[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.
____________________