[Congressional Record Volume 169, Number 105 (Thursday, June 15, 2023)]
[House]
[Pages H2938-H2944]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  0915
              SEPARATION OF POWERS RESTORATION ACT OF 2023

  Mr. FITZGERALD. Madam Speaker, pursuant to House Resolution 495, I 
call up the bill (H.R. 288) to amend title 5, United States Code, to 
clarify the nature of judicial review of agency interpretations of 
statutory and regulatory provisions, and ask for its immediate 
consideration in the House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 495, in lieu of 
the amendment in the nature of a substitute recommended by the 
Committee on the Judiciary printed in the bill, an amendment in the 
nature of a substitute consisting of the text of Rules Committee Print 
118-7 is adopted, and the bill, as amended, is considered read.
  The text of the bill, as amended, is as follows:

                                H.R. 288

       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 2023'' or ``SOPRA''.

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

       Section 706 of title 5, United States Code, is amended--

[[Page H2939]]

       (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 SPEAKER pro tempore. The bill, as amended, shall be debatable for 
1 hour equally divided and controlled by the chair and ranking minority 
member of the Committee on the Judiciary or their respective designees.
  After 1 hour of debate on the bill, as amended, it shall be in order 
to consider the further amendment printed in part B of House Report 
118-108, if offered by the Member designated in the report, which shall 
be considered read, shall be separately debatable for the time 
specified in the report equally divided and controlled by the proponent 
and an opponent, and shall not be subject to a demand for a division of 
the question.
  The gentleman from Wisconsin (Mr. Fitzgerald) and the gentleman from 
New York (Mr. Nadler), each will control 30 minutes.
  The Chair recognizes the gentleman from Wisconsin.


                             General Leave

  Mr. FITZGERALD. Madam Speaker, I ask unanimous consent that all 
Members may have 5 legislative days in which to revise and extend their 
remarks and to insert extraneous material on H.R. 288.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, I rise in strong support of H.R. 288, Separation of 
Powers Restoration Act or SOPRA. The Constitution separates the powers 
of the Federal Government into a system of checks and balances.
  Article I, Section 1 grants Congress all legislative power, while 
executive power is granted to the President, and judicial power is 
vested in the courts, as we all know.
  However, since 1984 when the Supreme Court ruled that courts must 
defer to an agency's interpretation of an ambiguous statute rather than 
what Congress intended, the executive branch has begun usurping the 
legislative branch to issue regulations with the force of law.
  This consolidation of power departs from the constitutional 
principles and harms our own liberties. It is certainly not what our 
Founders intended. Yet, this 1984 ruling, known as Chevron, has paved 
the way for unelected bureaucrats to issue sweeping rules with no 
consequences.
  Just in 2021, for example, executive branch agencies issued more than 
3,200 rules that imposed vaccine mandates on workers. They were also 
involved in overturning the Keystone pipeline, and required a $15 
minimum wage for Federal contractors, and allowed the IRS to spy on 
Americans' bank accounts.
  Meanwhile, that same year, only 143 bills passed by Congress were 
signed into law. This means executive branch agencies impose more than 
20 times as many mandates as actual legislators. These regulations are 
not without cost. According to the American Action Forum, Federal 
agencies collectively finalized $200 billion in regulatory costs in 
2021, equivalent to more than $600 per U.S. household.
  In 2022, we saw an additional $117 billion in regulatory costs added 
to the bottom line. Taken with rules from previous administrations and 
according to the Competitive Enterprise Institute, the total annual 
costs of regulation is almost $2 trillion, or about 8 percent of the 
U.S. GDP.
  If it were a country, for comparison, U.S. regulation would be the 
world's 8th largest economy, only behind France.
  If Members of this Chamber impose that kind of cost on taxpayers--
well, we know what would happen--we would all be voted out of office.
  Yet, the Biden administration continues to issue binding rules and 
courts continue to apply the Chevron doctrine when determining its 
statutory authority. It is no surprise to see that the President will 
probably oppose this legislation and promise to veto it. Just 5 months 
into 2023, and we have already seen his administration circumvent 
Congress to make changes to non-competes, require climate disclosures 
by Department of Defense contractors, and ban the use of pistol braces 
nationwide.
  An unchecked administrative state is dangerous to the American 
people. That is why it is imperative that Congress regain its 
legislative power by passing H.R. 288.
  The Separation of Powers Restoration Act would displace Chevron and 
other precedents that require courts to defer to agency positions. It 
ensures that courts independently consider what Congress has said 
through its statutes rather than putting a thumb on the scale in favor 
of the Federal agencies.
  By forcing courts to apply de novo review, the standard would reclaim 
the courts' constitutional role as the branch that interprets the law, 
and Congress' role will once again be underscored as the branch that 
writes them.
  Agencies are not supposed to make laws, and it is past time to bring 
the power of legislating back to the branch our Founders intended.
  Madam Speaker, I thank Chairman Jordan for his leadership on the 
issue, and I urge my colleagues to support the bill.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, the so-called Separation of Powers Restoration Act 
would completely upend the administrative process by eliminating 
judicial deference to agencies and by requiring Federal courts to 
review all agency rulemakings and interpretations of statutes on a de 
novo basis.
  More than 30 years ago, the Supreme Court held in Chevron USA v. 
Natural Resources Defense Council, that courts must give ``considerable 
weight'' to an agency's construction of a statute it administers. This 
makes sense, because while Congress sets broad policies, we delegate 
authority to executive agencies because we do not have the expertise to 
craft technical regulations ourselves, and we rely on these agencies to 
carry out the policies we enact.

  Under the Chevron doctrine, courts respect the careful process 
undertaken by the dedicated professionals at our Federal agencies, many 
of whom who have decades of experience and vast technical expertise.
  Courts give deference to an agency's interpretation of its statutory 
authority if the interpretation is determined to be reasonable. The 
Chevron doctrine has been the ruling precedent for judicial review of 
agency decisions for decades. But this legislation would do away with 
this longstanding precedent--a move that would throw uncertainty into 
the entire rulemaking process.
  It would also empower judges to completely override the determination 
of agency experts, substituting their own judgment regardless of their 
comparative lack of technical knowledge and understanding of the 
underlying subject matter for the carefully crafted and scientifically 
based decisions made by agencies.
  It is the height of hypocrisy for the party that rails against what 
it calls judicial activism to support legislation that is the very 
embodiment of the judicial activism.
  This legislation would also make the Federal rulemaking process even 
more time consuming and costly than it already is, forcing agencies to 
adopt even more detailed factual records and explanations in order to 
withstand judicial scrutiny, which would further delay the finalization 
of critical lifesaving regulations.
  These are regulations that protect the quality of the air we breathe, 
the water we drink, the food we consume, and the safety of the products 
we use. But this legislation is just the latest step in the 
Republican's decades-long assault on the regulatory process, trying to 
add hurdle after hurdle on the

[[Page H2940]]

ability to issue regulations that protect public health and safety, 
regulations whose benefits consistently outweigh their cost, often by 
many multiples.
  Slowing down the rulemaking process for these vital health and safety 
protections would put the lives of Americans at greater risk. By 
eliminating judicial deference to agencies, this bill would empower the 
courts to make public policy from the bench, ignoring the careful 
consideration and technical expertise of executive agencies.
  Madam Speaker, I include in the Record two letters: The first from 
the Coalition for Sensible Safeguards, which includes more than 160 
diverse labor, consumer, public health, food safety, financial reform, 
faith, environmental, and scientific integrity groups; and another 
letter from the Earthjustice organization.

                                                     Coalition for


                                          Sensible Safeguards,

                                                     June 5, 2023.
       Dear Representative: The Coalition for Sensible Safeguards 
     (CSS), which includes more than 160 diverse labor, consumer, 
     public health, food safety, financial reform, faith, 
     environmental, and scientific integrity groups representing 
     millions of Americans, strongly opposes the Separation of 
     Powers Restoration Act, H.R. 288.
       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 placing even more 
     obstacles before agencies as they work to provide new public 
     health, safety, and financial security protections for the 
     public.
       The legislation will make our system of regulatory 
     safeguards weaker by enabling judicial policymaking at the 
     expense of agency expertise and congressional authority, 
     thereby resulting in unpredictable outcomes and regulatory 
     uncertainty for all stakeholders. If passed, H.R. 288 would 
     prevent many critical updates to public protections, 
     especially those that ensure clean air and water, safe food 
     and consumer products, safe workplaces, and a stable, 
     prosperous economy.
       This problematic legislation attempts to reverse a 
     fundamental and well-settled legal principle that has long 
     effectively guided our regulatory system and provided a vital 
     check on judicial overreach. It strives to abolish judicial 
     deference to agencies' statutory interpretations in 
     rulemaking by requiring a court to decide all relevant 
     questions of law de nova, 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 regulatory process much 
     worse in several ways. H.R. 288 will lead to even more 
     regulatory burdens and delays, particularly for those 
     ``economically significant'' or ``major'' new rules that 
     provide the greatest benefits to the public's health, safety, 
     and financial security.
       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 that fails 
     to efficiently and effectively protect the public as Congress 
     requires. This further ``chilling'' of rulemaking will 
     certainly benefit special interests 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.
       Of even greater concern, eliminating judicial deference to 
     agency rulemaking would empower 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 with far less expertise. Thus, H.R. 288 aims to make 
     it easier for the courts to overturn an agency's highly 
     technical, resource-intensive, and science-based rulemaking 
     without the expertise needed to make such determinations.
       Further, abolishing Chevron review would actually undermine 
     congressional authority, an irony given the name of the bill. 
     De novo review of the scope and nature of congressional 
     grants of authority to agencies invites courts to create law, 
     ignore congressional intent, or both. In particular, it 
     defeats a deliberate choice by Congress to confer on agencies 
     the authority to resolve complex policy questions based on 
     their expertise and the public input they receive during the 
     rulemaking process.
       Perhaps the most telling critique of attempts to replace 
     Chevron deference with de novo review comes from former 
     Justice Antonin Scalia, a vocal supporter of Chevron 
     deference during his career and an indication of just how 
     broad 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.'' 
     [City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1874 
     (2013).]
       H.R. 288 aims to achieve 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. We 
     strongly urge opposition to the Separation of Powers 
     Restoration Act, H.R. 288.
           Sincerely,
     Coalition for Sensible Safeguards.
                                  ____



                                                 Earthjustice,

                                                     June 6, 2023.
     Re Opposition to H.R. 288, the so-called ``Separation of 
         Powers Restoration Act of 2023''.

       Dear Representative: On behalf of Earthjustice, I 
     respectfully urge you to oppose ``H.R. 288, Separation of 
     Power Restoration Act of 2023'' on the floor this week for 
     vote. Chevron deference is a longstanding and well-founded 
     framework for judicial review that acknowledges a regulatory 
     process grounded in extensive administrative records, and 
     long processes of public input and expert evaluations. The 
     framework is carried out by officials appointed and confirmed 
     by elected officials working under an elected president.
       H.R. 288 in an effort to check the executive branch of 
     power instead creates an unchecked judiciary branch and an 
     unbalanced division of power. The judiciary would be given 
     the power to nullify agencies reasonable regulations based on 
     preference of a particular outcome or interpretation of a 
     regulation. Agency decisions are currently based on extensive 
     expert evaluations of complex natures. Without the reliance 
     on the administrative record and process, judges' decisions 
     will be based on limited information gleaned from the small 
     sampling of litigants before them.
       The Separation of Powers Restoration Act interferes in the 
     stabilized standards used for judicial review of agency 
     interpretation of administrative law. The act essentially 
     transfers implementation power delegated to the executive 
     branch to judges. Congress has the power to set forth strong 
     laws that set forth boundaries around agency implementation. 
     Agencies are prevented from making interpretations that are 
     void of the required connection to the intent and statutory 
     purpose.
       Courts continuously set aside arbitrary and capricious or 
     an abuse of discretion for a wide variety or reasons 
     including the absence of a reasonable relationship to 
     statutory purposes or requirements. Agencies must defend 
     their actions and offer explanations that provide clear links 
     to the statutory purposes based on unflawed reasoning. The 
     fundamental nature of arbitrary and capricious threshold is 
     created to protect the individual's rights by ensuring that 
     no ones liberty is constrained without plausible 
     justification. Government officials are thus only able to 
     operate within the confines of the law.
       H.R. 288 is likely to create a system in which agencies act 
     to protect their interpretations by drafting unclear 
     regulations. The regulations will have vague language with 
     fewer details to prevent de novo reviews. Furthermore 
     geographic differences in regulatory uncertainly will 
     increase. The Chevron test creates a stabilized system in 
     which federal statutes are all given the same 
     interpretational deference in circuit courts where judges are 
     in conflict on regulatory interpretation.
       This bill is another anti-regulatory attempt to attack 
     federal regulation by harming the legal infrastructure. Most 
     erroneously, H.R. 288 would put the general public in harm's 
     way, resulting in impaired safeguards for civil rights, 
     consumer rights, health, the environment, safety, financial 
     markets, and all concerns of federal regulatory statutes.
       Accordingly, I urge you to vote no on H.R. 288.
       Thank you for your consideration.
           Sincerely,

                                             Brielle L. Green,

                                       Senior Legislative Counsel,
                                                     Earthjustice.

  Mr. NADLER. Madam Speaker, I urge my colleagues to oppose this 
dangerously flawed legislation, and I reserve the balance of my time.
  Mr. FITZGERALD. Madam Speaker, I include in the Record a cost 
estimate for H.R. 288, prepared by the Congressional Budget Office.


[[Page H2941]]



   H.R. 288, SEPARATION OF POWERS RESTORATION ACT OF 2023, AS ORDERED
    REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY ON MAY 10, 2023
------------------------------------------------------------------------
                                         By fiscal year,  millions of
                                                   dollars--
                                     -----------------------------------
                                         2023      2023-2028   2023-2033
------------------------------------------------------------------------
Direct Spending (Outlays)...........          a           a           a
Revenues............................          a           a           a
Increase or Decrease (-) in the               a           a           a
 Deficit............................
Spending Subject to Appropriation             a           a           a
 (Outlays)..........................
------------------------------------------------------------------------
a CBO has no basis to estimate the budgetary effects of enacting H.R.
  288.

       Increases net direct spending in any of the four 
     consecutive 10-year periods beginning in 2034? a
       Increases on-budget in any of the four consecutive 10-year 
     periods beginning in 2034? a
       Statutory pay-as-you-go procedures apply? Yes.
       Mandate Effects:
       Contains intergovernmental mandate? No.
       Contains private-sector mandate? No.
       H.R. 288 would authorize federal courts that review agency 
     actions to decide all relevant questions of law, including 
     the interpretation of constitutional and statutory provisions 
     and rules, without deferring to previous legal determinations 
     by the agency.
       Under the bill, federal courts could overturn some agency 
     decisions that they would have upheld under current law. Some 
     of those decisions could affect federal spending by 
     overturning regulations that affect direct spending, 
     revenues, and spending subject to appropriation. However, CBO 
     has no basis for estimating either the likelihood that such 
     actions would be overturned or what the effects on spending 
     might be.
       The CBO staff contact for this estimate is Jon Sperl. The 
     estimate was reviewed by H. Samuel Papenfuss, Deputy Director 
     of Budget Analysis.
                                                Phillip L. Swagel,
                            Director, Congressional Budget Office.

  Mr. FITZGERALD. Madam Speaker, I yield 3 minutes to the gentleman 
from California (Mr. McClintock).
  Mr. McCLINTOCK. Madam Speaker, the central architecture of the 
Constitution is the separation of powers. It is really just mother's 
rules, writ large.
  One slice of pie; two hungry brothers. How does mother slice the pie 
so both brothers are happy? Pretty simple. One slices; the other 
chooses. The powers given to one brother cannot be abused because of 
the powers given to the other.
  That is the brilliance of our Constitution. One brother makes law but 
cannot enforce it; the other brother enforces law but cannot make it.
  Article I is the first and longest article in the Constitution. It 
begins with the words: ``All legislative powers herein granted are 
vested in a Congress of the United States.''
  When a law was to be made, the Founders wanted a great big rowdy food 
fight. They wanted every voice expressed through their Representatives. 
They wanted the decision held up to every light. They created two 
Houses with decidedly different perspectives so that the Congress would 
even argue with itself. They wanted it hard to make laws so the Nation 
wouldn't be smothered by them, and they wanted those who make those 
laws directly answerable to the people.
  But once made, they didn't want laws to be carried out by hundreds of 
squabbling prima donnas. That's why we have Article II: ``The executive 
powers shall be vested in a President of the United States.'' One 
official, independent of the Congress but also accountable to the 
people, was to carry out those laws; not make them, but to take care 
that they are ``faithfully executed.''
  Then in Article III, mother, the Supreme Court, independent of both 
brothers, is there to resolve disputes.
  How different it is today. Today, executive agencies which are not 
elected and often act independently of the elected President, make ten 
times the laws that Congress makes. They then enforce the laws that 
they have made, and if they accuse you of violating them, you have to 
prove your innocence in an administrative court run by the same agency 
that made the law, accused you of breaking it, and which keeps the 
fines that it takes from you.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. FITZGERALD. Madam Speaker, I yield an additional 1 minute to the 
gentleman from California.
  Mr. McCLINTOCK. Madam Speaker, while the courts give intentional 
scrutiny to the laws made by Congress, under the doctrine of Chevron 
deference, they have to give wide latitude to the acts of agencies that 
lack any checks and balances.
  Madison warned that when all of the powers of government are in the 
same hands, you have tyranny. Just ask anyone who has been hauled 
before this Kafkaesque process.
  This bill starts to return the law to its constitutional moorings by 
repealing this despotic doctrine and placing the acts of unelected 
administrative state under the same constitutional scrutiny as those of 
the elected Congress.
  Mr. NADLER. Madam Speaker, I yield such time as she may consume to 
the distinguished gentlewoman from Pennsylvania (Ms. Dean).
  Ms. DEAN of Pennsylvania. Madam Speaker, I rise today in opposition 
to H.R. 288, the Separation of Powers Restoration Act, SOPRA.
  If passed, Federal agencies would have a harder time protecting 
Americans from threats to our health, safety, and our well-being at a 
time when we need our agencies with their expertise and resources to be 
their most effective.
  In just one of the most egregious examples, this bill would make it 
easier for weapons to fall into the hands of the wrong people, 
endangering countless American lives.
  For example, it would make it harder for the Attorney General to 
implement regulations to improve our National Instant Criminal 
Background Check System.
  Madam Speaker, I will offer a motion to recommit this bill to our 
committee, the Committee on the Judiciary, and to amend this bill to 
ensure that the AG's rules and regulations around the background check 
system remains unaffected.
  The system is used nationally for determining someone's ability to 
possess a firearm. Its effectiveness is crucial to the safety and 
security of our communities, communities that are already struggling 
and reeling with far too many guns in the wrong hands.
  While Republicans and Democrats are debating on how to address the 
gun violence epidemic in this country, 97 percent of Americans have 
made up their mind. They are angry, and they know we need effective 
background check systems.
  As part of the Bipartisan Safer Communities Act, a bill that was 
signed into law just 1 year ago, we enhanced our background check 
system. We cannot afford to go backwards in any way, and this bill 
would do just that.
  Ignoring the fact that in this country we suffer the scourge of 
48,000 people a year dying of gun violence, more than 60 percent of 
those deaths are suicide; 8 children a day die in this country of gun 
violence.

                              {time}  0930

  I can't believe I must say this. Gun violence has become the leading 
cause of death for America's children. Shame on us.
  Keeping firearms out of the hands of dangerous people is good for 
American communities, will save lives, will save our children's lives. 
We have to save more people.
  SOPRA, this bill, is a dangerous bill. Thus, I hope my colleagues 
will join me in voting for the motion to recommit.
  Madam Speaker, I ask unanimous consent to insert the text of this 
amendment into the Record immediately prior to the vote on the motion 
to recommit.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Pennsylvania?
  There was no objection.
  Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may 
consume.
  Once again, I remind everyone that SOPRA is not deregulatory. That 
has not been the goal at all. The goal is to forward this discussion 
between what should be legislative powers and the administration so 
that, in the future, it also sets a ground floor for many of the 
statutes. Congress remains free to regulate in a very detailed way and 
so do the administrative agencies.
  I have heard this before. We heard it in committee, that somehow we 
were setting up or juxtaposing these two different goals, and it just 
isn't true.
  I think that the other thing we would see is that you would find that 
legislators would do a much better job of drafting bills in the first 
place. I mean, shame on us if we leave a piece of legislation so vague 
that it opens the door for an administrative agency to somehow go in 
and interpret.

[[Page H2942]]

  There are many times when the scope of the legislation is the first 
thing that should be determined before you even sit down and actually 
write the bill.
  So, I know it is a criticism that has existed, but I don't think it 
is valid.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I reserve the balance of my time.
  Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may 
consume.
  The other thing I will mention came up in our discussions during the 
committee. When you find yourself in a situation--we just had this 
discussion in relationship to the REINS Act--where the administrative 
powers continue to kind of escalate and bloom out from that original 
piece of legislation, what you will find is, later on, that has to be 
revisited because oftentimes it is done hastily, doesn't make sense, is 
arbitrary in nature. It is very difficult for legislators to even read 
through those powers that have been granted and try to make sense of 
that. It is another thing that came up in committee that I think is 
valid.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I continue to reserve the balance of my 
time.
  Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may 
consume.
  The other thing I will relay is that SOPRA does not turn judges into 
legislators. SOPRA helps to restore the court's constitutional role as 
the branch that construes the law.
  Specifically, SOPRA requires that courts apply de novo review to all 
relevant questions of law when reviewing agency action. This means that 
the courts, not agencies, will interpret what a law means.
  In other words, SOPRA enhances, not violates, the separation of 
powers under our Constitution. Within that discussion, the 
interpretation of the law is also something that I think would, once 
again, focus where we are.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I continue to reserve the balance of my 
time.
  Mr. FITZGERALD. Madam Speaker, I yield 5 minutes to the gentlewoman 
from Wyoming (Ms. Hageman).
  Ms. HAGEMAN. Madam Speaker, over the last few decades, and as 
accelerated during the Obama and Biden administrations, our 
constitutional separation of powers has been undermined by Congress' 
overdelegation of legislative powers to regulatory agencies in the 
executive branch.
  H.R. 288, the Separation of Powers Restoration Act, or SOPRA, would 
begin to rectify this imbalance.
  SOPRA requires nothing more than for courts to apply de novo review 
to all questions of law, including agencies' interpretation of statutes 
and rules. That is what courts are supposed to do under the 
Constitution. They are supposed to interpret the law.
  SOPRA would override the ill-advised Supreme Court precedents like 
Chevron USA v. Natural Resources Defense Council that require courts to 
defer to agencies' interpretation of statutes and rules so long as they 
are reasonable but even if they are wrong, even if they are incorrect.
  It would end this improper judicial deference that gives agencies 
greater leeway to pass rules carrying the force of law and which puts a 
thumb on the scale in favor of the administrative state and against the 
American people.
  By doing so, SOPRA would help restore the constitutional separation 
of powers, reclaiming the courts' role as the branch that interprets 
the law and Congress' role as the branch that makes the law.
  If we were to look at this issue as if it were a dartboard, courts 
should be aiming for the bull's-eye of what a particular statute means 
and enforcing the legislative intent.
  Deference doctrines, however, allow courts to defer to an agency's 
interpretation of a statute or regulation if they are anywhere on the 
dartboard. This is improper, unconstitutional, and needs to change.
  Agencies often try to avoid consultation and collaboration with the 
very people who are the experts, the people who must live, work, and 
often suffer under the rules and regulations that they mandate. It is 
a case of an all-knowing bureaucracy in Washington thinking that they 
know better than the people in the real world, the businessowners, the 
farmers, the ranchers, the construction workers.

  SOPRA also would help to promote the electoral accountability of 
policymakers by ensuring that it is Congress' policies, and not those 
of unelected bureaucrats, that govern the American people.
  Over the last couple of days, we have had the opportunity to talk 
about the REINS Act, and today, we are here talking about SOPRA, 
restoring constitutional order, applying Article I, Section 1 of the 
Constitution, where Congress makes the laws and the executive branch is 
merely there to carry them out.
  As I indicated yesterday when talking about the REINS Act, I cannot 
understand why anyone in the legislative body would want to defer to 
unelected bureaucrats to make the decisions that impact the citizens of 
this country.
  This body, Congress, was created to legislate. We need to jealously 
guard our power, our authority, and, ultimately, our accountability to 
the American public.
  Again, I cannot understand why anyone who was elected would argue 
that we should allow agencies and folks sitting here in Washington, 
D.C., to make decisions that affect literally millions of people across 
this country without any accountability whatsoever.
  I want to retake our authority to legislate. I want to make sure that 
this body carries out its responsibilities and duties. For that reason, 
I urge my colleagues to vote in favor of SOPRA.
  Mr. NADLER. Madam Speaker, I yield myself the balance of my time.
  This legislation would allow judges to undermine and second-guess the 
carefully crafted and scientifically based regulations issued by our 
expert administrative agencies. It would upset decades of Supreme Court 
precedent just to further the extreme antiregulatory agenda of the 
Republican majority, which puts the health and safety of all Americans 
at risk.
  Madam Speaker, I urge my colleagues to oppose this dangerous 
legislation, and I yield back the balance of my time.
  Mr. FITZGERALD. Madam Speaker, I yield myself the balance of my time.
  Once again, I will say that by forcing the courts to apply the de 
novo review, this standard would reclaim the court's constitutional 
role as the branch that interprets the laws and Congress' role as the 
branch that writes them.
  Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. All time for debate on the bill has expired.


                 Amendment No. 1 Offered by Ms. Hageman

  The SPEAKER pro tempore. It is now in order to consider amendment No. 
1 printed in part B of House Report 118-108.
  Ms. HAGEMAN. Madam Speaker, I have an amendment at the desk.
  The SPEAKER pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 1, beginning on line 16, strike ``and rules made by 
     agencies'' and insert ``rules made by agencies, and 
     interpretative rules, general statements of policy, and all 
     other agency guidance documents''.

  The SPEAKER pro tempore. Pursuant to House Resolution 495, the 
gentlewoman from Wyoming (Ms. Hageman) and a Member opposed each will 
control 5 minutes.
  The Chair recognizes the gentlewoman from Wyoming.
  Ms. HAGEMAN. Madam Speaker, the Separation of Powers Restoration Act, 
or SOPRA, is great legislation that I fully support.
  My amendment is simple and seeks to clarify that de novo judicial 
review applies to agency guidance as well as to agency rules and 
congressional statutes.
  Specifically, my amendment explicitly states that interpretive rules, 
general statements of policy, and all other agency guidance are subject 
to de novo judicial review.
  Unlike rules, guidance is undefined in the APA's definition section. 
Agency guidance consists of interpretive rules that explain how 
agencies interpret the statutes and rules that they administer and 
general statements of policy that prospectively advise how agencies may 
choose to exercise their authority.

[[Page H2943]]

  Guidance is not subject to the APA's notice and comment requirements 
and, at least not officially, does not have the force of law or at 
least shouldn't have the force of law.
  Yet, we have seen a growing trend of administrative agencies 
attempting to use guidance to have the force of law while at the same 
time avoiding even the APA process.
  For example, in my private capacity before being elected to Congress, 
I was part of an effort to push back on the Department of Agriculture's 
attempt to mandate RFID ear tags on the cattle and bison of our 
Nation's ranchers. The agency tried to force this on the agriculture 
community through a two-page guidance document that was posted to the 
USDA website.
  This circumventing of the congressional legislative and agency 
rulemaking process would have cost our cattle producers $2 billion to 
comply with this guidance, all without a single comment or public 
hearing.
  Further concerning is that guidance is often not judicially 
reviewable because agencies then claim that it is not final agency 
action. Even when it is reviewed, the government then asks for 
deference to the agencies by the courts.
  While the language in SOPRA is implicit that the requirement for de 
novo judicial review of all relevant questions of law applies to agency 
guidance, my amendment would make it explicit.
  In closing, my amendment would clarify that agency guidance, which 
agencies routinely abuse, is subject to de novo judicial review under 
this bill.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I claim the time in opposition.
  The SPEAKER pro tempore. The gentleman from New York is recognized 
for 5 minutes.
  Mr. NADLER. Madam Speaker, as agency heads have stated time and time 
again, guidance documents, general statements of policy, and other 
agency guidance do not have the force and effect of law, and the 
agencies do not take enforcement actions based on supervisory guidance.
  This amendment would unnecessarily require judicial review, de novo 
or otherwise, of guidance documents that have not been interpreted by 
courts to be given the force of law.
  Before I discuss how guidance documents and rules differ, let's take 
a minute to consider the pure breadth of materials this amendment would 
cover: interagency statements, bulletins, policy statements, questions 
and answers, frequently asked questions, statements of policy, and 
advisories.
  Rules and guidance from agencies are not only given different weight 
in court, but they also are developed through entirely different 
processes. Rules are made under the Administrative Procedures Act and, 
thus, follow a structured process for soliciting public comments, the 
review of those comments, and the release of any final rule. Agency 
guidance documents, by contrast, are not made under the APA process. 
Guidance documents are not subject to public review and comment. When 
you consider the range of materials that falls under the category 
``guidance,'' this, naturally, makes sense.

                              {time}  0945

  A frequently asked questions page on an agency website cannot and 
should not be placed in the same category as rules that undergo months 
and years of review and development. Not only is it wrong as a matter 
of law to conflate these two classes of documents, but it would also 
signal to the judiciary that Congress sees them on equal footing; that 
is, rules and guidance on equal footing, which would muddy the judicial 
review of agency action.
  I imagine the amendment sponsor did not intend for her amendment to 
accidentally expand what kinds of instruction from agencies should be 
given the force of law by expanding the Separation of Powers 
Restoration Act in this fashion, but in any case, that is what this 
amendment would do.
  If agency guidance were treated the same as a rule, as wrong as that 
might be, agencies would be chilled and warned against providing much-
needed information to the individuals and businesses who seek more 
feedback on an agency's point of view. They would be very hesitant to 
answer questions on question lines.
  Finally, as I noted in response to a similar amendment to the REINS 
Act yesterday, by requiring agency guidance documents to receive the 
same review as rules, this amendment would create confusion among 
businesses subject to oversight from our executive branch agencies as 
to how much weight they should give agency guidance.
  Expanding this bill to also require any guidance the agency gives to 
businesses about how the rules will be enforced is a drastic expansion 
of the Separation of Powers Restoration Act and would ensure that 
agencies provide less guidance for businesses, thus creating more 
uncertainty for businesses.
  This amendment is an overstep that would further stifle the work of 
our agencies. I, therefore, oppose this amendment and urge my 
colleagues to do the same.
  Madam Speaker, I reserve the balance of my time.
  Ms. HAGEMAN. Madam Speaker, the irony of what my colleague on the 
other side is saying is that the only time that the courts would be 
addressing guidance is when the agencies are attempting to enforce it 
against someone outside of the agency.
  Again, an example might be the EPA attempting to enforce their 
guidance against an irrigator in Wyoming because he moved an irrigation 
ditch and they have concluded that such irrigation ditch, through their 
guidance, is actually a navigable water of the United States.
  Now, fortunately, recently, the Supreme Court of the United States 
slapped that down and has indicated that the EPA is no longer going to 
be able to abuse its power and try to control irrigation land and other 
resources by claiming that mud puddles and such are navigable waters of 
the United States, but that is just an example.
  The only time that the courts are going to be looking at guidance is 
if the agencies are attempting to enforce it. Further, while my 
colleague on the other side would argue that these are just frequently 
answered questions and internal documents, the fact is that this is the 
way that agencies are circumventing the APA, circumventing the law, and 
attempting to enforce unofficial documents against the citizens of the 
United States of America.
  I would also point out that yesterday we did pass a similar amendment 
to the REINS Act and what this does is it makes SOPRA and REINS 
consistent in terms of covering guidance documents as well as official 
rules.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, judging from what the gentlewoman just 
said, the gentlewoman does not understand the process at all.
  Courts do not enforce guidance, so we are not prohibiting them here 
from doing what they do not do to start with. Courts do not enforce 
guidance. Guidance simply tells people how the courts will enforce the 
rules promulgated by the agencies.
  So to say that you can't have guidance is to say that people must act 
in ignorance and bet their businesses on what the agency will do 
without knowing it because the agency can't tell them. That is absurd.
  Madam Speaker, I reserve the balance of my time.
  Ms. HAGEMAN. Madam Speaker, I find it so ironic, having been a 
practicing attorney for 34 years and fighting over these exact battles 
in court, that I am having someone who hasn't practiced for decades 
tell me that I am ignorant.
  The agencies are the ones that attempt to enforce guidance, and I 
have defended lawsuits along that very line.
  Therefore, while someone who may have sat in this room for years 
believes that he has the ability to judge what people in the real world 
deal with, the fact is that agencies do attempt to enforce guidance 
against citizens of this country.
  The only thing that this amendment does is to say when that happens, 
the courts are to apply de novo review to the interpretation of what 
that guidance means. Nothing more and nothing less.

  Again, this is a very simple amendment that says to the extent that 
guidance documents are before the court for interpretation, the courts 
must apply de novo review rather than defer to the agency 
interpretation of that guidance. It is very simple, and it is

[[Page H2944]]

something that is appropriate and ensures that we are following our 
constitutional separation of powers.
  Madam Speaker, I yield back the balance of my time.
  Mr. NADLER. Madam Speaker, the gentlewoman is accurate as to what 
SOPRA would do, and for all the reasons I stated before, it is a 
terrible bill, as terrible as REINS is. I am not going to repeat those 
arguments.
  As to this amendment, I don't have to have practiced law recently. I 
know how to read a bill. There are lawyers on my staff who know how to 
read a bill and we know, as I said before, that courts don't enforce 
guidance. There is no such thing.
  Guidance issued by agencies tells the courts how to interpret the 
rules promulgated by those agencies. That is a simple fact. It is not 
debatable.
  Similarly, to have an amendment that says there shall be no guidance 
is to have an amendment that says businesses should operate in the dark 
and bet their businesses on what an agency might do. That is ridiculous 
and harmful to business, and I urge my colleagues to oppose this 
amendment as I urge them to oppose the bill.
  Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Pursuant to the rule, the previous question 
is ordered on the bill, as amended and on the amendment offered by the 
gentlewoman from Wyoming (Ms. Hageman).
  The question is on the amendment by the gentlewoman from Wyoming.
  The amendment was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


                           Motion to Recommit

  Ms. DEAN of Pennsylvania. Madam Speaker, I have a motion to recommit 
at the desk.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Ms. Dean of Pennsylvania moves to recommit the bill H.R. 
     288 to the Committee on the Judiciary.

  The material previously referred to by Ms. Dean of Pennsylvania is as 
follows:

       Ms. Dean of Pennsylvania moves to recommit H.R. 288 to the 
     Committee on the Judiciary with instructions to report the 
     same back to the House forthwith with the following 
     amendment:
       Page 1, line 9, insert after ``extent necessary'' the 
     following: ``, and except as otherwise provided in this 
     section''.
       Add at the end the following:

     SEC. 3. EXCEPTED RULES REGARDING THE PREVENTION OF FIREARMS 
                   TRANSFERS TO CRIMINALS AND SUSPECTED 
                   TERRORISTS.

       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 Attorney General 
     pertaining to the implementation of the national instant 
     criminal background check system, including rules pertaining 
     to the denial of firearms transfers to international or 
     domestic terrorist suspects, 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 SPEAKER pro tempore. Pursuant to clause 2(b) of rule XIX, the 
previous question is ordered on the motion to recommit.
  The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Ms. DEAN of Pennsylvania. Madam Speaker, on that I demand the yeas 
and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question are postponed.

                          ____________________