling. We are tangling, and we are
blocking the good government work that these agencies do to help the
American people be safe in water, in the environment, in public lands,
in security.
I ask my colleagues, let's go back to the drawing board before we
move forward on this legislation.
Mr. Chair, I stand in opposition to H.R. 4768, the Separation of
Powers Restoration Act of 2016, a bill to address purported
constitutional and statutory deficiencies in the judicial review of
agency rulemaking.
I am opposed to H.R. 4768 because this bill is unfortunately deeply
flawed and harmful to our nation's fundamental and well-established
federal rulemaking process.
Specifically, H.R. 4768 would abruptly shift the scope and authority
of judicial review of agency actions away from federal agencies by
amending Section 706 of the Administrative Procedures Act (APA) to
``require that courts decide all relevant questions of law, including
all questions of interpretation of constitutional, statutory, and
regulatory provisions, on a de novo basis without deference to the
agency that promulgated the final rule''.
Effectively, H.R. 4768 would abolish judicial deference to agencies'
statutory interpretations in federal rulemaking and create harmful and
costly burdens to the administrative process.
Enacted in 1946, the APA establishes the minimum rulemaking and
formal adjudication requirements for all administrative agencies.
And for the past 70 years the APA has served and guided
administrative agencies and the affected public in a manner that is
flexible enough to accommodate the variety of agencies operating under
it inclusive of changes through time.
In addition to the APA, numerous other procedural and analytical
requirements have been imposed on the rulemaking process by Congress
and various presidents.
Generally, agencies' development of new rules is an extensive process
that is fully vetted with appropriate avenues for judicial relief where
necessary.
Namely, Section 702 of the APA in its current form subjects agency
rulemaking to judicial review for ``any person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute.''
Courts in particular retain an important role in determining whether
an agency action is permissible, arbitrary, or capricious.
And while, the APA requires reviewing courts to decide all relevant
questions of law, interpret statutes, and determine the meaning of
agency action, it is well-established that courts ``must give
substantial deference to an agency's interpretation of its own
regulations.''
Indeed, the Supreme Court has routinely observed that the scope of
judicial review is narrow and a court is not to substitute its judgment
for that of the agency.
Rather, it is well-settled that courts must give considerable weight
to an agency's construction of a statute it administers.
[[Page H4620]]
Such deference was established as bedrock administrative law in the
1984 Supreme Court case Chevron v. Natural Resources Defense Council,
now known as the Chevron deference.
Chevron deference has been upheld by hundreds of federal courts since
and has been endorsed by both conservative and liberal Supreme Court
justices and federal court judges.
H.R. 4768 would override the Chevron doctrine enabling courts to
ignore administrative records and expertise and to substitute their own
inexpert views and limited information.
Such a measure would radically transform the judicial review practice
and make the rulemaking process more costly and time-consuming by
forcing agencies to adopt more detailed factual records and
explanations, effectively imposing more procedural requirements on
agency rulemaking.
This cumulative burden would have the effect of further ossifying the
rulemaking process or dissuading agencies from undertaking rulemakings
altogether.
H.R. 4768 marks an unprecedented and dangerous move away from
traditional judicial deference towards a system of that would enhance
powers for corporate lobbyists and weaken protections for consumers and
working families.
Congressional consideration for an enhanced judicial review standard
or a legislative override of judicial deference is not one we are
unfamiliar with--but it is a matter we have long ago rejected along
with our nation's leading administrative law scholars and experts.
H.R. 4768 is an unnecessary and misguided bill that would burden the
rulemaking process and not simplify it.
For these reasons, I am opposed to H.R. 4768.
Mr. GOODLATTE. Mr. Chairman, I believe that this side has the right
to close, and I have one speaker remaining, so we are prepared to close
whenever the gentleman from Georgia is ready.
I reserve the balance of my time.
Mr. JOHNSON of Georgia. Mr. Chairman, I yield to the gentlewoman from
Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Chairman, I include in the Record the Statement
of Administration Policy, the President's veto threat on this bill, and
also a letter from the Coalition for Sensible Safeguards.
Statement of Administration Policy
H.R. 4768--Separation of Powers Restoration Act of 2016--(Rep.
Ratcliffe, R-TX, and 113 cosponsors)
The Administration strongly opposes House passage of H.R.
4768, the Separation of Powers Restoration Act of 2016,
because it would unnecessarily overrule decades of Supreme
Court precedent, it is not in the public interest, and it
would add needless complexity and delay to judicial review of
regulatory actions. This legislation would allow Federal
courts reviewing an agency action to conduct de novo review
of all relevant questions of law without deferring to the
legal interpretation of the agency. Both Federal statutes and
case law provide Federal courts with the appropriate tools to
review regulatory actions and afford appropriate deference to
the expertise of the agencies that promulgated the rules and
regulations under review.
If the President were presented with H.R. 4768, his senior
advisors would recommend he veto the bill.
____
Re: Mark-up on Separation of Powers Restoration Act (H.R.
4768)
Hon. Robert Goodlatte,
Chairman, Judiciary Committee,
Washington, DC.
Hon. John Conyers,
Ranking Member, Judiciary Committee, Washington, DC.
Dear Representatives: The Coalition for Sensible Safeguards
(CSS), which includes more than 150 diverse labor, consumer,
public health, food safety, financial reform, faith,
environmental and scientific integrity groups representing
millions of Americans, urges members of this committee to
oppose the Separation of Powers Restoration Act (H.R. 4768).
Congress should be looking for ways to strengthen our
country's regulatory system by identifying gaps and
instituting new safeguards for the public. Unfortunately,
this legislation does the opposite by ensuring even more
delays in new public health, safety, and financial security
protections for the public.
The legislation will make our system of regulatory
safeguards weaker by allowing for judicial activism at the
expense of agency expertise and congressional authority,
thereby resulting in unpredictable outcomes and regulatory
uncertainty for all stakeholders. If passed, this legislation
would rob the American people of many critical upgrades to
public protections, especially those that ensure clean air
and water, safe food and consumer products, safe workplaces,
and a stable, prosperous economy.
This radical legislation would reverse a fundamental and
well-settled legal principle that has long successfully
guided our regulatory system. It would abolish judicial
deference to agencies' statutory interpretations in
rulemaking by requiring a court to decide all relevant
questions of law de novo, including all questions concerning
the interpretation of constitutional, statutory, and
regulatory provisions of final agency actions. Such deference
was established as bedrock administrative law by the Supreme
Court in the 1984 case Chevron v. Natural Resources Defense
Council and came to be referred to as Chevron deference.
Chevron deference has been upheld by hundreds of federal
courts since and has been endorsed by both conservative and
liberal Supreme Court justices and federal court judges.
In practice, abolishing Chevron deference will make the
current problems in our country's broken regulatory process
much worse in several ways. H.R. 4768 will lead to even more
regulatory delays, particularly for those ``economically
significant'' or ``major'' new rules that provide the
greatest benefits to the public's health, safety, and
financial security. The examples of regulatory paralysis are
ubiquitous and impossible to ignore.
In the energy sector, offshore drilling safety measures to
address the cause of the BP oil spill in the Gulf, new safety
standards to prevent oil train derailments and explosions,
and new energy efficiency standards to benefit consumers all
took far too long to finalize and benefit the public.
In the food safety sector, implementation of the Food
Safety Modernization Act was finally completed last week,
despite agencies missing every statutory deadline and
numerous tainted food scandals in the interim.
In the banking sector, a significant portion of the Dodd-
Frank Wall Street Reform Act has yet to be finalized, or in
some cases, even proposed, despite the law's enactment almost
six years ago.
The delays in new protections for the public are systemic,
touching virtually every agency and regulatory sector. A
recent study by a conservative think tank found that federal
agencies have only been able to meet half of the rulemaking
deadlines Congress has set out for them over the last twenty
years.
There is substantial academic literature and expert
consensus that intrusive judicial scrutiny of agency
rulemaking is one of the main drivers of regulatory
paralysis. Thus, increasing litigation risk for agency rules,
which is exactly what this bill would accomplish by spawning
hundreds of new lawsuits per year, will mean many more missed
congressional deadlines and a regulatory process this is
unable to act efficiently and effectively in protecting the
public as Congress requires. This further ``chilling'' of
rulemaking will certainly benefit Big Business lobbyists and
lawyers who will further pressure regulators to carve out
loopholes, weaken safety standards, or otherwise obstruct new
rulemakings with the greatly enhanced threat of a lawsuit
waiting in the wings.
Additionally, eliminating judicial deference to agency
rulemaking would be tantamount to ringing the dinner bell for
judicial activism by empowering reviewing courts to
substitute their policy preferences for those of the agency.
One of the primary policy rationales for Chevron deference is
that agencies have considerable and superior expertise in the
regulatory sectors they oversee as compared to generalist
judges. Thus, H.R. 4768 would make it easier for the courts
to overturn an agency's highly technical, resource-intensive,
and science-based rulemakings without the expertise needed to
make such determinations.
Further, judicial activism would impact Congressional
authority, curtailing it rather than enhancing it, an irony
given the name of the bill. The de novo review of the scope
and nature of Congressional grants of authority to agencies
will invite courts to create law, ignore congressional
intent, or both. Again, the bill will allow judges to simply
replace congressional intent with the judges' own
construction of the statute or policy preferences with
respect to congressional objectives.
Perhaps the most telling critique of attempts to replace
Chevron deference with de novo review comes from former
Justice Antonin Scalia, an aggressively vocal supporter of
Chevron deference during his career and an indication of just
how broad and mainstream the support is for maintaining such
deference. Writing for the majority in City of Arlington v.
F.C.C., Justice Scalia argued that requiring that ``every
agency rule must be subjected to a de novo judicial
determination'' without any standards to guide this review
would result in an ``open-ended hunt for congressional
intent,'' rendering ``the binding effect of agency rules
unpredictable and destroy the whole stabilizing purpose of
Chevron. The excessive agency power that the dissent fears
would be replaced by chaos.''
H.R. 4768 marks an unprecedented and dangerous move away
from traditional judicial deference towards a system of
enhanced powers for Big Business lobbyists and weakened
protections for consumers and working families. CSS urges
members of the committee to reject the Separation of Powers
Restoration Act, (H.R. 4768).
Sincerely,
Robert Weissman,
President, Public Citizen, Chair,
Coalition for Sensible Safeguards.
{time} 1815
Mr. JOHNSON of Georgia. Mr. Chairman, I yield 3 minutes to the
gentleman from Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Chairman, I thank my friend from Georgia.
[[Page H4621]]
Members of the House, I am not alone in opposing H.R. 4768. In
recognition of the many serious concerns presented by it, the Coalition
for Sensible Safeguards, an alliance of more than 150--150--consumer,
labor, research, faith, and other public interest groups, strongly
opposes this legislation. These are, in effect, the good guys: Public
Citizen, the AFL-CIO, the Service Employees International Union, the
United Steelworkers, the Center for Progressive Reform, the Consumers
Union, the Consumer Federation of America, the Natural Resources
Defense Council, the Sierra Club, and many, many more.
In addition, leading administrative law scholars also oppose H.R.
4768 because it will further delay the rulemaking process and because
it presents separation of powers concerns.
Like me, these organizations and scholars know that this bill will
weaken the regulatory system by supplanting agency expertise and
congressional authority with judicial activism.
In closing, I urge my colleagues to join me in opposing H.R. 4768, a
bill that, without a doubt, would undermine public health and safety
and undermine our regulatory safety net.
Mr. Chairman, I thank Mr. Johnson for the great job he has done here
on the floor and ask him to close this debate.
Mr. JOHNSON of Georgia. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, in sum, it is indeed ironic that the so-called
Separation of Powers Restoration Act actually raises separation of
powers concerns by yielding legislative power over to the judicial
branch. This is, in part, why there are so many alliances of labor
organizations, consumer organizations, environmental action
organizations, and others that strongly oppose this legislation.
I include in the Record a July 11, 2016, letter from Consumers Union
opposing this legislation, along with a letter from the Natural
Resources Defense Council opposing this legislation.
ConsumersUnion,
July 11, 2016.
Dear Representative: ConsumersUnion, the policy and
advocacy division of Consumer Reports, urges you to oppose
H.R. 4768 when it comes to the floor. Although titled the
``Separation of Powers Restoration Act,'' we are concerned
that the bill would have the opposite effect, upending the
well-developed constitutional balance between the
legislative, executive, and judicial branches. The bill could
severely impair effective and well-considered regulatory
agency enforcement of critical safety, health, environmental,
and market protections on which consumers depend.
Courts giving appropriate deference to reasonable agency
interpretations of their statutes, as reflected in Chevron
U.S.A., Inc., v. NRDC, 467 U.S. 837 (1984), is a well-settled
approach to promote both sound and efficient agency
enforcement and effective judicial review. This approach has
legal roots going back decades, even to the earliest days of
our nation.
The courts have full judicial power to review agency legal
interpretations. The Chevron doctrine embodies a judicial
recognition, based on experience, that courts do not need to
exercise this judicial power de novo on each and every
question of law that comes before them. The courts are in no
way precluded from doing so when that is warranted. The
agency must give a reasoned explanation for its judgment, but
Chevron says the court should not simply substitute its
judgment for the agency's.
The Chevron doctrine recognizes that, as a general matter,
an agency that deals with a statute day in and day out, year
in and year out--applying the dedicated efforts and sustained
attention of agency personnel with specialized subject matter
expertise in all relevant disciplines, and with input from
stakeholders and members of the public, received and
considered in open rulemakings--develops valuable insight
into the law it is entrusted with administering. Chevron
recognizes that this insight generally warrants the respect
and deference of the reviewing courts of general
jurisdiction, which have no such resources, dedicated
personnel, specialized expertise, or sustained attention over
time.
Again, in situations where the court has sufficient basis
to conclude that deference is not warranted, it has full
authority to not defer. Likewise, if Congress determines that
the agency has acted in a manner inconsistent with
congressional intent--or if Congress decides to clarify or
even change its intent in light of some agency action--
Congress can amend the statute and provide a clearer
directive. But Congress cannot realistically be expected to
clearly address in advance every conceivable contingency that
may arise in the administration and enforcement of the
statutes it enacts. The agencies that are specifically tasked
with administering and enforcing those statutes are in the
best position to ensure that the law functions effectively.
Indeed, that has traditionally been regarded as their
foremost responsibility--to help the President take care that
the laws be faithfully executed.
In City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1874
(2013), the Supreme Court starkly described the alternative
to Chevron: ``Thirteen Courts of Appeals applying a totality-
of-the-circumstances test would render the binding effect of
agency rules unpredictable and destroy the whole stabilizing
purpose of Chevron. The excessive agency power that the
dissent fears would be replaced by chaos.''
In addition to injecting this unpredictability into every
agency decision, and increasing the complexity of every
rulemaking, the change proposed by this legislation would add
needless new burdens to our already overworked courts,
impeding their important work as well.
In sum, this legislation is unnecessary, could do severe
damage to the proper functioning of our government, and could
severely weaken a wide range of fundamental protections on
which consumers rely.
For these reasons, we urge you to oppose this bill.
Respectfully,
George P. Slover,
Senior Policy Counsel,
ConsumersUnion.
____
NRDC.
Dear Representative: H.R. 4768, the so-called ``Separation
of Powers Restoration Act of 2016,'' is a deeply flawed and
harmful bill that should not become law. The more appropriate
title should be instead ``The More Judicial Activism Act.''
The legislation overthrows a longstanding and well-founded
framework for legislation and judicial review--and
establishes a framework that would give huge new power to
unelected judges to nullify policies of the Executive Branch
and the Congress alike.
For decades, Congress has written our laws, and the
President has executed them, on a very straightforward
platform: When Congress writes a statute in unmistakable
terms, reflecting a clear policy intent, executive branch
agencies are bound to follow those terms and that intent
exactly. When Congress legislates in flexible or ambiguous
terms, it does so knowing that it has not addressed every
contingency, and it is delegating some measure of decision
making to executive agencies. At any time, Congress can
always have the last word; whenever Congress agrees that an
agency erred, it can adopt new legislation to set things back
on course. This common-sense framework allows the political
branches to fashion fair and effective laws that keep
functioning in a changing world where no Congress can address
every contingency in advance or make every detailed decision
that has to be made in real time.
This framework is sometimes called the Chevron doctrine
after the famous 1984 Supreme Court case at which H.R. 4768
takes aim. But the framework actually goes back many decades
farther--indeed to the foundations of our republic. The
Supreme Court and lower federal courts have long understood
that while they must hold government action to the law, it
isn't the job of unelected judges to substitute their policy
judgments for those of the political branches--whether
Congress or the President.
H.R. 4768 would throw our country's sacred tradition of
judicial restraint to the winds. It would permit unelected
judges to substitute their own policy preferences, and to
overrule scientists, economists, engineers and other experts
based on their own inexpert and limited views and
information.
Empowering judges to make their decisions ``de novo,''
without regard to experts and without regard to the leaders
of either political branch, is the very definition of
judicial activism. This should be anathema to conservatives
and liberals alike.
Justice Scalia has spoken eloquently on the consequences of
ignoring Chevron. In the case City of Arlington, Tex. v. FCC,
he described a world where all the courts of appeals
undertake de novo reviews of agency interpretations of
statutes in a judicial search for congressional intent or
what judges consider more ``reasonable.'' Ruling for the
majority Justice Scalia wrote:
``Rather, the dissent proposes that even when general
rulemaking authority is clear, every agency rule must be
subjected to a de novo judicial determination of whether the
particular issue was committed to agency discretion. It
offers no standards at all to guide this open-ended hunt for
congressional intent (that is to say, for evidence of
congressional intent more specific than the conferral of
general rulemaking authority). It would simply punt that
question back to the Court of Appeals, presumably for
application of some sort of totality-of-the-circumstances
test--which is really, of course, not a test at all but an
invitation to make an ad hoc judgment regarding congressional
intent. Thirteen Courts of Appeals applying a totality-of-
the-circumstances test would render the binding effect of
agency rules unpredictable and destroy the whole stabilizing
purpose of Chevron. The excessive agency power that the
dissent fears would be replaced by chaos.''
City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1874
(2013) (emphases in original).
The bill envisions allowing a single federal district
judge, or a panel of three appellate judges, to simply set
aside the product of years of federal rulemaking following
rounds of public notices, proposals, stakeholder engagement,
public hearings and public comments, and final decisions
based on detailed
[[Page H4622]]
records and explanations, all conducted by agency officials
with subject matter expertise that courts lack in the
sciences, medicine, engineering, statistics, accounting,
economics and financial markets, and the full gamut of
professional disciplines.
Because the policy preferences of individual judges will
matter more than ever, litigants will spend even more time
and effort forum shopping for their favorite judges. On top
of these ills, de novo judicial review of vast administrative
records would further slow the wheels of the American legal
system, to the detriment of every business or individual
trying to get justice from our crowded and overworked courts.
What is most surprising is to see support for this bill
from traditional opponents of judicial activism. Some
supporters appear to favor the bill because they hope to undo
burdens on businesses. In doing so, they are willing to
sacrifice food safety; clean air and water; worker
protections; safeguards against discrimination; and even the
stability and security of our banks and financial
institutions.
It should be noted, however, that the bill would also allow
unelected judges to overrule the decisions of future
conservative administrations. It is worth remembering that
NRDC was the losing party in the Chevron decision. If this
bill had then been law, the Reagan administration's effort to
streamline pollution controls for new factories would likely
have been overturned, not upheld as it was by the Supreme
Court.
Our Constitution puts elected officials in charge to give
political accountability. Turning over the authority to
unelected and non-expert judges should not be an option. We
urge all members to oppose H.R. 4768.
Mr. JOHNSON of Georgia. Lastly, I would point out that there is a
strongly worded veto threat by the President about this legislation
should it ever find its way to the Senate and to the President's desk.
The President points out that this legislation is not in the public
interest and that it would add needless complexity and delay to the
judicial review of regulatory actions. For those reasons, among other
things, he has issued a veto threat.
So this is a piece of legislation that is a messaging piece. My
friends on the other side of the aisle know that it is not going
anywhere, but it is promoting their message, which is deregulation.
Despite all of the regulation and legislation needed to address
pertinent issues that the American people are demanding action on right
now--the Zika virus, Puerto Rico, gun violence, and gun reform
legislation--there are so many other things that we could and should be
working on, but instead we are enthralled here with these messaging
bills that are not going anywhere.
Mr. Chairman, I yield back the balance of my time.
Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may
consume.
The list of organizations that stand up for separation of powers,
that stand up for liberty, and that stand up for common sense is long.
It includes the American Farm Bureau Federation, TechFreedom, the
American Consumer Institute, Americans for Tax Reform, the Center for
Freedom and Prosperity, Competitive Enterprise Institute, Digital
Liberty, Free the People, the Independent Women's Forum, Institute for
Liberty, the Mississippi Center for Public Policy, the National
Taxpayers Union, Protect Internet Freedom, the Taxpayers Protection
Alliance, and Tech Knowledge, just to name some.
Mr. Chairman, this legislation is very important. It will pass this
House with a strong vote. It needs to be taken up by the United States
Senate. It needs to be signed into law by the President of the United
States, but it will also be heard across the street at the United
States Supreme Court, where I know there are Justices who know that the
Chevron doctrine needs to be reconsidered because it is an abandonment
of the responsibility and the power of the judicial branch of our
government to cede this kind of power and this kind of authority to the
bureaucracy. It is wrong; it needs to be overturned; and I urge my
colleagues to vote to do so tonight.
Mr. Chairman, I yield back the balance of my time.
Mr. GOODLATTE. Mr. Chairman, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Ratcliffe) having assumed the chair, Mr. Rigell, Chair of the Committee
of the Whole House on the state of the Union, reported that that
Committee, having had under consideration the bill (H.R. 4768) to amend
title 5, United States Code, with respect to the judicial review of
agency interpretations of statutory and regulatory provisions, had come
to no resolution thereon.
____________________