[Congressional Record Volume 162, Number 111 (Monday, July 11, 2016)]
[House]
[Pages H4651-H4657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              SEPARATION OF POWERS RESTORATION ACT OF 2016

  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 further consideration of the bill, 
H.R. 4768.
  Will the gentleman from Michigan (Mr. Moolenaar) kindly take the 
chair.

                              {time}  2027


                     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 further 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. Moolenaar (Acting Chair) in the chair.
  The Clerk read the title of the bill.
  The Acting CHAIR. When the Committee of the Whole rose earlier today, 
all time for general debate had expired.
  Pursuant to the rule, the bill shall be considered for amendment 
under the 5-minute rule.
  It shall be in order to consider as an original bill for the purpose 
of amendment under the 5-minute rule the amendment in the nature of a 
substitute recommended by the Committee on the Judiciary, printed in 
the bill. The committee amendment in the nature of a substitute shall 
be considered as read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

[[Page H4652]]

  


                               H.R. 4768

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Separation of Powers 
     Restoration Act of 2016''.

     SEC. 2. JUDICIAL REVIEW OF STATUTORY AND REGULATORY 
                   INTERPRETATIONS.

       Section 706 of title 5, United States Code, is amended--
       (1) by striking ``To the extent necessary'' and inserting 
     ``(a) To the extent necessary'';
       (2) by striking ``decide all relevant questions of law, 
     interpret constitutional and statutory provisions, and'';
       (3) by inserting after ``of the terms of an agency action'' 
     the following ``and decide de novo all relevant questions of 
     law, including the interpretation of constitutional and 
     statutory provisions, and rules made by agencies. 
     Notwithstanding any other provision of law, this subsection 
     shall apply in any action for judicial review of agency 
     action authorized under any provision of law. No law may 
     exempt any such civil action from the application of this 
     section except by specific reference to this section''; and
       (4) by striking ``The reviewing court shall--'' and 
     inserting the following:
       ``(b) The reviewing court shall--''.

  The Acting CHAIR. No amendment to the committee amendment in the 
nature of a substitute shall be in order except those printed in House 
Report 114-641. Each such amendment may be offered only in the order 
printed in the report, by a Member designated in the report, shall be 
considered read, shall be debatable for the time specified in the 
report, equally divided and controlled by the proponent and an 
opponent, shall not be subject to amendment, and shall not be subject 
to a demand for division of the question.


           Amendment No. 1 Offered by Mr. Johnson of Georgia

  The Acting CHAIR. It is now in order to consider amendment No. 1 
printed in House Report 114-641.
  Mr. JOHNSON of Georgia. Mr. Chairman, as the designee of the 
gentleman from Michigan (Mr. Conyers), I offer an amendment.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 3, line 11, insert after ``extent necessary'' the 
     following ``, and except as otherwise provided in this 
     section''.
       Page 4, line 3, insert after the period at the end the 
     following:

     SEC. 3. EXCEPTED RULES.

       Section 706 of title 5, United States Code, as amended by 
     this Act, is further amended by adding at the end the 
     following:
       ``(c) In the case of a rule made by the Administrator of 
     the Environmental Protection Agency pertaining to regulation 
     of lead or copper in drinking water, to the extent necessary 
     to decision and when presented, the reviewing court shall 
     decide all relevant questions of law, interpret 
     constitutional and statutory provisions, and determine the 
     meaning or applicability of the terms of an agency action.''.

  The Acting CHAIR. Pursuant to House Resolution 796, the gentleman 
from Georgia (Mr. Johnson) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Georgia.
  Mr. JOHNSON of Georgia. Mr. Chair, the Conyers amendment would exempt 
from H.R. 4768, the Separation of Powers Restoration Act of 2016, 
regulations promulgated by the Environmental Protection Agency that 
protect drinking water from lead and copper contamination.

                              {time}  2030

  The Conyers amendment does not address a hypothetical concern. The 
recent lead-contaminated water crisis that occurred in Flint, Michigan, 
is only the latest in a history of cases of contaminated drinking 
water.
  Without question, the Flint crisis was a preventable public health 
disaster. The lead contamination occurred because an unelected and 
unaccountable emergency manager decided to switch the city's water 
source to the Flint River without there being the benefit of proper 
corrosion control. As a result, corrosive water leached highly toxic 
lead from residents' water pipes, exposing thousands of children to 
lead, which, in turn, can cause permanent developmental damage.
  While much of the blame for the Flint water crisis rests with 
unelected bureaucrats who prioritized saving money over saving lives, 
the presence of lead in drinking water is not unique to Flint. The 
drinking water of potentially millions of Americans may be contaminated 
by lead. In fact, just last month, elevated lead levels were detected 
in the drinking water supplied to the Cannon House Office Building 
right here on Capitol Hill.
  It is a commonsense amendment, and it is common sense that urgent 
rulemakings, such as the EPA's proposed revisions to its Lead and 
Copper Rule, must not be impeded or delayed by measures such as H.R. 
4768. Even before the Flint water crisis, the Agency had begun the 
process of updating this Rule, which was originally promulgated in 1991 
after years of analysis.
  Rather than hastening this rulemaking, however, H.R. 4768 would have 
the opposite effect. The bill would empower well-funded business 
interests to seek the judicial review of any regulation they opposed by 
a generalist, politically unaccountable court that lacks the requisite 
scientific or technical knowledge. The court could then make its own, 
independent determination based on its nonexpert views and limited 
information as to whether the Agency's proposed regulation is 
warranted.
  The Conyers amendment simply preserves longstanding legal doctrine in 
cases involving the review of regulations that are designed to prevent 
the contamination of drinking water by lead and copper.
  It is critical that Americans have access to safe drinking water, and 
we must not hinder the ability of Federal agencies, such as the EPA, to 
prevent future lead contamination crises, as occurred in Flint. Federal 
judges, who are constitutionally insulated from political 
accountability, should not have the power to second-guess the Agency's 
experts concerning the appropriateness of highly technical regulations 
that are crucial to protecting the health and safety of millions of 
Americans.
  Accordingly, I urge my colleagues to support the Conyers amendment.
  Mr. Chair, I yield back the balance of my time.
  Mr. RATCLIFFE. Mr. Chair, I rise in opposition to the gentleman's 
amendment.
  The Acting CHAIR. The gentleman from Texas is recognized for 5 
minutes.
  Mr. RATCLIFFE. Mr. Chair, the amendment carves out of the bill 
regulations on lead and copper in drinking water. In so doing, it would 
preserve unelected bureaucrats' broad discretion to impose on the 
public overarching statutory and regulatory interpretations in this 
policy area. This amendment would all but guarantee that these 
unaccountable bureaucrats won't have to worry any more than they do 
right now about courts checking on their self-serving interpretations. 
It would let agencies get away with just as much as they do right now 
in basing overreaching regulations on tortured interpretations of 
existing statutes instead of coming to Congress for new legislation 
because the plain terms of existing law really don't support what they 
want to do.
  In short, the amendment seeks to perpetuate the Chevron and our 
doctrine's weakening of the separation of powers, a weakening that 
threatens liberty and that undermines the accountable government of, 
by, and for the people.
  Mr. Chair, no one denies that drinking water regulation is important, 
but no area of regulation is so important that it should allow 
unelected bureaucrats to avoid a vigorous system of checks and balances 
that our Framers intended, a system that this bill would restore. 
Bureaucrats should know that they will face vigorous judicial checks 
and balances when they act so that they have the strongest incentives 
to offer the best possible statutory and regulatory grounds for their 
actions and to carry out the most responsible and fair enforcement 
possible.
  I urge my colleagues to oppose the amendment.
  Mr. Chair, I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Georgia (Mr. Johnson).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. JOHNSON of Georgia. Mr. Chair, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Georgia will 
be postponed.


           Amendment No. 2 Offered by Mr. Johnson of Georgia

  The Acting CHAIR. It is now in order to consider amendment No. 2 
printed in House Report 114-641.

[[Page H4653]]

  

  Mr. JOHNSON of Georgia. Mr. Chair, I rise as the designee of the 
gentlewoman from Texas (Ms. Jackson Lee), who has an amendment at the 
desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 3, line 11, insert after ``extent necessary'' the 
     following ``, and except as otherwise provided in this 
     section''.
       Page 4, line 3, insert after the period at the end the 
     following:

     SEC. 3. EXCEPTED RULES.

       Section 706 of title 5, United States Code, as amended by 
     this Act, is further amended by adding at the end the 
     following:
       ``(c) In the case of a rule made by the Secretary of 
     Homeland Security pertaining to any matter of national 
     security, to the extent necessary to decision and when 
     presented, the reviewing court shall decide all relevant 
     questions of law, interpret constitutional and statutory 
     provisions, and determine the meaning or applicability of the 
     terms of an agency action.''.

  The Acting CHAIR. Pursuant to House Resolution 796, the gentleman 
from Georgia (Mr. Johnson) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Georgia.
  Mr. JOHNSON of Georgia. Mr. Chair, I yield to the gentlewoman from 
Texas (Ms. Jackson Lee).
  Ms. JACKSON LEE. I thank the gentleman from Georgia for standing as 
the amendment was being called up.
  Mr. Chair, I am on the floor. This is the Jackson Lee amendment. I 
hope the Record reflects it and corrects that I am here. The Record 
should be corrected.
  This is an amendment that deals with homeland security, and it 
reflects my general debate statement that there are some restraints 
that this particular legislation has that are not well suited for the 
needs of the American people. In this instance, this particular 
amendment deals with homeland security and the agency rules and 
regulations that are issued by the Department of Homeland Security.
  As currently drafted, H.R. 4768 would shift the scope and authority 
of the judicial review of agency actions away from Federal agencies by 
amending section 706 of the 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.
  I am concerned about the ability of agencies to act in times of 
imminent need to protect citizens, in particular, dealing with homeland 
security and the very climate, Mr. Chair, that we are in as we speak.
  The Jackson Lee amendment is a simple, but necessary, revision that 
would remedy this concern by excluding from the bill cases with rules 
that are made by the Secretary of Homeland Security and that pertain to 
any matter of national security.
  Why can there not be a bipartisan assessment and accepting of this 
particular amendment that deals with the core of our responsibilities 
as President, as the executive, and then as Congress?
  We are destined to be able to secure the security of America. Our 
courts, particularly the Federal courts, are to uphold the 
constitutional authority that is given to the Federal Government under 
the Constitution. The instance, certainly, of national security--the 
protecting of this Nation--is one of those.
  The Constitution begins by saying that we have organized to create a 
more perfect Union. The Declaration of Independence, which is not part 
of the Constitution, indicates the inalienable rights of life, liberty, 
and the pursuit of happiness.
  Liberty is certainly part of security, and I am dismayed by this 
legislation--this onerous burden of having a de novo review of the 
Homeland Security rule to protect the American people. We should have 
learned our lesson after 9/11 for those of us who were here in the 
United States Congress.
  This is no reflection on the good intent of my colleague from Texas. 
I know his intentions are well, but I was here during 9/11. I was in 
this building. I was chased, if you will, by the horrors of those who 
were screaming ``get out'' of the Capitol of the United States with no 
knowledge. Yes, Mr. Chair, as I ran out with other colleagues, leaving 
shoes behind and literally running on one foot versus two feet, I could 
see the billowing smoke from the Pentagon.
  What was in the air was the question of: Is it the White House next? 
Is it the State Department next? Is it my hometown of Houston--the 
energy capital, in essence, of the world?
  These are the questions of security that the American people realize 
are real. And certainly in the backdrop of these tragic mass shootings 
and the involvement of the Homeland Security Department, I can make the 
very strong point that the Jackson Lee amendment is an amendment that 
should be considered seriously because a de novo review on a Homeland 
Security regulation is a difficult process to take in light of the 
responsibilities of national security.
  My amendment would keep in place the appropriate and needed expertise 
and specialized abilities of the Department of Homeland Security to 
make the rules and regulations that are necessary for our Nation's 
security; so I ask my colleagues to support the Jackson Lee amendment.
  Mr. Chair, I would like to thank Chairman Sessions and Ranking Member 
Slaughter for making my amendment in order.
  The Jackson Lee Amendment Number 2 exempts from the bill rules issued 
by the Department of Homeland Security.
  H.R. 4768 purports to address constitutional and statutory 
deficiencies in the judicial review of agency rulemaking.
  As currently drafted H.R. 4768 would 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.
  Mr. Chair, I am concerned about the ability for agencies to act in 
times of imminent need to protect citizens.
  In particular, H.R. 4768 would make sweeping and dangerous changes 
that would jeopardize the ability of the Department of Homeland 
Security to protect our nation in times of urgent and imminent need.
  The Jackson Lee Amendment Number 2 is a simple but necessary revision 
that would remedy this concern by excluding from the bill cases with 
rules made by the Secretary of Homeland Security and pertaining to any 
matter of national security.
  As a Senior Member of the Homeland Security Committee, I understand 
the many challenges the Department of the Homeland Security (DHS) 
already faces and its critically important role in preventing terror 
threats and keeping Americans safe.
  The Department is the first line of defense in protecting the nation 
and leading recovery efforts from all-hazards and threats which include 
everything from weapons of mass destruction to natural disasters.
  We do not need to be reminded of the heightened state of security we 
are now in and the ever-increasing demands imposed upon our government 
agencies tasked with keeping our borders and citizens safe.
  Now is not the time to undermine or slow the ability of DHS and its 
ability to address growing threats and active acts of terrorism.
  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.
  The overall mission of DHS is too critical and its functions 
indispensably essential, such that it would be impugned to do anything 
that will slow down the process that allows DHS to do its job.
  The Jackson Lee Amendment Number 2 would keep in place the 
appropriate and needed expertise and specialized abilities of the 
Department of Homeland Security to make rules and regulations necessary 
for our nation's security.
  I urge my colleagues to support the Jackson Lee Amendment Number 2.
  Mr. RATCLIFFE. Mr. Chair, I rise in opposition to the gentlewoman's 
amendment.
  The Acting CHAIR. The gentleman from Texas is recognized for 5 
minutes.
  Mr. RATCLIFFE. Mr. Chair, while I respect the gentlewoman's service 
and the spirit in which she offers this amendment, this amendment 
carves out of the bill national security regulations from the 
Department of Homeland Security. As we all know, Mr. Chair, the 
Department of Homeland Security is an agency that has a long

[[Page H4654]]

record of significant, unconstitutional regulatory overreach. To that 
end, we should be strengthening the courts' ability to check that, not 
weakening it, as the gentlewoman's amendment would do.
  Again, no area of regulation is so important that we should allow 
unelected bureaucrats to avoid the vigorous system of checks and 
balances that our Framers intended and that this bill would restore; so 
I urge opposition to this amendment.
  Mr. Chair, I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Chair, I yield the balance of my time to 
the gentlewoman from Texas (Ms. Jackson Lee).
  Ms. JACKSON LEE. Mr. Chair, I thank the gentleman for claiming the 
time, but I do want the Record to reflect that this is a Jackson Lee 
amendment. However the Record can correct it, I desire for it to do so.
  This amendment is in keeping with Justice Scalia, who was an 
aggressively vocal supporter of the Chevron deference during his 
career. It is an indication of just how broad and mainstream the 
support is for maintaining such deference, and that is deference to the 
agencies and their reviews and their expertise.
  With the de novo scenario that this bill provides for, in spite of 
its alleged exemptions of national security issues, there is a vast 
level of responsibility of the Homeland Security Department. Frankly, 
all of its work comes under the context of regular order for protecting 
the American people--from immigration issues, to policing issues, to 
Secret Service--and many of these should not be tampered with by a de 
novo review of the regulatory scheme that they will be putting forward.
  I ask my colleagues to support the Jackson Lee amendment to secure 
the Nation.
  Mr. JOHNSON of Georgia. Mr. Chair, I yield back the balance of my 
time.
  Mr. RATCLIFFE. Mr. Chair, the Chevron doctrine is the primary driver 
of regulatory overreach. It should be overturned. This bill would do 
that; so I oppose this amendment.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Georgia (Mr. Johnson).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. JOHNSON of Georgia. Mr. Chair, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Georgia will 
be postponed.

                              {time}  2045


                         Parliamentary Inquiry

  Ms. JACKSON LEE. Mr. Chair, I have a parliamentary inquiry.
  The Acting CHAIR. The gentlewoman from Texas will state her 
parliamentary inquiry.
  Ms. JACKSON LEE. Mr. Chair, am I able to request a unanimous consent 
to make that the amendment from Jackson Lee?
  The Acting CHAIR. The Chair would not entertain that request in the 
Committee of the Whole.


                  Amendment No. 3 Offered by Mr. Meeks

  The Acting CHAIR. It is now in order to consider amendment No. 3 
printed in House Report 114-641.
  Mr. MEEKS. Mr. Chairman, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 3, line 11, insert after ``extent necessary'' the 
     following ``, and except as otherwise provided in this 
     section''.
       Page 4, line 3, insert after the period at the end the 
     following:

     SEC. 3. EXCEPTED RULES.

       Section 706 of title 5, United States Code, as amended by 
     this Act, is further amended by adding at the end the 
     following:
       ``(c) In the case of a rule made by the Secretary of 
     Housing and Urban Development, to the extent necessary to 
     decision and when presented, the reviewing court shall decide 
     all relevant questions of law, interpret constitutional and 
     statutory provisions, and determine the meaning or 
     applicability of the terms of an agency action.''.

  The Acting CHAIR. Pursuant to House Resolution 796, the gentleman 
from New York (Mr. Meeks) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from New York.
  Mr. MEEKS. Mr. Chairman, let me start by saying straight out that I 
do not support the underlying bill.
  I encourage my colleagues to support my amendment that would lessen 
the negative budget impact of this bill and exempt any rules issued by 
the Department of Housing and Urban Development from additional 
judicial review and delay. I think this is important for all of us in 
the House, whether we be Democrats or Republicans.
  First, in dealing with the overall bill, it would severely hamstring 
and weaken our country's regulatory agencies. Dating back more than 100 
years, regulatory agencies have executed congressional directives or 
identified public problems and fixed them utilizing their agency's 
expertise. This bill undercuts agencies' ability to do both of those 
things. It also throws out of balance our systems of checks and 
balances.
  Recently, we witnessed a public health crisis in Flint, Michigan, 
where thousands did not have access to safe, potable drinking water.
  Is the natural response to this crisis to hinder the very agencies 
who are supposed to protect the public?
  It is not the natural response. It is the wrong response.
  We shouldn't tie the hands of the Environmental Protection Agency, 
the Department of Health and Human Services, and other agencies whose 
main objective is to protect our citizens. In attacking Federal 
agencies that protect the public with safeguards, my colleagues on the 
other side of the aisle are actually attacking the public interest.
  One of these agencies that advances the public interest is the United 
States Department of Housing and Urban Development, better known as 
HUD. HUD provides rental assistance, affordable housing, and community 
development block grants, all of which are enormously important for 
people throughout our great Nation. I grew up in public housing, so I 
know the importance of programs that put a roof over a family's head. 
Also, community development block grants are helping to rebuild cities 
like New York in the wake of Superstorm Sandy, which devastated so many 
families.
  Furthermore, HUD prevents discrimination in housing and in lending. 
It ensures that landlords cannot deny housing to someone based on his 
or her race, religion, national origin, or disability. HUD also helps 
low-income families secure housing. Prospective buyers receive HUD 
assistance when buying their first home, which is oftentimes the 
biggest investment they will make in their lifetime. HUD, therefore, 
offers the opportunity for wealth accumulation and gives folks the 
pride that comes along with owning a home. Indeed, HUD keeps the 
American Dream of home ownership alive.
  For our veterans, who have served their Nation with honor and deserve 
our unending support, HUD helps them secure housing. HUD provides 
homeless individuals with necessary resources to help them overcome 
homelessness. Individuals who suffer domestic violence also receive 
assistance from HUD, and we must continue to provide these victims with 
a safe space, protected from their abusers.
  All of these populations deserve continual and robust support from 
HUD and our Federal Government. These are just a few examples of the 
impact of HUD's work and all of the people it helps. I could honestly 
say that it is one of the most visible and beneficial agencies that 
serves all of our constituents.
  So I am a supporter of HUD, and I believe in all of its good work. I 
offer my amendment to protect HUD, as it has protected so many 
Americans and their families. My amendment would exempt rules issued by 
HUD from being included in this bill. I encourage my colleagues to vote 
for my amendment to relieve HUD from these foolish attacks.
  I reserve the balance of my time.
  Mr. RATCLIFFE. Mr. Chairman, I claim the time in opposition.
  The Acting CHAIR. The gentleman from Texas is recognized for 5 
minutes.
  Mr. RATCLIFFE. Mr. Chairman, I oppose the amendment. This is an 
amendment which carves out of the bill regulations issued by the 
Department of Housing and Urban Development.
  Mr. Chairman, there is no basis upon which to single out HUD as an 
agency

[[Page H4655]]

to which courts should defer on questions of statutory and regulatory 
interpretation. To the contrary, HUD has proven that it can overreach 
just as egregiously, just as oppressively as any other agency, and, 
therefore, needs just as strong a check and balance from the courts 
like any other agency.
  Mr. Chairman, like too many of its sister agencies, HUD is attempting 
to use Federal regulation to unconstitutionally assert control over 
wide swaths of American life. To see this, one need look no further 
than HUD's controversial regulation in 2015 that threatens to 
federalize local zoning authority. That regulation would withhold 
Federal funding if municipalities all across the land don't actively 
work to change residential patterns that don't conform to the desires 
of HUD bureaucrats.
  The regulation is a major extension of HUD's authority. It challenges 
local, neutral zoning policies merely because they produce uneven 
effects across population groups. And the use of the withholding of 
Federal funds to make localities knuckle under to HUD's dictates is an 
attempt to extort local communities into giving up control of local 
zoning decisions that have traditionally been theirs under the 
Constitution.
  A decision like HUD's is precisely the kind of decision in a 
democracy that should be made by accountable, elected representatives 
of the people, not by the fiat of bureaucrats emboldened by smug claims 
to Chevron deference from the courts.
  I urge my colleagues to oppose this amendment.
  I reserve the balance of my time.
  Mr. MEEKS. Mr. Chairman, how much time do I have remaining?
  The Acting CHAIR. The gentleman from New York has 30 seconds 
remaining.
  Mr. MEEKS. Mr. Chairman, let me say, first of all, this bill is not 
going anywhere, fortunately, because this deceptively named Separation 
of Powers Restoration Act is something that really would hurt America 
and the American people.
  So I urge to let's make the bill better by passing my amendment and 
other amendments that you have heard earlier. But the underlying bill 
is a bad bill. It is bad for our people, and we should vote ``no'' on 
the underlying bill also.
  I yield back the balance of my time.
  Mr. RATCLIFFE. Mr. Chairman, I urge my colleagues to oppose this 
amendment.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from New York (Mr. Meeks).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. MEEKS. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from New York 
will be postponed.


           Amendment No. 4 Offered by Mr. Johnson of Georgia

  The Acting CHAIR. It is now in order to consider amendment No. 4 
printed in House Report 114-641.
  Mr. JOHNSON of Georgia. Mr. Chairman, I have an amendment at the 
desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 3, line 11, insert after ``extent necessary'' the 
     following ``, and except as otherwise provided in this 
     section''.
       Page 4, line 3, insert after the period at the end the 
     following:

     SEC. 3. EXCEPTED RULES.

       Section 706 of title 5, United States Code, as amended by 
     this Act, is further amended by adding at the end the 
     following:
       ``(c) In the case of a rule made pursuant to an explicit 
     grant of authority in any statute, to the extent necessary to 
     decision and when presented, the reviewing court shall decide 
     all relevant questions of law, interpret constitutional and 
     statutory provisions, and determine the meaning or 
     applicability of the terms of an agency action.''.

  The Acting CHAIR. Pursuant to House Resolution 796, the gentleman 
from Georgia (Mr. Johnson) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Georgia.
  Mr. JOHNSON of Georgia. Mr. Chairman, I rise in support of my 
amendment, which exempts from the bill rules issued by agencies 
pursuant to their express statutory authority.
  H.R. 4768 is a misguided and dangerous bill that simply does not 
understand courts must always give effect to clearly expressed 
congressional intent under current law.
  H.R. 4768 would dismantle decades of judicial practice and establish 
generalist courts as super-regulators with sweeping authority over the 
outcome, and perhaps even substance, of agency rulemaking even where 
Congress expressly grants authority for agency action.
  At the subcommittee hearing on the bill, the majority's own witness, 
Professor Jack Beermann, testified that the bill ``may go too far'' by 
disabling ``reviewing courts from taking into account the views of an 
administering agency on questions of statutory interpretation.''
  Professor Beermann expressed additional concerns that H.R. 4768 may 
frustrate Congress' intent for highly technical areas in which Congress 
expects an agency to apply its expertise.
  Furthermore, as Professor Beermann testified, in areas where Congress 
expressly grants authority for an agency to undertake an action, such 
as defining a term, H.R. 4768 would represent a ``fundamental shift in 
authority'' while making it difficult for Congress to allow deference 
where appropriate.
  The late-Justice Scalia held a similar view on judicial deference. 
Writing for the majority in the City of Arlington, Texas v. FCC, 
Justice Scalia argued that requiring a de novo review of every agency 
rule 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 eviscerating ``the whole 
stabilizing purpose of Chevron. The excessive agency power that the 
dissent fears would be replaced by chaos.''
  In recognition of these concerns, my amendment would exempt from the 
bill agency rules promulgated in response to a clear and unequivocal 
mandate from Congress. Without my amendment and notwithstanding the 
endearing title of the bill, H.R. 4768 would create countervailing 
separation of powers concerns by casting aside Congress' role in 
shaping agency rules in favor of judicial activism.
  As a group of our Nation's leading administrative law experts have 
observed, H.R. 4768 is disruptive to the careful equilibrium that the 
full body of administrative law doctrine seeks to achieve. 
Administrative law is not perfect, but this bill tilts too strongly in 
favor of judicial power at the expense of the other two branches. In 
other words, the likely outcome of enacting this unwise proposal would 
be more power in the hands of a single branch of government that is 
unelected and unaccountable to the people.
  This policy concern is the very foundation of the Chevron doctrine. 
As the Court noted in Chevron, judges ``are not experts in the field, 
and are not part of either political branch of the Government.''
  H.R. 4768 is not a new idea, but it is a bad idea. Congress 
considered and rejected a proposal such as this over three decades ago. 
It wasn't a good idea then, and it is a worse idea now.
  I reserve the balance of my time.
  Mr. RATCLIFFE. Mr. Chairman, I claim the time in opposition.
  The Acting CHAIR. The gentleman from Texas is recognized for 5 
minutes.
  Mr. RATCLIFFE. Mr. Chairman, I oppose this amendment. It is an 
amendment which carves out of my bill agency action based on statutes 
that expressly grant agency discretion.
  As agencies seek to act within areas of statutory discretion, courts 
are more than able, more than qualified to determine responsibly 
whether the agencies have, in fact, acted within their discretion.
  Furthermore, Mr. Chairman, it is imperative that courts no longer 
defer to agencies, in defining as a matter of statutory interpretation, 
precisely what the limits of that discretion are. Otherwise, self-
serving, unelected, and unaccountable bureaucrats will continue to 
interpret statutes in such a way as to intentionally empower agency 
overreach, and the courts will continue to stand idly by and let them 
get away with it.
  I urge my colleagues to oppose this amendment.

[[Page H4656]]

  I reserve the balance of my time.

                              {time}  2100

  Mr. JOHNSON of Georgia. Mr. Chairman, I yield back the balance of my 
time.
  Mr. RATCLIFFE. I will again urge opposition to the amendment.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Georgia (Mr. Johnson).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Georgia will 
be postponed.


  Vacating Demand for Recorded Vote on Amendment No. 2 Offered by Mr. 
                           Johnson of Georgia

  Mr. JOHNSON of Georgia. Mr. Chairman, I ask unanimous consent that 
the request for a recorded vote on amendment No. 2 be withdrawn to the 
end that the amendment stand disposed of by voice vote. That was the 
amendment that was originally styled the Jackson Lee amendment No. 2, 
which I was asked to present by designation.
  The Acting CHAIR. The Clerk will redesignate the amendment.
  The Clerk redesignated the amendment.
  The Acting CHAIR. Without objection, the request for a recorded vote 
is withdrawn. Accordingly, the ``noes'' have it, and the amendment is 
not agreed to.
  There was no objection.


           Amendment No. 5 Offered by Mr. Johnson of Georgia

  The Acting CHAIR. It is now in order to consider amendment No. 5 
printed in House Report 114-641.
  Mr. JOHNSON of Georgia. Mr. Chairman, as the designee of the 
gentleman from Rhode Island (Mr. Cicilline), I have an amendment at the 
desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 3, line 11, insert after ``extent necessary'' the 
     following ``, and except as otherwise provided in this 
     section''.
       Page 4, line 3, insert after the period at the end the 
     following:

     SEC. 3. EXCEPTED RULES.

       Section 706 of title 5, United States Code, as amended by 
     this Act, is further amended by adding at the end the 
     following:
       ``(c) In the case of a rule made by the Commissioner of 
     Food and Drugs of the Food and Drug Administration that 
     pertains to consumer safety, to the extent necessary to 
     decision and when presented, the reviewing court shall decide 
     all relevant questions of law, interpret constitutional and 
     statutory provisions, and determine the meaning or 
     applicability of the terms of an agency action.''.

  The Acting CHAIR. Pursuant to House Resolution 796, the gentleman 
from Georgia (Mr. Johnson) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Georgia.
  Mr. JOHNSON of Georgia. Mr. Chairman, this amendment would exempt 
from the bill any rule issued by the Food and Drug Administration that 
pertains to consumer safety. This amendment is necessary to safeguard 
the public health and safety of American consumers from the bill's 
burdensome regulatory framework, which would significantly delay or 
prevent critical rules that protect public health and safety from being 
issued by the FDA.
  Just recently, the FDA finally implemented the bipartisan FDA Food 
Safety Modernization Act, which was passed by Congress and signed into 
law by President Obama in 2011, representing the most substantial 
reform to food safety in over 70 years.
  According to the Centers for Disease Control, one in six Americans 
gets sick every year from foodborne diseases. That is 48 million people 
yearly. Of these 48 million people, 3,000 every year die from diseases 
that are largely preventable. Under authority and clear regulatory 
framework achieved by the Food Safety Modernization Act, the FDA's 
finalized rules will prevent foodborne illnesses and outbreaks 
associated with contaminated produce among other important protections.
  In its letter opposing H.R. 4768, the Coalition for Sensible 
Safeguards, which represents more than 150 labor, food, and health 
safety and environmental public interest groups, notes that H.R. 4768 
will lead to ``regulatory paralysis,'' particularly for rules related 
to the food safety sector.
  Without this amendment, rules protecting the public's food supply at 
best would be delayed for months or even years, causing substantial 
confusion and delay in all agency rulemaking. At worst, the bill gives 
generalist courts unbridled discretion to make substantive 
determinations concerning agencies' statutory authority. I ask my 
colleagues to support this amendment.
  Mr. Chairman, I reserve the balance of my time.
  Mr. RATCLIFFE. Mr. Chairman, I claim the time in opposition.
  The Acting CHAIR. The gentleman from Texas is recognized for 5 
minutes.
  Mr. RATCLIFFE. Mr. Chairman, I oppose this amendment, which carves 
out of the bill consumer safety regulations from the Food and Drug 
Administration. While this is an important area of regulation, 
unfortunately, it is yet another area which has been riddled with 
bureaucratic overreach by unelected, unaccountable bureaucrats and 
their erroneous whims and political agendas.
  Mr. Chairman, we should strengthen the courts' ability to check these 
types of overreaching and erroneous statutory and regulatory 
interpretations, not weaken them, as this amendment would do.
  I urge opposition to the amendment.
  Mr. Chairman, I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Chairman, I include in the Record a July 
11 letter from the Union of Concerned Scientists and also a July 5 
letter from the AFL-CIO, both opposing H.R. 4768, the so-called 
Separation of Powers Restoration Act of 2016.

                                    Union of Concerned Scientists,
                                                    July 11, 2016.
       Dear Representative: The Center for Science and Democracy 
     at the Union of Concerned Scientists, representing more than 
     500,000 members and supporters across the country, strongly 
     opposes H.R. 4768, the deceptively named ``Separation of 
     Powers Restoration Act.''
       This misguided legislation would abolish agency deference, 
     a well-established framework under Chevron U.S.A., Inc. v. 
     Natural Resources Defense Council, which allows federal 
     agencies that have the scientific and technical expertise, to 
     interpret and administer laws passed by Congress.
       Instead, H.R. 4768 would undermine the scientific expertise 
     at federal agencies. Courts should be deferring to technical 
     experts at agencies to help actualize our landmark public 
     health, safety, and environmental laws, all of which are 
     grounded in the use of science. If agency deference is 
     abandoned, then the use of scientific analysis and evidence 
     in policymaking would be severely restricted.
       Furthermore, by placing important science-based public 
     health, safety, and environmental policy decisions in the 
     hands of judges who lack specialized knowledge of the 
     technical aspects of the issues agencies must deal with, 
     there may in fact be an increase in regulatory uncertainty 
     for all stakeholders.
       What H.R. 4768 really seeks to do is subvert well-
     established legal norms that govern the development and 
     implementation of science-based safeguards that are vital to 
     protecting the health and safety of Americans, especially 
     communities of color and low income communities, who often 
     face the biggest public health, safety, and environmental 
     threats. Vulnerable communities and populations stand to lose 
     the most when the process to enact these safeguards is 
     crippled, exacerbating long standing inequity.
       Congress writes the laws to ensure access to clean air and 
     water, safe consumer products, and untainted food and drugs. 
     Federal agencies fulfill those mandates and have the 
     necessary scientific expertise to do so. If Congress believes 
     that an agency is misinterpreting the intent of a statute, it 
     has the power to enact new legislation to establish clear and 
     precise criteria and boundaries for the executive to carry 
     out. This is the common-sense approach.
       We urge Congress to improve the use of science in our 
     federal policymaking, and work to strengthen science-based 
     safeguards, not undermine them.
       This harmful legislation would give judges the ability to 
     override scientific expertise and the administrative record 
     and instead substitute their own inexpert views with limited 
     information. We strongly urge a no vote on H.R. 4768. It is 
     just another recipe for stymieing science-based safeguards 
     and does not deserve your support.
           Sincerely,
     Andrew A. Rosenberg, Ph.D.,
       Director, Center for Science and Democracy, Union of 
     Concerned Scientists.

[[Page H4657]]

     
                                  ____
                                                     July 5, 2016.
     Re Opposition to H.R. 4768, the so-called ``Separation of 
         Powers Restoration Act of 2016'' 

       Dear Representative: On behalf of our millions of members, 
     activists, and supporters nationwide we, the undersigned 
     organizations, urge you to oppose H.R. 4768, the so-called 
     ``Separation of Powers Restoration Act of 2016''. The bill is 
     flawed and harmful and should not become law. Deference to 
     reasonable agency interpretations of statutes pursuant to 
     Chevron U.S.A., Inc., v. NRDC, 467 U.S. 837 (1984), is a 
     longstanding and well-understood framework for judicial 
     review that acknowledges the appropriate powers of the three 
     constitutional branches in enacting, administering, and 
     interpreting statutes. The bill is an attempt to abandon this 
     framework and upend more than 30 years of well-established 
     administrative law.
       H.R. 4768 is motivated by a desire to transfer to judges 
     statutory implementation power that Congress has previously 
     delegated to the executive branch. Congress has the power to 
     enact clear, prescriptive laws that establish criteria and 
     boundaries around agency implementation of statutes. If 
     Congress perceives the executive branch to be implementing 
     statutes in a manner inconsistent with their enactment, the 
     appropriate response is to enact clearer and more-
     prescriptive statutes, not to upend three decades of 
     established, overarching case law as H.R. 4768 seeks to do.
       At root, H.R. 4768 seems motivated by the dissatisfaction 
     of the political party that currently controls Congress with 
     the statutory implementation decisions made by the current 
     Administration, which is controlled by a different political 
     party. These sorts of partisan disagreements are not an 
     adequate reason to overturn more than 30 years of established 
     case law governing federal administrative law.
       Accordingly, we urge you to vote no on H.R. 4768.
       Thank you for your consideration.
           Sincerely,
         AFL-CIO,
         American Association for Justice,
         Americans for Financial Reform,
         The American Federation of State County & Municipal 
           Employees (AFSCME),
         Center for Responsible Lending,
         Consumer Federation of America, Daily Kos,
         Earthjustice,
         Economic Policy Institute,
         Free Press Action Fund,
         Institute for Agriculture & Trade Policy (IATP),
         National Association of Consumer Advocates,
         National Consumer Law Center,
         National Employment Law Project,
         National Hispanic Media Coalition,
         Natural Resources Defense Council,
         Public Citizen,
         U.S. PIRG,
         Union of Concerned Scientists,
         United Steelworkers (USW),
         Voices for Progress.

  Mr. JOHNSON of Georgia. Mr. Chairman, I yield back the balance of my 
time.
  Mr. RATCLIFFE. Mr. Chairman, I again urge opposition to the 
amendment.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Georgia (Mr. Johnson).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Georgia will 
be postponed.
  Mr. RATCLIFFE. 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. 
Thompson of Pennsylvania) having assumed the chair, Mr. Moolenaar, 
Acting 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.

                          ____________________