[House Report 114-622]
[From the U.S. Government Publishing Office]


114th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {      114-622

======================================================================
 
              SEPARATION OF POWERS RESTORATION ACT OF 2016

                                _______
                                

 June 14, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4768]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4768) to amend title 5, United States Code, with 
respect to the judicial review of agency interpretations of 
statutory and regulatory provisions, having considered the 
same, reports favorably thereon with amendments and recommends 
that the bill as amended do pass.







                                CONTENTS

                                                                   Page

The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    11
Committee Consideration..........................................    11
Committee Votes..................................................    11
Committee Oversight Findings.....................................    17
New Budget Authority and Tax Expenditures........................    17
Congressional Budget Office Cost Estimate........................    17
Duplication of Federal Programs..................................    18
Disclosure of Directed Rule Makings..............................    19
Performance Goals and Objectives.................................    19
Advisory on Earmarks.............................................    19
Section-by-Section Analysis......................................    19
Changes in Existing Law Made by the Bill, as Reported............    19
Dissenting Views.................................................    20

                             The Amendment

    The amendments are as follows:
  Strike all that follows after the enacting clause, and insert 
the following:

SECTION 1. SHORT TITLE.

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

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

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

                          Purpose and Summary

    H.R. 4768, the ``Separation of Powers Restoration Act of 
2016'' or ``SOPRA of 2016,'' amends the Administrative 
Procedure Act to overturn the so-called Chevron and Auer 
doctrines of judicial deference to agency interpretations of 
statutory and regulatory provisions.

                Background and Need for the Legislation

               I. A BRIEF HISTORY OF THE CHEVRON DOCTRINE

    The Chevron doctrine, named for the case in which it was 
originally conceived, Chevron U.S.A., Inc. v. Natural Resources 
Defense Council, 467 U.S. 837 (1984), is the centerpiece of the 
Judicial Branch's modern jurisprudence concerning the propriety 
of judicial deference to Federal agencies' statutory 
interpretations. Under this doctrine, a court reviewing an 
agency's interpretation of a statute it administers must first 
determine, using traditional canons of statutory construction, 
whether the statute speaks clearly to the question the agency 
has addressed. See 467 U.S. at 842-43. If so, the court must 
follow Congress' expressed intent. Id. If, however, the statute 
does not reflect a clear congressional intent--i.e., it is 
``silent or ambiguous'' on the question at hand--the court is 
to defer to the agency's interpretation, provided that it is 
within the ``permissible'' range of available statutory 
interpretations. Id. at 843-844. The Chevron doctrine displaced 
the Supreme Court's prior rubric for whether and how to defer 
to administrative agencies, in which perhaps the foremost 
precedent was Skidmore v. Swift & Co., 323 U.S. 124, 140 
(1944), in which the Court articulated an approach commonly 
referred to as Skidmore deference:

        We consider that the rulings, interpretations, and 
        opinions of the Administrator under this Act, while not 
        controlling upon the courts by reason of their 
        authority, do constitute a body of experience and 
        informed judgment to which courts and litigants may 
        properly resort for guidance. The weight of such a 
        judgment in a particular case will depend upon the 
        thoroughness evident in its consideration, the validity 
        of its reasoning, its consistency with earlier and 
        later pronouncements, and all those factors which give 
        it power to persuade, if lacking power to control.

Not all of the judiciary's decisions within the pre-Chevron 
rubric, however, were consistent, which led to confusion in the 
law.\1\
---------------------------------------------------------------------------
    \1\See, e.g., Lawson, Gary and Kam, Stephen, Making Law out of 
Nothing at All: The Origins of the Chevron Doctrine (Selected Works, 
2012) at 6-10 (available at http://works.bepress.com/gary_lawson/1).
---------------------------------------------------------------------------
    Over the years, rather than resolve confusion, the Chevron 
doctrine and its admixture of primacy in deciding ``what the 
law is''--in some cases, primacy for the Judicial Branch, in 
others, primacy for the Executive Branch--has generated 
increasing confusion and concern in the courts, Congress, the 
legal bar, and legal academia. Numerous Supreme Court and 
appeals court decisions in the decades since Chevron have 
striven to evolve or elucidate the doctrine, sometimes cabining 
its use, sometimes not. A sampling of such decisions from the 
Supreme Court, for example, includes the following:

         LChristensen v. Harris County, 529 U.S. 576, 
        587 (2000), in which the Court held that, although 
        Chevron deference applies to review of agency 
        interpretations issued in promulgating a regulation, 
        such deference is not required during review of agency 
        interpretations issued through less formal means, such 
        as in an opinion letter or a post hoc legal brief;

         LUnited States v. Mead Corp., 533 U.S. 218 
        (2001), in which the Court held that the degree to 
        which application of the Chevron doctrine is 
        appropriate depends on whether a statute contains a 
        delegation of lawmaking authority to an agency (the so-
        called ``Chevron Step Zero'' question);

         LNat'l Cable & Telecomms. Ass'n v. Brand X 
        Internet Servs., 545 U.S. 967 (2005), in which the 
        Court suggested that deference to an agency's statutory 
        interpretation might be required, even if a court had 
        previously interpreted the same statute differently;

         LUnited States v. Home Concrete & Supply, LLC, 
        132 S. Ct. 1836 (2012), in which the Court, by 
        plurality opinion, ruled in contrast that an agency's 
        statutory interpretation did not command deference, in 
        light of a contrary, prior interpretation by the Court;

         LCity of Arlington v. FCC, 533 S. Ct. 1863 
        (2013), in which the Court held that Chevron deference 
        must be applied in review of an agency's interpretation 
        of the statutory terms that define the agency's 
        jurisdictional limits, an issue that can sorely tempt 
        an agency's willingness to interpret a statute most 
        faithfully to Congress' intent; and, most recently,

         LKing v. Burwell, 135 S. Ct. 2480, 2489 
        (2015), in which the Court held that, while Chevron 
        deference generally remains applicable in review of 
        agencies' statutory interpretations, it does not 
        provide the appropriate interpretive framework if there 
        is no express delegation of lawmaking authority to the 
        agency on a question of ``deep economic and political 
        significance.''

    This complex case law, of which the foregoing decisions are 
just examples, has created a complex and evolving framework for 
review of agencies' statutory interpretations. At one and the 
same time, this has broadly increased the power of Federal 
administrative agencies, by ceding them authority to determine 
the metes and bounds of their authority under the myriad of 
Federal statutes containing ambiguous provisions; sowed 
uncertainty for the public, regulated entities and even 
Congress, since agencies remain free to change their choices 
from among ``permissible'' ways to interpret these statutory 
provisions; and, revealed a difficult intellectual struggle 
within the Judicial Branch through which that branch, even 30 
years on from Chevron's inception, continues to attempt to 
develop full and clear limits for the application of deference 
to agency interpretations.
    In short, although Chevron represented a watershed moment 
in allowing more deference to agencies than was permissible 
under Skidmore, the Court has been on a slippery slope ever 
since as it has struggled to define precisely when deference is 
appropriate and when it is not.

 II. CONSTITUTIONAL AND STATUTORY DEFICIENCIES IN THE CHEVRON DOCTRINE

    It has been posited that the confusion and difficulty 
spawned by Chevron ultimately stem from its lack of sound 
foundations in constitutional and statutory law. With respect 
to the Constitution, it has been suggested that the Chevron 
doctrine is inconsistent with the Supreme Court's bedrock 
judicial review precedent, Marbury v. Madison, 5 U.S. 137, 177 
(1803). In that case, Chief Justice Marshall, writing for a 
unanimous Court, resolved one of the most elemental questions 
of American constitutional law, writing in renowned words that 
``[i]t is emphatically the province and duty of the Judicial 
Department to say what the law is.'' Chevron, of course, 
represents a quite different rule--notwithstanding Marbury, 
when a Federal agency interprets an ambiguous provision of a 
statute that it administers, it is actually the province of the 
Executive Branch to say what that law is, at least insofar as 
the agency chooses from within a range of ``permissible'' 
interpretations.
    Although the Court did not state as much when it decided 
Chevron, in the years since, the courts, particularly the U.S. 
Court of Appeals for the District of Columbia Circuit and the 
Supreme Court itself, have explained that the concept of 
Chevron deference rests on a judicial assumption that, in cases 
in which statutes are ambiguous, Congress has at least 
implicitly granted to the implementing administrative agency 
the authority to determine what the ambiguous terms mean, 
principally through regulation. See, e.g., Rettig v. Pension 
Benefit Guaranty Corp., 744 F.2d 133, 140-41 (D.C. Cir. 1984). 
This view, however, is difficult, if not impossible, to square 
with the Framers' intent in the Constitution to create a 
government of definite, limited, and separated powers. If, as 
Marbury holds, it is, under that separation of powers, the 
``province and duty of the Judicial Department to say what the 
law is,'' it is fair to ask whether Congress can in any way 
delegate to the Executive Branch that power held by the 
Judicial Branch. Similarly, it is fair to ask whether the 
Judiciary itself possesses any constitutional means to delegate 
that power to the Executive Branch, even if it wanted to. The 
Judiciary possesses power, under Article III of the 
Constitution, to decide cases and controversies. It possesses 
no power, however, to legislate--the means needed 
(prototypically, if not exclusively, through a constitutional 
amendment), to delegate or reassign the power of one branch to 
another.
    With respect to statutory law, it has likewise been 
suggested that Chevron conflicts flatly with the express terms 
of the Administrative Procedure Act of 1946 (APA), commonly 
considered to be the ``constitution'' of Federal administrative 
law. The APA authorizes Federal agencies to act with broad 
authority in numerous ways. With respect to judicial review of 
agency actions, however, the APA states unequivocally, in 5 
U.S.C. Sec. 706, that ``the reviewing court shall decide all 
relevant questions of law [and] interpret constitutional and 
statutory provisions. . . .''
    The Supreme Court in Chevron did not discuss how, if at 
all, its rule authorizing deference to Executive Branch 
interpretation of statutory provisions could be squared with 
these express terms of the APA. Nor have courts adequately 
explained that matter since. What is more, it is unquestionably 
fair to ask how, if at all, the assumption underlying Chevron 
deference can be valid in light of the APA. That assumption is 
that Congress implicitly delegated to agencies authority to 
state what the ``law'' contained in ambiguous statutory 
provisions ``is.'' But ever since the APA's enactment in 1946, 
Congress has legislated all statutes authorizing agency 
regulatory action against the backdrop of its specific decision 
in the APA to assign to the Judicial Branch exclusive power to 
``decide all relevant questions of law,'' including the power 
to ``interpret statutory provisions.''

 III. THE ROLE OF CHEVRON DEFERENCE IN THE MODERN ADMINISTRATIVE STATE 
          AND THE CONSTITUTIONAL SYSTEM OF CHECKS AND BALANCES

    The Chevron doctrine leaves administrative agencies 
relatively free in a wide range of circumstances to define the 
meaning of statutes they administer, and even their own 
jurisdictional limits. The courts' Chevron jurisprudence thus 
ranks high in importance to the modern administrative state--
perhaps second only to jurisprudence regarding delegation by 
Congress of legislative authority to the same agencies.
    That the Chevron doctrine is important to the 
administrative state does not mean, however, that it 
necessarily fosters good government. On the contrary, there is 
much reason to think that it does not. It empowers agencies to 
choose in changing ways which among alternative meanings is the 
meaning that the Federal Government will give a statute at any 
given time. This is thought by some to be a virtue allowing 
flexibility. By others, however, it is thought to be a vice 
that leads to uncertainty and unnecessary, protracted 
litigation that unsettles the rule of law. Perhaps more 
importantly, the Chevron doctrine also realigns the incentives 
for each Branch of Federal Government. Under Chevron's sway, 
rather than having a strong incentive to write statutes 
carefully and clearly to best express Congress' intent, 
Congress has an incentive to write less careful statutes that 
poorly express its intent, secure in the knowledge that 
regulators and courts can and will paper over legislative 
insufficiencies and insulate legislators against accountability 
for inadequate work. Agencies, meanwhile, rather than have an 
incentive to interpret statutes as faithfully and rigorously as 
possible (the best way to assure that courts might ultimately 
uphold their actions) have an incentive to play fast and loose 
with their interpretations and play politics with their 
choices, so long as they stay within the ``permissible'' range 
of alternatives for interpreting vague statutory terms. Courts, 
finally, have an incentive to perform a less rigorous job of 
statutory construction themselves. They also have an incentive 
and a means to avoid the more confrontational work of declaring 
Congress' work in statutory provisions void for vagueness or 
simply and clearly lacking in a delegation of authority to an 
agency--which contrasting results would leave the 
responsibility and accountability to fix poor statutes to the 
people's elected representatives in Congress.
    Not surprisingly, then, the modern administrative state is 
characterized by poor and gauzy legislation in which gaps and 
ambiguities are too often left intentionally by Congress, to be 
filled by unaccountable agency officials, whose work in turn is 
facilitated by deference from unaccountable judges. This is not 
the system of ``ambition . . . made to counteract ambition'' 
between the Branches envisioned by the Framers, a system 
intended to preserve liberty. The Federalist No. 51 (James 
Madison). This is instead a system of evasion of 
accountability, exploited by the unaccountable, and facilitated 
by the evasion of responsibility by the likewise unaccountable, 
all of which are threats to liberty.

                IV. A BRIEF HISTORY OF THE AUER DOCTRINE

    The doctrine of judicial deference to agencies' 
interpretations of ambiguities in their own regulations finds 
its roots in the Supreme Court's decision in Bowles v. Seminole 
Rock & Sand Co., 325 U.S. 410 (1945). In that case, the Court 
was called upon to interpret a wartime price control regulation 
issued by the Administrator of the Office of Price 
Administration. The Court justified its deference to the 
Administrator's interpretation as follows:

        Since this involves an interpretation of an 
        administrative regulation a court must necessarily look 
        to the administrative construction of the regulation if 
        the meaning of the words used is in doubt. The 
        intention of Congress or the principles of the 
        Constitution in some situations may be relevant in the 
        first instance in choosing between various 
        constructions. But the ultimate criterion is the 
        administrative interpretation, which becomes of 
        controlling weight unless it is plainly erroneous or 
        inconsistent with the regulation.''\2\
---------------------------------------------------------------------------
    \2\325 U.S. at 413-14.

    Many years later, post-Chevron, the Court directly 
addressed and re-affirmed the holding of Seminole Rock in Auer 
v. Robbins, 519 U.S. 452 (1997). Auer involved the 
interpretation of a Fair Labor Standards Act regulation 
promulgated by the Department of Labor. Citing Seminole Rock, 
the Court deferred to the Secretary of Labor's interpretation, 
reasoning that, ``[b]ecause the salary-basis test is a creature 
of the Secretary's own regulations, his interpretation of it 
is, under our jurisprudence, controlling unless `plainly 
erroneous or inconsistent with the regulation.'''\3\ The Court 
continued, ``[a] rule requiring the Secretary to construe his 
own regulations narrowly would make little sense, since he is 
free to write the regulations as broadly as he wishes, subject 
only to the limits imposed by the statute.''\4\
---------------------------------------------------------------------------
    \3\519 U.S. at 461 (citations omitted).
    \4\Id. at 463.
---------------------------------------------------------------------------
    In the years since Auer, however, the doctrine of deference 
to agencies' interpretations of their own regulations has come 
under increasing and justified criticism, much of it focusing 
on the perverse agency incentives and separation of powers 
concerns inherent in Auer. For example, as Justice Thomas wrote 
in dissent in the case of Thomas Jefferson Univ. v. Shalala, 
512 U.S. 504, 525 (1994), which involved the interpretation of 
Medicare regulations:

        Here, far from resolving ambiguity in the Medicare 
        program statutes, the Secretary has merely replaced 
        statutory ambiguity with regulatory ambiguity. It is 
        perfectly understandable, of course, for an agency to 
        issue vague regulations, because to do so maximizes 
        agency power and allows the agency greater latitude to 
        make law through adjudication rather than through the 
        more cumbersome rulemaking process. Nonetheless, agency 
        rules should be clear and definite so that affected 
        parties will have adequate notice concerning the 
        agency's understanding of the law.

    Not long thereafter, a prominent commentator characterized 
the Auer doctrine as providing that:

        [W]henever an agency applies a regulation--whether to 
        seek a civil penalty through an enforcement proceeding, 
        to adjudicate a claim for Federal benefits, or even to 
        determine the means of calculating a prisoner's 
        incarceration--the governing regulation means what the 
        agency says it means unless the reviewing court can 
        conclude that the agency is ``plainly wrong,'' 
        [thereby] mak[ing] it easier for the agency simply to 
        issue vague regulations and then put off difficult 
        policy questions until the relatively less demanding 
        implementation stage.\5\
---------------------------------------------------------------------------
    \5\See John F. Manning, Constitutional Structure and Judicial 
Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 
612, 615-16 (1996).

    Perhaps the most famous and pivotal critique of Auer 
deference was lodged by the late-Justice Scalia in his 
concurrence in Talk America, Inc. v. Michigan Bell Telephone 
---------------------------------------------------------------------------
Co., 564 U.S. 50 (2011). As Justice Scalia argued:

        [W]hile I have in the past uncritically accepted 
        [Auer's] rule, I have become increasingly doubtful of 
        its validity. On the surface, it seems to be a natural 
        corollary--indeed, an a fortiori application--of the 
        rule that we will defer to an agency's interpretation 
        of the statute it is charged with implementing, see 
        Chevron U. S. A. v. Natural Resources Defense Council, 
        Inc., 467 U. S. 837 (1984). But it is not. When 
        Congress enacts an imprecise statute that it commits to 
        the implementation of an executive agency, it has no 
        control over that implementation (except, of course, 
        through further, more precise, legislation). The 
        legislative and executive functions are not combined. 
        But when an agency promulgates an imprecise rule, it 
        leaves to itself the implementation of that rule, and 
        thus the initial determination of the rule's meaning. 
        And though the adoption of a rule is an exercise of the 
        executive rather than the legislative power, a properly 
        adopted rule has fully the effect of law. It seems 
        contrary to fundamental principles of separation of 
        powers to permit the person who promulgates a law to 
        interpret it as well. ``When the legislative and 
        executive powers are united in the same person, or in 
        the same body of magistrates, there can be no liberty; 
        because apprehensions may arise, lest the same monarch 
        or senate should enact tyrannical laws, to execute them 
        in a tyrannical manner.'' Montesquieu, Spirit of the 
        Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. 
        Nugent transl. 1949).

        Deferring to an agency's interpretation of a statute 
        does not encourage Congress, out of a desire to expand 
        its power, to enact vague statutes; the vagueness 
        effectively cedes power to the Executive. By contrast, 
        deferring to an agency's interpretation of its own rule 
        encourages the agency to enact vague rules which give 
        it the power, in future adjudications, to do what it 
        pleases. This frustrates the notice and predictability 
        purposes of rulemaking, and promotes arbitrary 
        government.\6\
---------------------------------------------------------------------------
    \6\564 U.S. at 68-69.

Two terms later, in Decker v. Northwest Environmental Defense 
Center, 133 S.Ct. 1326, 1339-41 (2013), Justice Scalia was even 
---------------------------------------------------------------------------
more definitive in his criticism of Auer:

        For decades, and for no good reason, we have been 
        giving agencies the authority to say what their rules 
        mean, under the harmless-sounding banner of 
        ``defer[ring] to an agency's interpretation of its own 
        regulations.'' . . . Respondent has asked us, if 
        necessary, to ```reconsider Auer.''' I believe that it 
        is time to do so. . . . While the implication of an 
        agency power to clarify the statute is reasonable 
        enough, there is surely no congressional implication 
        that the agency can resolve ambiguities in its own 
        regulations. For that would violate a fundamental 
        principle of separation of powers--that the power to 
        write a law and the power to interpret it cannot rest 
        in the same hands. . . . Auer is not a logical 
        corollary to Chevron but a dangerous permission slip 
        for the arrogation of power.

    Finally, in his last full term on the bench, Justice Scalia 
made plain his desire actually to overturn Auer, in his 
concurrence in Perez v. Mortgage Bankers' Ass'n, 135 S.Ct. 
1199, 1212-13 (2015):

        I am unaware of any . . . history justifying deference 
        to agency interpretations of its own regulations. And 
        there are weighty reasons to deny a lawgiver the power 
        to write ambiguous laws and then be the judge of what 
        the ambiguity means. See Decker v. Northwest 
        Environmental Defense Center, 568 U. S. ___, ___-___, 
        133 S.Ct. 1326, 1339-1342, 185 L.Ed.2d 447 (2013) 
        (SCALIA, J., concurring in part and dissenting in part) 
        (slip op., at 1-7). I would therefore restore the 
        balance originally struck by the APA with respect to an 
        agency's interpretation of its own regulations, not by 
        rewriting the Act in order to make up for Auer, but by 
        abandoning Auer and applying the Act as written. The 
        agency is free to interpret its own regulations with or 
        without notice and comment; but courts will decide--
        with no deference to the agency--whether that 
        interpretation is correct.

 V. THE POTENTIAL FOR A LEGISLATIVE SOLUTION TO PROBLEMS PRESENTED BY 
                         THE CHEVRON DOCTRINE.

    In some cases of questions regarding the standards for 
judicial decision-making, it is fair for Congress to consider 
whether to leave resolution of those matters to the Judicial 
Branch to work out on its own. The question of Chevron and Auer 
deference, however, is not the ordinary question. The Chevron 
and Auer doctrines appear inconsistent with Marbury and the 
separation of powers; the Judicial Branch for more than thirty 
years has revealed the difficulty it has faced in cleanly, 
clearly, simply, and definitively explicating whether, why, 
how, and specifically when it becomes the Executive Branch's 
power to ``determine what the law is,'' not the courts', under 
the Chevron doctrine; instability in the Auer doctrine has 
begun to emerge as well; the Chevron doctrine rests on a 
judicial assumption that Congress has decided to delegate such 
power in some instances to the Executive Branch, and that the 
Judicial Branch should afford comity to that decision; and, the 
express terms of the APA, the general backdrop for all relevant 
Federal legislation since 1946, specifically belie that 
assumption by the Judicial Branch.
    Accordingly, it is appropriate for Congress to overturn 
Chevron and Auer statutorily, rather than wait for the Court to 
address their numerous deficiencies. H.R. 4768, the 
``Separation of Powers Restoration Act of 2016,'' accomplishes 
these goals by amending the APA's relevant provision, 5 U.S.C. 
Sec. 706, to insert a de novo review term to render it as 
explicit as possible that courts, not agencies, must decide all 
questions of law. The bill then applies that clarified standard 
explicitly to all questions of law concerning the 
interpretation of constitutional, statutory and regulatory 
provisions. By applying the de novo term to the interpretation 
of statutory provisions, the bill overturns Chevron. By 
applying the term to the interpretation of regulatory 
provisions, the bill overturns Auer. Terms of the amendment in 
the nature of a substitute adopted by the Committee guarantee 
that those results will extend not only to cases reviewed under 
the APA's judicial review chapter, ch. 7 of title 5, but also 
under the assorted ``mini-APAs'' present in the United States 
Code.
    Among issues discussed in the Committee's record for this 
bill, including at the hearings discussed below, two matters 
bear further discussion. These are the questions of the 
potential for a reemergence of judicial policy activism 
following the bill's enactment and the possibility of 
incorporating the Skidmore factors or a variation thereof into 
the bill.
    The Committee strongly disfavors judicial activism. Because 
the bill is limited to the courts' review of pure questions of 
law, and because it represents a strong congressional reaction 
against sister-branch activism that defies Congress' true 
statutory intent--albeit executive branch activism, not 
judicial activism--the bill should be understood by the courts 
not to condone or license judicial activism. On the contrary, 
it should be understood as a strong rejection of activist abuse 
under the guise of statutory and regulatory interpretation, 
regardless of whether undertaken by the Article II or the 
Article III branch. Post-enactment, the Committee will exercise 
vigilant oversight to detect whether judicial activism emerges 
and stand ready to undertake additional legislation to respond 
to that mischief, if it arises.
    With regard to incorporation of the Skidmore factors, the 
Committee acknowledges that there is merit in the Skidmore 
decision's emphasis that courts should consider the 
``thoroughness evident in [the agency's] consideration,'' the 
``validity of [the agency's] reasoning,'' and the agency-
offered interpretation's ``consistency with earlier and later 
[agency] pronouncements.'' Clearly, courts must not defer to 
agency interpretations on those grounds, but it will be helpful 
to the courts in the performance of their tasks if they are 
assisted by thorough, valid, and consistent agency 
interpretation rooted in the agency's exercise of its 
expertise. But courts reviewing agency actions will necessarily 
be presented with the agency's administrative record and the 
agency's briefs and oral arguments. These will inherently 
demonstrate to the reviewing court the thoroughness evident in 
the agency's consideration, the validity of the agency's 
reasoning, and the consistency of the agency's interpretation 
over time. Knowing that the courts must no longer defer to the 
agency, but must instead be persuaded in the course of de novo 
review of the best interpretation of a statute or regulation, 
the agency will already be provided by the bill with a strong 
incentive to bring to bear before the court the most thorough 
and thoroughly articulated agency consideration of the 
interpretive question, as well as the most valid and consistent 
reasoning. Thus, as was suggested by hearing testimony before 
the Subcommittee on Regulatory Reform, Commercial and Antitrust 
Law, it is not necessary to incorporate the Skidmore factors 
into the text of the bill for the courts to be able to benefit 
from them.\7\ Accordingly, the Committee declined to 
incorporate any formulation of the Skidmore factors into the 
bill at this time.
---------------------------------------------------------------------------
    \7\See Testimony of Prof. John F. Duffy, Legislative Hearing on 
H.R. 4768: ``The Separation of Powers Restoration Act of 2016,'' 
Subcommittee on Regulatory Reform, Commercial and Antitrust Law (May 
17, 2016) at 8-9 (available at https://judiciary.house.gov/hearing/h-r-
4768-separation-powers-restoration-act-2016/).
---------------------------------------------------------------------------

                                Hearings

    On May 17, 2016, the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law conducted a legislative hearing on 
the topic of ``H.R. 4678, the `Separation of Powers Restoration 
Act of 2016.''' Testimony was received from: Professor John 
Duffy, University of Virginia School of Law; Professor Jack 
Beerman, Boston University School of Law; Jeffrey Bossert 
Clark, Esq., Partner, Kirkland & Ellis LLC and former Deputy 
Assistant Attorney General for the Environment and Natural 
Resources Division, U.S. Department of Justice; Adam J. White, 
Fellow, Hoover Institution and Adjunct Professor, Antonin 
Scalia School of Law at George Mason University; Professor 
Ronald M. Levin, Washington University School of Law; and, John 
D. Walke, Esq., Director, Clean Air Project, Climate & Clean 
Air Program.
    Before the bill's introduction, on March 15, 2016, the 
Subcommittee held an oversight hearing on matters related to 
the bill. Witnesses at that hearing included: Professor 
Jonathan Turley, The George Washington University Law School; 
Professor Duffy; Professor George Shepherd, Emory University 
School of Law; Professor Beerman; Professor Richard Pierce, The 
George Washington University School of Law; and, Professor 
Emily Hammond, The George Washington University School of Law.

                        Committee Consideration

    On June 8, 2016, the Committee met in open session and 
ordered the bill H.R. 4768 favorably reported, with an 
amendment, by a rollcall vote of 12 to 8, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 4768.
    1. Amendment #2, offered by Mr. Johnson. The Amendment 
would carve out of the bill agency actions based on statutes 
that expressly grant agency discretion. Defeated 5 to 10.

                             ROLLCALL NO. 1
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      5      10
------------------------------------------------------------------------


    2. Amendment #3, offered by Mr. Cicilline. The Amendment 
would carve out of the bill consumer safety regulations from 
the Food and Drug Administration. Defeated 6 to 10.

                             ROLLCALL NO. 2
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      6
------------------------------------------------------------------------


    3. Amendment #4, offered by Ms. Jackson Lee. The Amendment 
would carve out of the bill national security regulations from 
the Department of Homeland Security. Defeated 5 to 8.

                             ROLLCALL NO. 3
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      5       8
------------------------------------------------------------------------


    4. Amendment #5, offered by Mr. Conyers. The Amendment 
would carve out of the bill regulations on lead and copper in 
drinking water. Defeated 4 to 10.

                             ROLLCALL NO. 4
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      4      10
------------------------------------------------------------------------


    5. Motion to table the appeal of the ruling of the Chair on 
the germaneness of Amendment #6, offered by Mr. Cicilline. The 
Amendment would insert a clarification that race, ethnicity, or 
national origin may not serve as a basis for judicial 
disqualification. Motion to Table the Appeal approved 12 to 6.

                             ROLLCALL NO. 5
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................              X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................     12       6
------------------------------------------------------------------------


    6. Motion to report H.R. 4768 as amended favorably to the 
House of Representatives. Approved 12 to 8.

                             ROLLCALL NO. 6
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................              X
Mr. Peters (CA)................................              X
                                                ------------------------
    Total......................................     12       8
------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4768, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 14, 2016.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4768, the 
``Separation of Powers Restoration Act of 2016.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Marin 
Burnett, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




        H.R. 4768--Separation of Powers Restoration Act of 2016.

      As ordered reported by the House Committee on the Judiciary 
                            on June 8, 2016.




    H.R. 4768 would authorize 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 (de novo review).
    Under the legislation, the courts could overturn some 
agency decisions that they would have upheld under current law. 
Some of those decisions could affect the budget by overturning 
regulations that affect discretionary spending, direct 
spending, and revenues. However, CBO has no basis for 
estimating either the likelihood that such actions would be 
overturned or what the effects on the budget might be.
    Because enacting the legislation could affect direct 
spending and revenues, pay-as-you-go procedures apply. For 
example the legislation could affect the timing or content of 
rules that concern Federal entitlement programs or rules 
related to the collection of fees. CBO also cannot determine 
whether enacting H.R. 4768 would increase net direct spending 
or on-budget deficits in any of the four consecutive 10-year 
periods beginning in 2027.
    H.R. 4768 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Marin Burnett. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 4768 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 4768 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
4768 clarifies the nature of judicial review of agency 
interpretations of statutory and regulatory provisions to 
preclude continued deference by courts to such agency 
interpretations.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 4768 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes H.R. 4768 as reported by 
the Committee.
Section 1. Short Title.
    Section 1 sets forth the short title of the bill as the 
``Separation of Powers Restoration Act of 2016.''
Section 2. Judicial Review of Statutory and Regulatory Interpretations.
    Section 2 amends section 706 of title 5 to explicitly state 
that courts are to decide all relevant questions of law de 
novo, including all questions of the interpretation of 
constitutional, statutory, and regulatory provisions.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


CHAPTER 7--JUDICIAL REVIEW

           *       *       *       *       *       *       *


Sec. 706. Scope of review

      [To the extent necessary] (a) To the extent necessary to 
decision and when presented, the reviewing court shall [decide 
all relevant questions of law, interpret constitutional and 
statutory provisions, and] determine the meaning or 
applicability of the terms of an agency action 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. [The 
reviewing court shall--]
    (b) The reviewing court shall--
            (1) compel agency action unlawfully withheld or 
        unreasonably delayed; and
            (2) hold unlawful and set aside agency action, 
        findings, and conclusions found to be--
                    (A) arbitrary, capricious, an abuse of 
                discretion, or otherwise not in accordance with 
                law;
                    (B) contrary to constitutional right, 
                power, privilege, or immunity;
                    (C) in excess of statutory jurisdiction, 
                authority, or limitations, or short of 
                statutory right;
                    (D) without observance of procedure 
                required by law;
                    (E) unsupported by substantial evidence in 
                a case subject to sections 556 and 557 of this 
                title or otherwise reviewed on the record of an 
                agency hearing provided by statute; or
                    (F) unwarranted by the facts to the extent 
                that the facts are subject to trial de novo by 
                the reviewing court.
In making the foregoing determinations, the court shall review 
the whole record or those parts of it cited by a party, and due 
account shall be taken of the rule of prejudicial error.

                            Dissenting Views

                              INTRODUCTION

    H.R. 4768, the ``Separation of Powers Restoration Act of 
2016,'' would require a Federal court to review de novo agency 
rulemakings and statutory interpretations and thereby override 
the Supreme Court's long-recognized principle of judicial 
deference to agencies' statutory interpretations, which 
recognizes the value of agency expertise and political 
accountability in rulemaking. In effect, H.R. 4768 would 
empower a generalist court lacking the expertise, resources, 
and public input to nullify agency action solely on policy 
grounds. As a result of the heightened review standard imposed 
by the bill, the rulemaking process will become even more 
costly and time-consuming because it would force agencies to 
adopt even more detailed factual records and explanations, 
which would further delay the promulgation of critical rules 
safeguarding public health, safety, and the environment. 
Furthermore, without any constraint on this review, courts may 
ignore the administrative record altogether, raising potential 
separation of powers concerns as courts substitute agencies' 
expertise and congressionally delegated authority with their 
own inexpert views and substantive preferences. Lastly, H.R. 
4768 is a dangerous solution to a non-existent problem.
    In recognition of these serious concerns, the Coalition for 
Sensible Safeguards--an alliance of more than 150 consumer, 
labor, research, faith, and other public interest groups--
strongly opposes this legislation, explaining that it ``will 
make our system of regulatory safeguards weaker by allowing for 
judicial activism at the expense of agency expertise and 
congressional authority, thereby resulting in unpredictable 
outcomes and regulatory uncertainty for all stakeholders.''\1\ 
A group of leading administrative law scholars also oppose H.R. 
4768, stating that it is motivated by misplaced objections to 
regulatory policy, rather than legitimate judicial review 
concerns, and that the bill presents separation of powers 
concerns and will generate unnecessary confusion.\2\
---------------------------------------------------------------------------
    \1\Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary 
from the Coalition for Sensible Safeguards (June 8, 2016) (on file with 
Democratic staff of the H. Comm. on the Judiciary). Current members of 
the Coalition include: AFL-CIO; Alliance for Justice; American 
Association of University Professors; American Federation of State, 
County and Municipal Employees; American Federation of Teachers 
Americans for Financial Reform; American Lung Association; American 
Rivers; American Values Campaign; American Sustainable Business 
Council; BlueGreen Alliance; Campaign for Contract Agriculture Reform; 
Center for Effective Government; Center for Digital Democracy; Center 
for Food Safety; Center for Foodborne Illness Research & Prevention; 
Center for Independent Living; Center for Science in the Public 
Interest; Citizens for Sludge-Free Land; Clean Air Watch; Clean Water 
Network; Consortium for Citizens with Disabilities; Consumer Federation 
of America; Consumers Union; CounterCorp; Cumberland Center for Peace & 
Justice; Demos; Economic Policy Institute; Edmonds Institute; 
Environment America; Farmworker Justice; Free Press; Friends of the 
Earth; Green for All; Health Care for America Now; In the Public 
Interest; International Brotherhood of Teamsters; International Center 
for Technology Assessment; International Union, United Automobile, 
Aerospace & Agricultural Implement Workers of America (UAW); League of 
Conservation Voters; Los Angeles Alliance for a New Economy; Main 
Street Alliance; National Association of Consumer Advocates; National 
Center for Healthy Housing; National Consumers League; National Council 
for Occupational Safety and Health; National Employment Law Project; 
National Lawyers Guild, Louisville Chapter; National Women's Health 
Network; National Women's Law Center; Natural Resources Defense 
Council; Network for Environmental & Economic Responsibility of United 
Church of Christ; New Jersey Work Environment Council; New York 
Committee for Occupational Safety and Health; Oregon PeaceWorks; People 
for the American Way; Protect All Children's Environment; Public 
Citizen; Reproductive Health Technologies Project; Safe Tables Our 
Priority; 
Sierra Club; Service Employees International Union; Southern Illinois 
Committee for Occupational Safety and Health; The Arc of the United 
States; The Partnership for Working Families; Trust for America's 
Health; U.S. Chamber Watch; U.S. PIRG; Union of Concerned Scientists; 
Union Plus; United Food and Commercial Workers Union; United 
Steelworkers; Waterkeeper Alliance; and Worksafe. Coalition for 
Sensible Safeguards--Our Members, http://sensiblesafeguards.org/our-
members.
    \2\Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary 
from Joel B. Eisen, Professor Law, University of Richmond School of 
Law, and Emily Hammond, Professor of Law, George Washington University 
Law School, et al. (June 8, 2016) (on file with Democratic staff of the 
H. Comm. on the Judiciary).
---------------------------------------------------------------------------
    For these reasons and those discussed below, we 
respectfully dissent and urge our colleagues to oppose this 
seriously flawed bill.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    Section 706 of the Administrative Procedure Act (APA)\3\ 
requires a Federal court, when necessary to decision and when 
presented, to ``decide all relevant questions of law, interpret 
constitutional and statutory provisions, and determine the 
meaning or applicability of the terms of an agency action.''\4\ 
Section 706, in turn, sets forth various criteria that the 
court must consider in determining whether such agency action 
should be held unlawful and set aside.\5\
---------------------------------------------------------------------------
    \3\5 U.S.C. Sec. Sec. 551 et seq. (2016).
    \4\5 U.S.C. Sec. 706 (2016).
    \5\Section 706 requires the court to:
---------------------------------------------------------------------------
      (1) compel agency action unlawfully withheld or 
      unreasonably delayed; and
      (2) hold unlawful and set aside agency action, findings, 
      and conclusions found to be--
          (A) Garbitrary, capricious, an abuse of discretion, or 
      otherwise not in accordance with law;
          (B) Gcontrary to constitutional right, power, 
      privilege, or immunity;
          (C) Gin excess of statutory jurisdiction, authority, or 
      limitations, or short of statutory right;
          (D) Gwithout observance of procedure required by law;
          (E) Gunsupported by substantial evidence in a case 
      subject to sections 556 and 557 of this title or otherwise 
      reviewed on the record of an agency hearing provided by 
      statute; or
          (F) Gunwarranted by the facts to the extent that the 
      facts are subject to trial de novo by the reviewing court.
Id.
    H.R. 4768 amends section 706 to require the court to decide 
de novo all relevant questions of law, including the 
interpretation of constitutional and statutory provisions, and 
rules made by agencies. The bill also includes a supermandate 
ensuring that its provisions override all other laws, even 
those that prohibit judicial review. Specifically, it provides 
that ``[n]o law may exempt any such civil action from the 
application of this section except by specific reference to 
this section.''

                               BACKGROUND

                   I. OVERVIEW OF FEDERAL RULEMAKING

    Federal regulations impact nearly every aspect of our lives 
and are ``one of the basic tools of government used to 
implement public policy.''\6\ Enacted in 1946, the 
Administrative Procedure Act (APA) establishes the minimum 
rulemaking and formal adjudication requirements for all 
administrative agencies.\7\ The APA's baseline procedural 
requirements serve to maintain a balance between agency 
flexibility and the requirements of due process. As 84 leading 
administrative law academics have observed, ``The APA has 
served for nearly 70 years as a kind of Constitution for 
administrative agencies and the affected public--flexible 
enough to accommodate the variety of agencies operating under 
it and the changes in modern life.''\8\ In addition to the APA, 
numerous other procedural and analytical requirements have been 
imposed on the rulemaking process by Congress and various 
presidents.\9\ These requirements focus ``predominately on 
agencies' development of new rules,'' according to the 
Government Accountability Office (GAO).\10\
---------------------------------------------------------------------------
    \6\Curtis W. Copeland, Cong. Research Serv., RL 32240, The Federal 
Rulemaking Process: An Overview 1 (2005).
    \7\The APA defines ``rulemaking'' as the ``agency process for 
formulating, amending or repealing a rule.'' 5 U.S.C. Sec. 551(5) 
(2016). A ``rule'' is defined as ``an agency statement of general or 
particular applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the organization, 
procedure, or practice requirements of an agency.'' 5 U.S.C. 
Sec. 551(4) (2016).
    \8\Letter from 84 administrative law academics to H. Judiciary 
Comm. Chair Bob Goodlatte (R-VA) and H. Judiciary Comm. Ranking Member 
John Conyers, Jr. (D-MI), 2 (Jan. 12, 2015) (on file with the H. Comm. 
on the Judiciary, Democratic staff).
    \9\Examples of legislative mandates include the Unfunded Mandates 
Reform Act, Pub. L. No. 104-4 (1995); the Regulatory Flexibility Act, 
Pub. L. No. 96-354, 94 Stat. 1164, 1169 (1980); and the Congressional 
Review Act, Pub. L. No. 104-121 (1996). In addition, both Republican 
and Democratic Presidents have issued executive orders mandating 
additional procedural and analytical requirements for Federal 
rulemakings. See, e.g., Exec. Ord. 12,866, 58 Fed. Reg. 190 (Sept. 30, 
1993) (outlining requirements for cost-benefit analysis and review by 
the Office of Information and Regulatory Affairs for significant rules 
issued by executive branch agencies).
    \10\U.S. Gov't Accountability Off., GAO-07-791, Reexamining 
Regulations: Opportunities Exist to Improve Effectiveness and 
Transparency of Retrospective Reviews 1 (2007).
---------------------------------------------------------------------------
    In general, proposed rules go through an extensive vetting 
process that many believe is already too ossified and burdened 
by delay.\11\ The APA defines ``rulemaking'' as the ``agency 
process for formulating, amending or repealing a rule.''\12\ 
The process for informal rulemaking, commonly referred to as 
notice-and-comment rulemaking, is outlined in section 553 of 
the APA, and is the process that agencies follow for 
promulgating the rules in the overwhelming majority of 
cases.\13\
---------------------------------------------------------------------------
    \11\See, e.g., Richard J. Pierce, Jr., Rulemaking Ossification Is 
Real: A Response to Testing the Ossification Thesis, 80 Geo. Wash. L. 
Rev. 1493 (2012); H.R. 348, the ``Responsibly And Professionally 
Invigorating Development Act of 2015'' (RAPID Act); H.R. 712, the 
``Sunshine for Regulatory Decrees and Settlements Act of 2015''; and, 
H.R. 1155, the ``Searching for and Cutting Regulations that are 
Unnecessarily Burdensome Act of 2015'' (SCRUB Act): Hearing Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 114th Cong. 1, 4-5 (2015) (statement of Amit 
Narang, Regulatory Policy Advocate, Public Citizen), http://
judiciary.house.gov/_cache/files/cfc2a8c6-729e-4e77-9f9f-561f60f1c153/
narang-
testimony.pdf.
    \12\5 U.S.C. Sec. 551(5) (2016).
    \13\5 U.S.C. Sec. 553 (2016). Agencies may also choose or may be 
required by statute to use other rulemaking procedures, including 
formal rulemaking, negotiated rulemaking, and hybrid or expedited 
approaches, which generally tend to have greater procedural 
requirements and be subject to stricter judicial review than section 
553 notice-and-comment rulemaking. Though rarely used, agencies must 
sometimes follow the APA's formal rulemaking procedures ``when rules 
are required by statute to be made on the record after opportunity for 
an agency hearing.'' 5 U.S.C. Sec. 553(c) (2016).
---------------------------------------------------------------------------
    In the informal notice-and-comment rulemaking process, 
agencies are required to provide the public with adequate 
notice of a proposed rule and a meaningful opportunity to 
comment on the rule's content.\14\ A notice is ``adequate'' if 
an agency publishes a notice of proposed rulemaking in the 
Federal Register and the notice contains the time, place, and 
nature of public rulemaking proceedings, reference to the legal 
authority under which the rule is proposed, and either the 
terms or substance of the proposed rule or a description of the 
subjects and issues involved.\15\ With respect to the required 
public comment period, the agency must provide the public with 
the opportunity to submit written ``data, views, or 
arguments.''\16\ There is no minimum time period during which 
an agency must accept comments, but courts reviewing an 
agency's compliance with this APA requirement inquire as to 
whether the opportunity to comment was ``adequate,'' which may 
inform how long the comment period should be for a given rule.
---------------------------------------------------------------------------
    \14\5 U.S.C. Sec. 553(b), (c) (2016).
    \15\5 U.S.C. Sec. 553(b) (2016).
    \16\5 U.S.C. Sec. 553(c) (2016).
---------------------------------------------------------------------------
    After the comment period closes, the agency must consider 
the public's comments and incorporate into the adopted rule a 
``concise general statement'' of the ``basis and purpose'' of 
the final rule.\17\ From this general statement, the public 
should be able to obtain a general idea of the purpose of and 
basic justification for the rule. The final rule and the 
general statement must be published in the Federal Register not 
less than 30 days before the rule's effective date.\18\
---------------------------------------------------------------------------
    \17\Id.
    \18\5 U.S.C. Sec. 553(d) (2016). The APA exempts from all of its 
informal rulemaking requirements rules relating to certain subject 
matter areas. These rules include those governing: (1) ``a military or 
foreign affairs function of the United States;'' (2) ``a matter 
relating to agency management or personnel;'' or (3) a matter relating 
to ``public property, loans, grants, benefits, or contracts.'' 5 U.S.C. 
Sec. 553(a) (2016). The APA also exempts from the notice-and comment 
requirements rules that are issued for ``good cause,'' i.e., where an 
agency finds that ``notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. Sec. 553(b) (2016).
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       II. JUDICIAL DEFERENCE TO AGENCY STATUTORY INTERPRETATIONS

    Section 702 of the APA subjects agency rulemaking to 
judicial review, thereby providing a statutory mechanism for 
relief for ``any person suffering legal wrong because of agency 
action, or adversely affected or aggrieved by agency action 
within the meaning of a relevant statute.''\19\ Section 706(2) 
of the APA requires a reviewing court to set aside as unlawful 
agency action, findings, and conclusions when found to be:
---------------------------------------------------------------------------
    \19\5 U.S.C. Sec. 702 (2016).

        (A)
            Larbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with law;

        (B)
            Lcontrary to constitutional right, power, 
        privilege, or immunity;

        (C)
            Lin excess if statutory jurisdiction, authority, or 
        limitations, or short of statutory right;

        (D)
            Lwithout observance of procedure required by law;

        (E)
            Lunsupported by substantial evidence in [a formal 
        rulemaking] or otherwise reviewed on the record of an 
        agency hearing provided by statute; or

        (F)
            Lunwarranted by the facts to the extent that the 
        facts are subject to trial de novo by the reviewing 
        court.\20\
---------------------------------------------------------------------------
    \20\5 U.S.C. Sec. 706(2) (A)-(F) (2016).

    There is a strong presumption that Congress intends 
judicial review of administrative action to be available,\21\ 
with two exceptions: when statutes specifically preclude 
judicial review and when Congress provides agencies with 
statutory discretion.\22\ A court, however, always has the 
authority to review the constitutionality of agency action, 
including those actions that are otherwise unreviewable.\23\
---------------------------------------------------------------------------
    \21\Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 667 
(1986).
    \22\5 U.S.C. Sec. 701 (2016).
    \23\See Webster v. Doe, 486 U.S. 592 (1988); Oestereich v. 
Selective Service System, 393 U.S. 233 (1968).
---------------------------------------------------------------------------
    While the APA requires reviewing courts to decide all 
relevant questions of law, interpret statutes, and determine 
the meaning of agency action, it is well-established that 
courts ``must give substantial deference to an agency's 
interpretation of its own regulations.''\24\ A reviewing court 
may only invalidate an agency rule or formal adjudication when 
it violates a constitutional provision or when the agency's 
rule exceeds its statutory authority to issue the rule as 
clearly expressed by Congress.\25\ Thus, courts cannot simply 
strike down a rule based on policy grounds.\26\ Indeed, the 
Supreme Court has routinely observed that the scope of judicial 
review is narrow and ``a court is not to substitute its 
judgment for that of the agency.''\27\ This is true even where 
an agency changes its previous interpretation of a regulation 
following a change in Administration, so long as it provides 
adequate grounds for doing so.\28\
---------------------------------------------------------------------------
    \24\Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 103 (1995).
    \25\Chevron U.S.A., Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837 (1984).
    \26\Id.
    \27\Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. 
Auto. Ins. Co., 463 U.S. 29, 30 (1983); Judulang v. Holder, 132 S. Ct. 
476, 483 (2011).
    \28\Nat'l Cable & Telecommunications Ass'n v. Brand X Internet 
Servs., 545 U.S. 967, 982-83 (2005) (``Only a judicial precedent 
holding that the statute unambiguously forecloses the agency's 
interpretation, and therefore contains no gap for the agency to fill, 
displaces a conflicting agency construction.''); Auer v. Robbins, 519 
U.S. 452, 461 (1997) (``Because the salary-basis test is a creature of 
the Secretary's own regulations, his interpretation of it is, under our 
jurisprudence, controlling unless `plainly erroneous or inconsistent 
with the regulation.''').
---------------------------------------------------------------------------
    Nevertheless, courts retain an important role in 
determining whether an agency action is permissible, arbitrary, 
or capricious.\29\ The Supreme Court held in the seminal case 
on judicial deference, Chevron U.S.A., Inc. v. Natural 
Resources Defense Council, that courts must give ``considerable 
weight'' to an agency's construction of a statute it 
administers.\30\ Professor Ron Levin, Professor of Law, 
Washington University in St. Louis, and Chair, Judicial Review 
Committee for the Administrative Conference of the United 
States, explains the rationale for this deference:
---------------------------------------------------------------------------
    \29\Judulang v. Holder, 132 S. Ct. 476, 483-84 (2011).
    \30\Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 
837, 866 (1984) (internal quotes omitted).

        The justification for Chevron deference rests in part 
        on respect for congressional delegation. It recognizes 
        that Congress often decides to entrust policymaking 
        authority in certain areas; when it does so, and the 
        agency acts within the scope of that delegation as the 
        court understands it, a court is obliged to honor the 
        legislature's expectations by upholding a rational 
        exercise of that authority even where the agency 
        reaches a conclusion that the reviewing court would not 
        have reached.\31\
---------------------------------------------------------------------------
    \31\Examining the Proper Role of Judicial Review in the Federal 
Regulatory Process: Hearing Before the Subcomm. on Regulatory Affairs 
and Fed. Management of the S. Comm. on Homeland Security and Government 
Affairs, 114th Cong. 38 (2015) (statement of Prof. Ron Levin), https://
www.gpo.gov/fdsys/pkg/CHRG-114shrg94906/pdf/CHRG-114shrg94906.pdf.

    Under Chevron, courts utilize a two-step process to 
determine whether an agency's statutory interpretation is 
controlling.\32\ Under step one, a reviewing court must 
determine whether an agency's interpretation of a statute is 
valid by applying the traditional tools of statutory 
interpretation. \33\ Deference to an agency's interpretation of 
an underlying statute is appropriate where Congress has 
generally delegated authority to the agency to ``make rules 
carrying the force of law, and that the agency interpretation 
claiming deference was promulgated in the exercise of that 
authority.''\34\ Courts assume that Congress intended to 
delegate such ``gap-filling'' authority where a ``rule sets 
forth important individual rights and duties, the agency 
focuses fully and directly upon the issue and uses full notice-
and-comment procedures, and the resulting rule falls within the 
statutory grant of authority and is reasonable.''\35\ Where an 
agency acts clearly within the scope of a congressional 
delegation of authority, the inquiry ends.\36\
---------------------------------------------------------------------------
    \32\But see Matthew C. Stephenson & Adrian Vermeule, Chevron Has 
Only One Step, 95 Va. L. Rev. 597 (2009) (``This structure artificially 
divides one inquiry into two steps. The single question is whether the 
agency's construction is permissible as a matter of statutory 
interpretation; the two Chevron steps both ask this question, just in 
different ways.'').
    \33\Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 
837, 843 n.9 (1984) (``If a court, employing traditional tools of 
statutory construction, ascertains that Congress had an intention on 
the precise question at issue, that intention is the law and must be 
given effect.'').
    \34\Mayo Found. for Med. Educ. & Research v. United States, 562 
U.S. 44, 57 (2011).
    \35\Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007).
    \36\Mayo Found. for Med. Educ. & Research v. United States, 562 
U.S. 44, 57 (2011); Wells Fargo Bank, N.A. v. F.D.I.C., 310 F.3d 202, 
205-06 (D.C.Cir.2002) (``Because the judiciary functions as the final 
authority on issues of statutory construction, an agency is given no 
deference at all on the question whether a statute is ambiguous.'').
---------------------------------------------------------------------------
    If, however, a court ``determines Congress has not directly 
addressed the precise question at issue, the court does not 
simply impose its own construction on the statute.''\37\ 
Rather, Chevron step two requires that a reviewing court defer 
to any ``permissible'' interpretation of the law by an agency 
where a statute is silent or ambiguous.\38\ The Court has 
clarified that an agency's statutory interpretation is 
permissible where it provides a reasoned explanation of its 
action, which includes ``whether the decision was based on a 
consideration of the relevant factors and whether there has 
been a clear error of judgment.''\39\ Writing for a unanimous 
majority in 2011, Justice Elena Kagan observed in Judulang v. 
Holder that when ``an administrative agency sets policy, it 
must provide a reasoned explanation for its action,'' noting 
that this requirement is ``not a high bar, but it is an 
unwavering one.''\40\ Also referred to as the ``hard look'' 
doctrine, this type of heightened review involves a thorough 
examination of the administrative record and the agency's 
explanation of its statutory authority.\41\ Relevant factors in 
this analysis include the agency's expertise in producing an 
administrative record, delegated authority by Congress, and the 
policy nature of the decision.\42\
---------------------------------------------------------------------------
    \37\Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 
837, 843 (1984).
    \38\Id. at 842-43.
    \39\Judulang v. Holder, 132 S. Ct. 476, 483-84 (2011) citing Motor 
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
463 U.S. 29, 43 (1983) (``Normally, an agency rule would be arbitrary 
and capricious if the agency has relied on factors which Congress has 
not intended it to consider, entirely failed to consider an important 
aspect of the problem, offered an explanation for its decision that 
runs counter to the evidence before the agency, or is so implausible 
that it could not be ascribed to a difference in view or the product of 
agency expertise.'').
    \40\132 S. Ct. 476, 479 (2011). Justice Kagan explained that 
determining whether an action is arbitrary or capricious under the APA 
requires the same analysis as under Chevron step two, suggesting that 
both inquiries concern whether an agency interpretation is ``arbitrary 
or capricious in substance. Id. at 484 n.7.
    \41\Thomas O. McGarity, Some Thoughts on Deossifying the Rulemaking 
Process, 41 Duke L.J. 1385, 1410 (1992) (``[Courts] determine whether 
the agency applied the correct analytical methodology, applied the 
right criteria, considered the relevant factors, choose from among the 
available range of regulatory options, relied upon appropriate 
policies, and pointed to adequate support in the record for material 
empirical conclusions.'').
    \42\Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 
U.S. 837, 865-66 (1984); Sidney Shapiro & Elizabeth Fisher, Chevron and 
the Legitimacy of ``Expert'' Public Administration, 22 Wm. & Mary Bill 
Rts. J. 465, 468 (2013).
---------------------------------------------------------------------------
    Between 2000 and 2002, the Supreme Court issued a series of 
decisions further outlining whether courts must defer to 
agency's expertise in rulemaking for nonlegislative rules.\43\ 
Sometimes referred to as Chevron step zero, this inquiry 
examines whether the principles of Chevron even apply to an 
agency action.\44\ Under these decisions, the Court has 
generally held that nonlegislative rules, which do not carry 
the force of law,\45\ do not qualify for Chevron deference.\46\ 
For these rules--which include opinion letters, policy 
statements, and enforcement guidelines--deference principles 
first announced in Skidmore v. Swift & Co.\47\ apply.\48\ Under 
Skidmore, a reviewing court gives some weight to the agency 
interpretation of the statute that it administers depending on 
the timing and consistency of the action under review.\49\
---------------------------------------------------------------------------
    \43\See Christensen v. Harris County, 529 U.S. 576 (2000); United 
States v. Mead, 533 U.S. 218 (2001); Barnhart v. Walton, 535 U.S. 212 
(2002).
    \44\See, e.g., Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 
187 (2006); Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 
89 Geo. L.J. 833 (2001).
    \45\Id.
    \46\United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (``We 
hold that administrative implementation of a particular statutory 
provision qualifies for Chevron deference when it appears that Congress 
delegated authority to the agency generally to make rules carrying the 
force of law, and that the agency interpretation claiming deference was 
promulgated in the exercise of that authority.''); Christensen v. 
Harris County, 529 U.S. 576, 587 (2000) (``Interpretations such as 
those in opinion letters--like interpretations contained in policy 
statements, agency manuals, and enforcement guidelines, all of which 
lack the force of law--do not warrant Chevron-style deference.'').
    \47\Skidmore v. Swift & Co., 323 U.S. 134 (1944).
    \48\Separation of Powers Restoration Act of 2016: Hearing on H.R. 
4768 Before the Subcomm. on Regulatory Reform, Commercial and Antitrust 
Law of the H. Comm. on the Judiciary, 114th Cong. (2016) [hereinafter 
``H.R. 4768 Hearing''] (statement of Professor Ronald M. Levin, 
Washington University School of Law), https://judiciary.house.gov/wp-
content/uploads/2016/05/Levin-Testimony.pdf.
    \49\Peter L. Strauss, Deference is Too Confusing--Let's Call Them 
``Chevron Space'' and ``Skidmore Weight,'' 112 COLUM. L. REV. 1143, 
1145 (2012).
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 4768

 I. H.R. 4768 WILL LEAD TO REGULATORY PARALYSIS AND THEREBY DELAY THE 
            IMPLEMENTATION OF CRITICAL REGULATORY SAFEGUARDS

    Leading administrative law experts generally agree that 
abolishing judicial deference to agencies' interpretations of 
their statutory authority would make the rulemaking process 
more costly and time-consuming.\50\ Heightened review would 
force agencies to adopt more detailed factual records and 
explanations, effectively imposing more procedural requirements 
on agency rulemaking, which is already burdened by procedural 
delays.\51\ Professor Richard Pierce of The George Washington 
University Law School explains:
---------------------------------------------------------------------------
    \50\ABA Sec. of Admin. L. & Reg. Prac., Comments on H.R. 3010, the 
Regulatory Accountability Act of 2011, 64 Admin. L. Rev. 619, 667 
(2012) (``Debate on these principles continues, but the prevailing 
system works reasonably well, and no need for legislative intervention 
to revise these principles is apparent.''); see Letter from Anna 
Shavers, Chair, ABA Section of Administrative Law and Regulatory 
Practice, to Sen. Tom Carper (D-DE) and Sen. Tom Coburn (R-OK) on S. 
1029, the Regulatory Accountability Act of 2013, at 17, http://
www.americanbar.org/content/dam/aba/administrative/administrative_law/
s_1029_comments_dec_2014.authcheckdam.pdf (discussing reform of 
judicial deference to interpretations of rules); see Letter from 84 
administrative law academics to H. Judiciary Comm. Chair Bob Goodlatte 
(R-VA) and H. Judiciary Comm. Ranking Member John Conyers, Jr. (D-MI), 
2 (Jan. 12, 2015) (on file with the H. Comm. on the Judiciary, 
Democratic staff).
    \51\ABA Sec. of Admin. L. & Reg. Prac., Comments on H.R. 3010, the 
Regulatory Accountability Act of 2011, 64 Admin. L. Rev. 619, 667 
(2012) (``Debate on these principles continues, but the prevailing 
system works reasonably well, and no need for legislative intervention 
to revise these principles is apparent.''); see Letter from Anna 
Shavers, Chair, ABA Section of Administrative Law and Regulatory 
Practice, to Sen. Tom Carper (D-DE) and Sen. Tom Coburn (R-OK) on S. 
1029, the Regulatory Accountability Act of 2013, at 17, http://
www.americanbar.org/content/dam/aba/administrative/administrative_law/
s_1029_comments_dec_2014.authcheckdam.pdf (discussing reform of 
judicial deference to interpretations of rules); see Letter from 84 
administrative law academics to H. Judiciary Comm. Chair Bob Goodlatte 
(R-VA) and H. Judiciary Comm. Ranking Member John Conyers, Jr. (D-MI), 
2 (Jan. 12, 2015) (on file with the H. Comm. on the Judiciary, 
Democratic staff).

        Through interpretation and application of sections 553 
        and 706 of the APA, courts have transformed the simple, 
        efficient notice and comment process into an 
        extraordinarily lengthy, complicated, and expensive 
        process that produces results acceptable to a reviewing 
        court in less than half of all cases in which agencies 
        use the process. In particular, the courts have 
        completely rewritten the statutory requirement that an 
        agency must incorporate in each rule a ``concise 
        general statement of its basis and purpose.'' To have 
        any realistic chance of upholding a major rule on 
        judicial review, an agency's statement of basis and 
        purpose now must discuss in detail each of scores of 
        policy disputes, data disputes, and alternatives to the 
        rule adopted by the agency. Any data gap or any gap in 
        the stated reasoning with respect to any issue can 
        provide the predicate for judicial rejection of the 
        rule on the basis that the agency violated its duty to 
        engage in reasoned decisionmaking. Even after an agency 
        has devoted many years and vast resources to a single 
        rulemaking, it confronts a 50 percent risk that a 
        reviewing court will hold the resulting rule 
        invalid.\52\
---------------------------------------------------------------------------
    \52\Richard J. Pierce, Jr., Seven Ways to Deossify Agency 
Rulemaking, 47 Admin. L. Rev. 59, 65 (1995).

    The Administrative Conference of the United States (ACUS) 
has likewise observed that the consequence of heightened review 
would be a loss of certainty, efficiency, and fairness in the 
rulemaking process.\53\ In the context of its opposition to an 
earlier proposal to enact a de novo standard of review for 
agency action,\54\ ACUS noted that the ``most obvious'' concern 
of heightened review would be diminished rulemaking.\55\ The 
consequence of this decline in rulemaking would be severe for 
both the public and regulated entities in several regards.\56\ 
First, it would undermine transparency and certainty for 
regulated entities.\57\ Without the benefit of agency action, 
regulated entities are unaware of agency views. Furthermore, 
where agencies do issue rules, ``profound uncertainty would of 
necessity prevail while court review proceedings ran their 
course.''\58\ Second, heightened review would greatly increase 
regulatory complexity. The ACUS report explains:
---------------------------------------------------------------------------
    \53\Ronald M. Levin, Judicial Review and the Bumpers Amendment at 
591 (1979) (Final Report to the Administrative Conference of the U.S.) 
[hereinafter ``ACUS Report''], https://www.
acus.gov/sites/default/files/documents/
Levin%20ACUS%20Bumpers%20report.pdf.
    \54\H.R. 4768's de novo standard of review of agencies' statutory 
interpretations is not a new proposal. Congress first considered 
various proposals that would have created an enhanced judicial review 
standard in the late 1970's and early 1980's. In 1975, Senator Dale 
Bumpers (D-AR) first introduced legislation that would establish a de 
novo standard of review of agency action. In 1979, the Senate adopted 
this proposal as an amendment to an unrelated bill, passing by a 51 to 
27 vote. Thereafter, Congress considered various other proposals that 
similarly required reviewing courts to ``independently decide all 
relevant questions of law.'' Similar to H.R. 4768's de novo standard of 
review, the heightened standard of review in these proposals would have 
required courts to independently decide all relevant questions of law, 
review agency determinations of jurisdiction and authority to determine 
whether they were based on statutory language or other evidence of 
legislative intent, not accord any presumption in favor of agency 
determinations of questions of law other than its jurisdiction and 
authority, and apply what was effectively a ``substantial evidence'' 
test for informal rulemaking and the arbitrary or capricious standard. 
Following waves of criticism, however, Congress ultimately rejected 
these proposals. See generally Ronald M. Levin, Review of 
``Jurisdictional' Issues Under the Bumpers Amendment, 1983 Duke L.J. 
355, 367-68 (1983).
    \55\ACUS Report, supra note 53, at 590.
    \56\Id.
    \57\Id. at 591-92.
    \58\Id. at 592.

        Regulations are normally issued because the agencies 
        perceive a Congressional mandate to issue them; or 
        because agency members feel a conscientious commitment 
        to act as they do; or because of the demands of some 
        outside group that expects to benefit from the new 
        rules. These latter considerations ordinarily impinge 
        on agencies as forcibly, or more forcibly, than any 
        calculus about the chances of prevailing in the courts. 
        In this environment of conflicting pressures, the 
        agencies may respond to the Amendment not so much by 
        promulgating narrower regulations as by conducting more 
        complex rulemaking proceedings, holding more oral 
        hearings, and generating lengthier records, in order to 
        assure that the rule's validity (can be) established by 
        a preponderance of the evidence shown. These defensive 
        measures can be expected to entail a good deal of 
        overkill, for an agency's assessment of the danger of 
        reversal is always speculative, and the agency has a 
        strong temptation to engage in what would, in 
        retrospect, be seen as excessive precautions. Such an 
        increase in the complexity of rulemaking activities 
        would appear to be sharply contrary to the underlying 
        purposes of the Amendment.\59\
---------------------------------------------------------------------------
    \59\Id. at 595.

    The non-partisan Congressional Research Service (CRS) has 
similarly criticized heightened review of agencies' statutory 
interpretations, stating that it ``will cause delay, 
complexity, and uncertainty in the administrative process.\60\ 
In a report on legislation that is substantively comparable to 
H.R. 4768, CRS noted that heightened review would force 
agencies to dedicate significantly more resources in support of 
the administrative record in anticipation of review.\61\ In 
addition, CRS observed that ``it is almost universally agreed'' 
that the consequence of heightened review will be additional 
industry challenges to rules.\62\ Lastly, CRS expressed 
concerns that heightened review may skew the agency fact-
finding process in favor of those with the resources to shape 
the agency record by making it more lengthy and costly.\63\ 
Enhanced judicial review could affect public participation in 
the rulemaking process in other ways, including how agency 
officials conduct proceedings in anticipation of review, as 
well as the increased judicial activism that the reform would 
spur, where individuals have little role in private 
litigation.\64\ Furthermore, parties that oppose a rule could 
create additional costs and delay in the rulemaking process by 
increasing the number of appeals of agency determinations.\65\
---------------------------------------------------------------------------
    \60\Morton Rosenberg, Cong. Research Serv., The Future of Public 
Participation in Informal Agency Rulemaking Under Pending Regulatory 
Reform Proposals, Congressional Research Service Report for Congress 44 
(1982).
    \61\Id. at 46.
    \62\Id. at 47.
    \63\Rosenberg, supra note 60, at 46-47.
    \64\Id.
    \65\Id.
---------------------------------------------------------------------------
    The practical effect of this regulatory paralysis will be 
even more delays for new rules that benefit the public's 
health, safety, and security.\66\ John Walke, a senior counsel 
at the Natural Resources Defense Council (NRDC), testified at 
the legislative hearing on H.R. 4768 that the bill will result 
in significant regulatory delay and uncertainty:
---------------------------------------------------------------------------
    \66\Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary 
from the Coalition for Sensible Safeguards (June 8, 2016) (on file with 
Democratic staff of the H. Comm. on the Judiciary).

        First, agencies will issue fewer regulations to carry 
        out Federal laws and protect Americans. Many more 
        congressional deadlines will be missed. I expect that 
        is precisely what some members and corporate lobbyists 
        opposed to regulation hope will happen. It is why they 
        support this legislation. Second, agencies will resort 
        to simply repeating ambiguous and unclear statutory 
        language verbatim in regulations. They will do so in an 
        attempt to insulate themselves from adverse judgments 
        by judges conducting de novo reviews of agency 
        resolutions of statutory ambiguities, conflicts and 
        gaps that are differently reasonable than the judge's 
        notion of what is reasonable.\67\
---------------------------------------------------------------------------
    \67\H.R. 4768 Hearing, supra note 48, at 7 (statement of John D. 
Walke, Esq., Director, Clean Air Project, Climate & Clean Air Program, 
Natural Resource Defense Council), https://
judiciary.house.gov/wp-content/uploads/2016/05/Walke-Testimony.pdf.

    Agencies are tasked by Congress with protecting the public 
interest across a spectrum of areas. Few areas are more 
important to the health and welfare of society than clean 
drinking water and safe food. To illustrate this concern, 
Ranking Member John Conyers, Jr. (D-MI) offered an amendment 
that would have exempted from the bill rulemakings by the 
Environmental Protection Agency (EPA) pertaining to the 
regulation of lead and copper in drinking water.\68\ He 
explained that the amendment was necessary because ``it is 
critical that Americans have access to safe drinking water and 
that we do not hinder the ability of Federal agencies, such as 
the Environmental Protection Agency, to prevent future lead 
contamination events like the Flint water crisis.''\69\ Ranking 
Member Conyers stated that ``federal judges, who are 
constitutionally insulated from political accountability, 
should not have the power to second-guess the agency experts 
concerning the appropriateness of highly technical regulations 
crucial to protecting the health and safety of millions of 
Americans.''\70\ Unfortunately, this amendment failed by a 
party-line vote of 4 to 10.\71\
---------------------------------------------------------------------------
    \68\Tr. of Markup of H.R. 4768, the ``Separation of Powers 
Restoration Act of 2016,'' by the H. Comm. on the Judiciary, 114th 
Cong. 63 (June 8, 2016).
    \69\Id.
    \70\Id. at 64.
    \71\Id. at 73.
---------------------------------------------------------------------------
    To further underscore these concerns Representative David 
Cicilline (D-RI) offered an amendment to exempt from the bill 
rulemakings by the Food and Drug Administration (FDA) relating 
to consumer food safety.\72\ Speaking in support of his 
amendment, he stated that H.R. 4768 would ``bring the agency 
rulemaking process to a halt, incentivizing judges to rewrite 
current regulations and introducing uncertainty into the effort 
to make new ones.''\73\ The consequence of this delay and 
uncertainty, Representative Cicilline explained, would be to 
hinder the FDA's ability to protect Americans from foodborne 
illness, which affects roughly 48 million people in the United 
States.\74\ This amendment also failed along party lines by a 
vote of 6 to 10.\75\
---------------------------------------------------------------------------
    \72\Id. at 32.
    \73\Id. at 34.
    \74\Id.
    \75\Id. at 46.
---------------------------------------------------------------------------
    In a similar regard, Representative Sheila Jackson Lee (D-
TX) offered an amendment that would have exempted from the bill 
rules issued by the Department of Homeland Security (DHS) 
pertaining to national security.\76\ She stated in support of 
her amendment that DHS is ``the first line of defense in 
protecting the Nation and leading recovery efforts from all 
hazards and threats, which include everything from weapons of 
mass destruction to natural disasters.''\77\ This amendment 
failed by a party-line vote of 5 to 8.\78\
---------------------------------------------------------------------------
    \76\Id. at 47.
    \77\Id. at 49-50.
    \78\Id. at 62.
---------------------------------------------------------------------------

           II. H.R. 4768 RAISES SEPARATION OF POWERS CONCERNS

    H.R. 4768 raises separation of powers concerns because it 
would increase the policymaking power of the Judicial Branch 
with respect to a broad range of highly technical yet 
politically sensitive regulatory matters. As the Supreme Court 
in Chevron observed, such policy making power should rest 
primarily in the hands of the Legislative and Executive 
Branches. H.R. 4768, if enacted into law, would undermine the 
political accountability enshrined in the Constitution by 
forcing Federal courts to abandon a legal standard of statutory 
interpretation that strikes a careful balance between the 
coordinate branches of government. Eliminating judicial 
deference may also incentivize judicial activism by allowing a 
reviewing court to substitute its policy preferences for those 
of the agency. As Professor Pierce notes, courts lacked 
explicit authority to review most agency rulemaking until the 
late Nineteenth century.\79\
---------------------------------------------------------------------------
    \79\The Chevron Doctrine: Constitutional and Statutory Questions in 
Judicial Deference to Agencies: Hearing Before the Subcomm. on 
Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the 
Judiciary, 114th Cong. 4 (2016) (statement of Professor Richard Pierce, 
George Washington Law School) (``Until late in the Nineteenth century, 
courts could not and did not review the vast majority of agency 
actions. The Supreme Court held that courts lacked the power to review 
exercises of executive branch discretion. A court could review an 
action taken by the executive branch (or a refusal to act) only in the 
rare case in which a statute compelled an agency to act in a particular 
manner. In that situation, the court was simply requiring the agency to 
take a non-discretionary ministerial action.'') [hereinafter Chevron 
Hearing], https://judiciary.house.gov/wp-content/uploads/2016/03/
Pierce-Testimony-REVISED.pdf.
---------------------------------------------------------------------------
    The Supreme Court's decision in Chevron demonstrates its 
concern with maintaining the balance of separation of powers, 
and that the Court feared giving judges too much control over 
policymaking if presented with a claim involving a question of 
whether an agency had improperly interpreted Congress' 
delegation of statutory rulemaking authority. The Court 
emphatically makes this point:

        Judges are not experts in the field, and are not part 
        of either political branch of the Government. Courts 
        must, in some cases, reconcile competing political 
        interests, but not on the basis of the judges' personal 
        policy preferences. In contrast, an agency to which 
        Congress has delegated policy-making responsibilities 
        may, within the limits of that delegation, properly 
        rely upon the incumbent Administration's views of wise 
        policy to inform its judgments. While agencies are not 
        directly accountable to the people, the Chief Executive 
        is, and it is entirely appropriate for this political 
        branch of the Government to make such policy choices--
        resolving the competing interests which Congress itself 
        either inadvertently did not resolve, or intentionally 
        left to be resolved by the agency charged with the 
        administration of the statute in light of everyday 
        realities.\80\
---------------------------------------------------------------------------
    \80\Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 
837, 865 (1984).

    In arriving at the deference doctrine articulated in 
Chevron, the Supreme Court acknowledged that Federal courts 
lacked the expertise to second-guess the agency rulemaking 
process behind the development of a complex and often highly 
technical rule or regulation. Rather, the court should overrule 
an agency's interpretation only if it is so unreasonable in 
that it exceeds Congress' delegation of rulemaking authority. 
The basis for the Court's reasoning, as Professor Hammond 
testified before the Subcommittee on Regulatory Reform, is that 
``[a]gencies have experience with the statutes they administer 
and the challenges that arise under the applicable regulatory 
regimes. Relative to the courts, agencies also have superior 
expertise, particularly with respect to complex scientific or 
technical matters.''\81\ Importantly, the Court's reasoning 
does not rest simply on the understanding that judges are 
generalists lacking the special scientific and technical 
knowledge or familiarity with the statutory authorities needed 
to evaluate certain agency rulemakings. It also reflects the 
Court's view with respect to the proper role of the Judicial 
Branch in relation to the political branches.
---------------------------------------------------------------------------
    \81\Chevron Hearing, supra note 79, at 2 (written statement of 
Professor Emily Hammond, George Washington University Law School), 
https://judiciary.house.gov/wp-content/uploads/2016/03/Hammond-
Testimony-REVISED.pdf.
---------------------------------------------------------------------------
    Although statutory interpretation resides within the 
Judicial Branch's constitutional wheelhouse, the Chevron Court 
also recognized that judges ``are not part of either political 
branch of government.''\82\ And the Court expressed the concern 
that judges should not be put in the position of ``reconciling 
competing political interests'' based on ``personal policy 
preferences.''\83\ This is because the unelected judges of the 
Judicial Branch are insulated from the political process and 
would be unaccountable for any policy decisions they might make 
in any number of politically sensitive areas of the law. 
Deferring to an agency's interpretation of a statute--if 
reasonable--when the claim is essentially over competing policy 
preferences is preferable in the Court's eyes because the 
Executive Branch is politically accountable. As the Court 
stated:
---------------------------------------------------------------------------
    \82\Chevron v. Nat. Res. Def. Council, 467 U.S. 837 at 865.
    \83\Id.

        When a challenge to an agency construction of a 
        statutory provision, fairly conceptualized, really 
        centers on the wisdom of the agency's policy, rather 
        than whether it is a reasonable choice within a gap 
        left open by Congress, the challenge must fail. In such 
        a case, Federal judges--who have no constituency--have 
        a duty to respect legitimate policy choices made by 
        those who do. The responsibilities for assessing the 
        wisdom of such policy choices and resolving the 
        struggle between competing views of the public interest 
        are not judicial ones . . .\84\
---------------------------------------------------------------------------
    \84\Id. at 866.

The Court's decision in Chevron ``is an exercise in judicial 
self-restraint: by deferring to agencies' reasonable 
constructions rather than substituting their own judgment, the 
unelected courts avoid inserting their own policy preferences 
into administrative law.''\85\ It adopted a legal standard that 
limited the judiciary to its traditional and constitutional 
role of interpreting the law while giving deference to policy 
decisions made by the political branches.
---------------------------------------------------------------------------
    \85\Chevron Hearing, supra note 79, at 2 (written statement of 
Professor Emily Hammond, George Washington University Law School), 
https://judiciary.house.gov/wp-content/uploads/2016/03/Hammond-
Testimony-REVISED.pdf.
---------------------------------------------------------------------------
    H.R. 4768 would undermine the separation of powers by 
eliminating judicial deference to agency rulemaking. This would 
incentivize judicial activism by allowing a reviewing court to 
substitute its policy preferences for those of the agency.\86\ 
And rather than deferring to agencies' substantive expertise, 
enhanced judicial review would enable generalist courts to 
apply their policy preferences to the review of an agency rule, 
whether they do so consciously or not. More importantly, judges 
lack the political accountability of Executive Branch 
agencies.\87\
---------------------------------------------------------------------------
    \86\Rosenberg, supra note 60, at 48-51.
    \87\Id; Henry P. Monaghan, Marbury and the Administrative State, 83 
Colum. L. Rev. 1, 14 (1983) (``But whatever the logic of the Marbury 
argument or the wisdom of strong judicial control of administrative 
law-making, the Marshall court itself gave early sanction to deference 
principles.''); Ronald M. Levin, Identifying Questions of Law in 
Administrative Law, 74 Geo. L.J. 1, 18 (1985) (``Marbury does not make 
clear whether the exercise of independent judicial judgment to keep 
agencies within statutory bounds is constitutionally indispensable.'').
---------------------------------------------------------------------------
    The Administrative Conference of the United States 
(ACUS),\88\ an independent Federal agency dedicated to 
improving the administrative process, has previously raised 
this concern in opposition to substantively similar 
legislation.\89\ In a report in support of its recommendation 
on judicial review, ACUS noted that a heightened standard of 
review may potentially apply far beyond questions of law to 
include questions of fact, policy, and procedure.\90\ This form 
of sweeping authority vested in one branch of government would 
represent, in ACUS's view, ``a fundamental overthrow of the 
existing allocation of power between judicial and executive 
branches,''\91\ representing ``so complete a departure from 
prevailing separation-of powers principles that the student of 
administrative law would virtually be left without any point of 
reference from which to critique it.''\92\ ACUS explains:
---------------------------------------------------------------------------
    \88\ACUS Report, supra note 53, at 576.
    \89\H.R. 4768 Hearing, supra note 48, at 8 (statement of Professor 
Ronald M. Levin, Washington University School of Law), https://
judiciary.house.gov/wp-content/uploads/2016/05/Levin-Testimony.pdf.
    \90\ACUS Report, supra note 53, at 568, 572.
    \91\Id. at 575.
    \92\Id. at 589.

        In this situation, Congress has literally delegated a 
        portion of its standard-setting power, and through that 
        delegation Congress entrusts to the (agency), rather 
        than to the courts, the primary responsibility for 
        interpreting the statutory term. Such a situation 
        exists when, for example, an administrative agency 
        implements a statute by issuing rules that it believes 
        will serve the public convenience, interest or 
        necessity, or by setting rates that it deems just and 
        reasonable, or by promulgating regulations to carry out 
        the purposes of this statute. In any of these 
        situations, the purposes of the underlying legislation 
        would be undermined in a quite fundamental way if the 
        regulations could be upheld only where the agency 
        persuaded a reviewing court by a preponderance of the 
        evidence that the regulation was ``right.'' The legal 
        results of this approach can also be appraised in more 
        pragmatic terms. Plenary judicial review of all 
        regulations would clearly impair the effectiveness of 
        the many substantive statutes that become the subjects 
        of administrative rulemaking. It would lead to inferior 
        regulation because courts simply do not have agencies' 
        constant involvement with administration of the various 
        programs, let alone agencies' technical sophistication. 
        The APA standards of review aim at a balanced scheme 
        whereby the detached perspective of judicial 
        generalists complements the experience and knowledge of 
        agency specialists. A system of review that vests 
        judges with primary responsibility for both functions 
        cannot be as successful. Whether or not Congress could 
        effectively forbid court to rely on agency expertise in 
        factual and policy areas, an effort to do so would be 
        quite ill advised.\93\
---------------------------------------------------------------------------
    \93\Id. at 590.

    Policymaking is more properly suited for the political 
branches, which are ultimately accountable to the people who 
are affected by such policies. As the Court in Chevron 
recognized, judges have no political constituency by 
constitutional design and there is no mechanism by which the 
public or the political branches could demonstrate disapproval 
of judicially determined policy. This is counter to the 
constitutional principles that animate the political branches, 
which are accountable to the public for policymaking decisions.
    Furthermore, tasking the Judicial Branch with policymaking 
functions could undermine its unique constitutional role as the 
interpreter of the law's meaning. The legitimacy of the 
Judicial Branch rests upon the perception that it remain above 
the fray of politics. If enacted, H.R. 4768 would place judges 
in a position to routinely determine substantive policy on 
potentially politically sensitive issues and in a manner that 
goes beyond reconciling competing political interests present 
in some cases. Court decisions could come to be viewed as 
partisan exercises rather neutral determinations of law and 
courts as political actors no different from a Presidential 
administration or Congress.
    Proponents of H.R. 4768 argue that this legislation is 
needed to restore the separation of powers between Congress and 
the Executive Branch. In their view, the Executive Branch has 
infringed upon Congress' legislative powers through an 
expansion of the rulemaking process and that Federal courts 
should ``rein in'' Executive Branch agencies by substituting 
their own judgement on policy matters. These arguments 
essentially reflect an anti-regulatory approach to policy and 
governance based on the belief that Federal courts may be more 
amenable to carrying out such an agenda. There is, however, 
absolutely no guarantee that any future Executive Branch 
administration or Federal judge will share such an agenda. As 
Professor Levin testified:

        Even people who agree with the anti-government premises 
        of the sponsors [of H.R. 4768] should recognize that a 
        change in the APA standard of review is an inapt tool 
        for advancing that agenda. It is shortsighted, because 
        it ignores the fact that, over time, political 
        administrations change. Sometimes the Administration in 
        office will generally be in favor of deregulation, and 
        in these circumstances a more intrusive standard of 
        judicial review would tend to undercut that 
        Administration's policies just as surely as it may tend 
        to undercut a more progressive Administration's 
        policies when the latter holds power.\94\
---------------------------------------------------------------------------
    \94\Separation of Powers Restoration Act of 2016: Hearing on H.R. 
4768 Before the Subcomm. on Regulatory Reform, Commercial and Antitrust 
Law of the H. Comm. on the Judiciary, 114th Cong. 9 (2016) (written 
statement of Professor Ronald Levin).

    This concern was also shared by the Majority's witness at 
the legislative hearing on the bill\95\ who said that because 
the bill broadly applies to all agency actions, H.R. 4768 may 
``frustrate Congress' intent'' in cases where Congress clearly 
expected agencies to apply expertise through gap-filling 
authority:
---------------------------------------------------------------------------
    \95\Id. at 16 (Professor Jack Beermann, Boston University School of 
Law), https://judiciary.house.gov/wp-content/uploads/2016/03/Beermann-
Testimony.pdf.

        There may be other contexts, however, in which the 
        language, structure and purposes of a statute indicate 
        that Congress expects reviewing courts to defer to 
        persuasive agency reasoning concerning the proper 
        construction of a statute or statutory gaps that 
        Congress would have wanted an agency to fill in line 
        with consistent administrative policy. . . . In fact, 
        to some, the term ``deference'' may be something of a 
        misnomer in this context. When Congress has delegated 
        to an agency the power to administer a statute, and the 
        agency has thoroughly considered a problem, and 
        provided persuasive, valid reasoning for its consistent 
        view of the meaning of a statutory term, a reviewing 
        court is likely to be convinced that the agency has 
        made a correct decision, or at least a decision that is 
        just as likely to be correct as any contrary view 
        advanced by the challengers on judicial review. In such 
        a case, the agency's decision ought to be approved 
        regardless of whether the Skidmore factors are 
        considered to be indicators of persuasion or of 
        deference.\96\
---------------------------------------------------------------------------
    \96\Id. at 8-9.

He also observed that it was ``widely accepted that reviewing 
courts should defer to agency statutory construction when 
Congress explicitly delegated interpretive authority to the 
administering agency'' even prior to the Supreme Court's 
decision in Chevron,\97\ where it held that courts should rule 
to an agency's reasonable interpretation of its statutory 
authority.\98\
---------------------------------------------------------------------------
    \97\Id. at 4.
    \98\Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 
837, 843 n.9 (1984) (``If a court, employing traditional tools of 
statutory construction, ascertains that Congress had an intention on 
the precise question at issue, that intention is the law and must be 
given effect.'').
---------------------------------------------------------------------------
    In response to these concerns, Representative Henry C. 
``Hank'' Johnson, Jr. (D-GA) offered an amendment to exempt 
from the bill rules issued by agencies pursuant to express 
statutory authority.\99\ Speaking in support of his amendment, 
Representative Johnson explained that the bill would undermine 
clear congressional intent in those instances where Congress 
expressly delegates authority to agencies and restricts 
judicial review.\100\ The amendment failed, however, along 
party lines by a vote of 5 to 10.\101\
---------------------------------------------------------------------------
    \99\Tr. of Markup of H.R. 4768, the ``Separation of Powers 
Restoration Act of 2016,'' by the H. Comm. on the Judiciary, 114th 
Cong. 22 (June 8, 2016).
    \100\Id. at 23.
    \101\Id. at 33.
---------------------------------------------------------------------------
    In sum, H.R. 4768 will disrupt the careful balance 
reflected in the Supreme Court's Chevron decision. Bolstering 
the power of unelected judges to make substantive policymaking 
decisions will not correct any perceived imbalance between the 
Executive and Legislative Branches. Rather, this bill will 
destroy that balance by giving a non-political branch of the 
government an explicit license to make substantive policy on a 
host of highly technical and scientific rulemakings which 
effect the public health and safety of millions of Americans.

          III. H.R. 4768 IS A SOLUTION IN SEARCH OF A PROBLEM

    H.R. 4768 is a solution to a non-existent problem. 
Empirically, agency rulemakings on appeal are upheld roughly 
70% of the time, regardless of whether the court applies 
Chevron or a hard-look review, which suggests that many other 
factors ultimately affect the outcome of a court's review.\102\ 
Notwithstanding the debate surrounding deference 
principles,\103\ the American Bar Association (ABA) 
Administrative Law Section has clarified:
---------------------------------------------------------------------------
    \102\Examining the Proper Role of Judicial Review in the Federal 
Regulatory Process: Hearing Before the Subcomm. on Regulatory Affairs 
and Fed. Management of the S. Comm. on Homeland Security and Government 
Affairs, 114th Cong. 41 (2015) (statement of Prof. Ron Levin), https://
www.gpo.gov/fdsys/pkg/CHRG-114shrg94906/pdf/CHRG-114shrg94906.pdf; see 
also Richard J. Pierce, Jr., & Joshua Weiss, An Empirical Study of 
Judicial Review of Agency Interpretations of Agency Rules, 63 Admin. L. 
Rev. 515, 515 (2011).
    \103\Require Evaluation before Implementing Executive Wishlists Act 
of 2015 and the Regulatory Predictability for Business Growth Act of 
2015: Hearing on H.R. 3438 and H.R. 2631 Before the Subcomm. on 
Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the 
Judiciary, 114th Cong. (2015) (statement of William Funk, Lewis & Clark 
Distinguished Professor of Law, Lewis & Clark Law School).

        Judicial review of agency decisionmaking today is 
        relatively stable, combining principles of restraint 
        with the careful scrutiny that goes by the nickname 
        ``hard look review.'' Since the time of such landmark 
        decisions as Chevron and State Farm (and, of course, 
        for decades prior to their issuance), courts have 
        striven to work out principles that are intended to 
        calibrate the extent to which they will accept, or at 
        least give weight to, decisions by Federal 
        administrative agencies. Debate on these principles 
        continues, but the prevailing system works reasonably 
        well, and no need for legislative intervention to 
        revise these principles is apparent.\104\
---------------------------------------------------------------------------
    \104\ABA Sec. of Admin. L. & Reg. Prac., Comments on H.R. 3010, the 
Regulatory Accountability Act of 2011, 64 Admin. L. Rev. 619, 667 
(2012).

    Deference to an agency's judgment is also sound policy, as 
recognized by Chevron, where the Court gave considerable weight 
to the expertise and political accountability of agencies.\105\ 
As the Chevron Court observed, the Constitution does not endow 
Federal judges with policymaking authority:
---------------------------------------------------------------------------
    \105\Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 
U.S. 837, 865 (1984).

        When a challenge to an agency construction of a 
        statutory provision, fairly conceptualized, really 
        centers on the wisdom of the agency's policy, rather 
        than whether it is a reasonable choice within a gap 
        left open by Congress, the challenge must fail. In such 
        a case, Federal judges--who have no constituency--have 
        a duty to respect legitimate policy choices made by 
        those who do. The responsibilities for assessing the 
        wisdom of such policy choices and resolving the 
        struggle between competing views of the public interest 
        are not judicial ones: ``Our Constitution vests such 
        responsibilities in the political branches.''\106\
---------------------------------------------------------------------------
    \106\Id. at 866.

These factors are reflected in all relevant case law and in the 
scholarship of scores of experts in administrative law.\107\ 
Similarly, the body of precedent surrounding judicial deference 
already allows for checks on executive abuses; ending this 
tradition would raise countervailing separation of powers 
concerns, as Professor Levin explains:
---------------------------------------------------------------------------
    \107\Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary 
from Joel B. Eisen, Professor Law, University of Richmond School of 
Law, and Emily Hammond, Professor of Law, George Washington University 
Law School, et al. 2 (June 8, 2016) (on file with Democratic staff of 
the H. Comm. on the Judiciary).

        The Court has developed a sophisticated, though always 
        evolving, body of precedents in order to calibrate the 
        complex relationship between courts and agencies. These 
        precedents do provide for a check on executive abuses, 
        but they also reflect a wise recognition that judges do 
        not have a monopoly on wisdom, especially in regard to 
        the specialized problems that arise in the 
        interpretation of regulations . . . elimination of all 
        judicial deference . . . may raise countervailing 
        separation of powers concerns of its own. It brings to 
        mind the reasoning of the Chevron opinion, in which 
        Justice Stevens cautioned the courts against being too 
        quick to substitute their judgments for those of 
        politically accountable administrators.\108\
---------------------------------------------------------------------------
    \108\Examining the Proper Role of Judicial Review in the Federal 
Regulatory Process: Hearing Before the Subcomm. on Regulatory Affairs 
and Fed. Management of the S. Comm. on Homeland Security and Government 
Affairs, 114th Cong. 48 (2015) (statement of Prof. Ron Levin), https://
www.gpo.gov/fdsys/pkg/CHRG-114shrg94906/pdf/CHRG-114shrg94906.pdf.

    Furthermore, Congress has historically yielded to the 
expertise of the executive branch. Professor Sidney Shapiro, a 
leading administrative law expert, explains that ``it is 
difficult for legislators to resolve the policy and political 
conflicts produced by most reform proposals,'' while delegation 
enabled agencies to ``fine-tune procedures in different 
institutional settings and to make incremental changes more 
easily than if legislation was necessary.''\109\ Professor 
Pierce has similarly cautioned against the legislative reform 
of the Chevron doctrine:
---------------------------------------------------------------------------
    \109\Sidney A. Shapiro, A Delegation Theory of the APA, 10 Admin. 
L.J. Am. U. 89, 109 (1996).

        I do not see any opportunity for Congress to make 
        beneficial changes in this area of law by statute at 
        present. The courts have ample discretion to make any 
        needed changes or clarifications in this area of law 
        without any changes in the statutes that now govern 
        this area of law. Courts are in the best position 
        institutionally to make the kinds of changes in legal 
        doctrines that would have a realistic chance of 
        improving the legal framework within which agencies 
        make rules and the quality and timeliness of the 
        resulting rules.\110\
---------------------------------------------------------------------------
    \110\The Chevron Doctrine: Constitutional and Statutory Questions 
in Judicial Deference to Agencies: Hearing Before the Subcomm. on 
Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the 
Judiciary, 114th Cong. 4 (2016) (statement of Professor Richard Pierce, 
George Washington University Law School), https://judiciary.house.gov/
wp-content/uploads/2016/03/Pierce-Testimony-REVISED.pdf.

    Finally, as a general matter, administrative law experts 
believe that there is no need to fundamentally amend the APA, 
including its treatment of judicial review.\111\ They argue 
that the APA's drafters were not unlike those of the 
Constitution in that they had great foresight in making the APA 
flexible and broad enough so that it is able to fit changing 
times.\112\ The APA has served, and should continue to serve, 
as ``a kind of Constitution for administrative agencies and the 
affected public--flexible enough to accommodate the variety of 
agencies operating under it and the changes in modern 
life.''\113\
---------------------------------------------------------------------------
    \111\See Sidney A. Shapiro, A Delegation Theory of the APA, 10 
Admin. L.J. Am. U. 89, 89 (1996).
    \112\See id.
    \113\Letter from 84 administrative law academics to H. Judiciary 
Comm. Chair Bob Goodlatte (R-VA) and H. Judiciary Comm. Ranking Member 
John Conyers, Jr. (D-MI) 2 (Jan. 12, 2015) (on file with the H. Comm. 
on the Judiciary, Democratic staff).
---------------------------------------------------------------------------
    In the absence of any evidence that legislative change is 
necessary, H.R. 4768 simply addresses a non-existent problem.

   IV. H.R. 4768 IS YET ANOTHER ANTI-REGULATORY BILL BASED ON FALSE 
                              ASSUMPTIONS

    Although proponents of H.R. 4768 argue that this 
legislation is necessary to prevent a ``circumvention of our 
Constitution'' by Federal agencies,\114\ H.R. 4768 is yet 
another thinly-veiled attack on regulations.\115\ As a group of 
leading administrative law scholars note, the bill is ``motived 
by dissatisfaction with substantive agency outcomes rather than 
with legitimate concerns about judicial practice.''\116\ John 
Walke, a senior counsel with the Natural Resource Defense 
Council (NRDC), similarly observes that H.R. 4768 is just the 
latest in a wave of ``legislation embodying conservative 
political and corporate attacks on our modern system of Federal 
regulation and law enforcement by the executive branch.''\117\ 
This opposition to regulatory safeguards is motivated by the 
unsubstantiated and debunked claims that regulations undermine 
economic growth, job creation, or entrepreneurship, while 
ignoring the substantial public benefits of regulations.
---------------------------------------------------------------------------
    \114\Tr. of Markup of H.R. 4768, the ``Separation of Powers 
Restoration Act of 2016,'' by the H. Comm. on the Judiciary, 114th 
Cong. 11 (June 8, 2016) (statement of U.S. Rep. John Ratcliff (R-TX).
    \115\Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary 
from Joel B. Eisen, Professor Law, University of Richmond School of 
Law, & Emily Hammond, Professor of Law, George Washington University 
Law School, et al. (June 8, 2016) (on file with Democratic staff of the 
H. Comm. on the Judiciary).
    \116\Id. at 2.
    \117\H.R. 4768 Hearing, supra note 48, at 3 (statement of John D. 
Walke, Esq., Director, Clean Air Project, Climate & Clean Air Program, 
Natural Resource Defense Council), https://
judiciary.house.gov/wp-content/uploads/2016/05/Walke-Testimony.pdf.
---------------------------------------------------------------------------
A. LNo Evidence Exists Proving that Regulations Have a Significant 
        Adverse Impact on Jobs, Wages, or Innovation
            1. LProponents of Regulatory Reform Rely on False 
                    Assumptions
    Anti-regulatory proponents routinely argue that regulations 
``kill'' jobs,\118\ citing flawed studies indicating that the 
cost of regulations exceed $1.8 trillion a year, or $15,000 per 
U.S. household.\119\ In short, these arguments lack merit. The 
non-partisan Congressional Research Service (CRS) has twice 
debunked anti-regulatory claims on the ``cost of regulation.'' 
In 2011, the CRS conducted an extensive examination of a study 
routinely cited by the Majority which was conducted by 
economists Mark and Nicole Crain asserting that Federal 
regulation imposes an annual cost of $1.75 trillion on 
business.\120\ CRS determined that the methodology of this 
report, which was widely-cited by advocates for regulatory 
reform proposals, was deeply flawed,\121\ noting that the 
authors of the study acknowledged that their analysis was ``not 
meant to be a decision-making tool for lawmakers or Federal 
regulatory agencies to use in choosing the `right' level of 
regulation. In no place in any of the reports do we imply that 
our reports should be used for this purpose. (How could we 
recommend this use when we make no attempt to estimate the 
benefits?).''\122\
---------------------------------------------------------------------------
    \118\See, e.g., The Regulatory Accountability Act of 2011: Hearing 
on H.R. 3010 Before the H. Comm. on the Judiciary, 112th Cong. (2011) 
(statement of U.S. Rep. Lamar Smith (R-TX), Chair, H. Comm. on the 
Judiciary) (``Standing in the way of growth and job creation is a wall 
of Federal regulation.'').
    \119\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory 
Costs on Small Firms, Rep. No. SBAHQ-08-M-0466 (Sept. 2010), http://
archive.sba.gov/advo/research/rs371tot.pdf; Clyde Wayne Crews, Jr. Ten 
Thousand Commandments An Annual Snapshot of the Federal Regulatory 
State, Competitive Enterprise Institute (2014), http://cei.org/sites/
default/files/Wayne%
20Crews%20-%20Ten%20Thousand%20Commandments%202014.pdf; Clyde Wayne 
Crews, Jr. Tip of the Costberg, Competitive Enterprise Institute 
(2015), http://cei.org/sites/default/files/Wayne%20Crews%20-
%20Ten%20Thousand%20Commandments%202014.pdf.
    \120\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory 
Costs on Small Firms, Rep. No. SBAHQ-08-M-0466 (Sept. 2010), available 
at http://archive.sba.gov/advo/research/rs371tot.
pdf.
    \121\Curtis W. Copeland, Cong. Research Serv., R41763, Analysis of 
an Estimate of the Total Costs of Federal Regulations, Congressional 
Research Service Report for Congress (2011).
    \122\Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to 
the author of the CRS report).
---------------------------------------------------------------------------
    Following extensive criticism of the Crain and Crain 
study,\123\ anti-regulatory activists have issued other studies 
on the cost of regulation.\124\ Nevertheless, CRS, in another 
exhaustive report in released in January 2016, debunked the 
methodology of these studies as well.\125\ Examining several 
different approaches for determining proxy measures for the 
``overall amount of regulation,'' CRS noted that each method 
``produces radically different results,'' concluding that the 
``[c]urrent estimates of the cost of regulation should be 
viewed with a great deal of caution.''\126\ CRS likewise 
observed that by any methodology, estimates of the cost of 
regulation have ``inherent--and potentially insurmountable--
flaws . . . rais[ing] the question of the utility of using such 
figures in the regulatory reform debate.''\127\ The Washington 
Post raised similar concerns in 2015, referring to the 
regulatory cost estimates most frequently cited by regulatory 
reform proponents as ``simply an idiosyncratic guesstimate'' 
with ``serious methodological problems.''\128\
---------------------------------------------------------------------------
    \123\See, e.g., Sidney Shapiro et al., Setting the Record Straight: 
The Crain and Crain Report on Regulatory Costs, Center for Progressive 
Reform (Feb. 2011), http://www.
progressivereform.org/articles/sba_regulatory_costs_analysis_1103.pdf; 
Lisa Heinzerling & Frank Ackerman, The $1.75 Trillion Lie, 1 Mich. J. 
Envtl. & Admin. L. 127 (2012).
    \124\See, e.g., Clyde Wayne Crews, Jr. Tip of the Costberg, 
Competitive Enterprise Institute (2015), http://cei.org/sites/default/
files/Wayne%20Crews%20-%20Ten%20Thousand%20
Commandments%202014.pdf (``Best wishes to all pouring disdain on the 
Small Business Administration's assessment of the regulatory 
enterprise, as [Cass] Sunstein and several policy groups did.'').
    \125\Maeve Carey, Cong. Research Serv., R44348, Methods of 
Estimating the Total Cost of Federal Regulations 1 (2016).
    \126\Id. at 2.
    \127\Id. at 3.
    \128\Glenn Kessler, The Claim That American Households Have a 
15,000 Regulatory `Burden', Wash. Post (Jan 14, 2015), http://
www.washingtonpost.com/blogs/fact-checker/wp/2015/01/14/the-claim-that-
americanhouseholds-have-a-15000-regulatory-burden/.
---------------------------------------------------------------------------
            2. LRegulations Do Not Have Any Major Adverse Impact on 
                    Employment
    While the Majority asserts that employment and economic 
growth are inhibited by regulations, the evidence is to the 
contrary.\129\ For example, Professor Sidney Shapiro testified 
in 2011 that ``[a]ll of the available evidence contradicts the 
claim that regulatory uncertainty is deterring business 
investment.''\130\ Similarly, leading administrative law 
scholars at the University of Pennsylvania examined the impacts 
of regulation on an economy-wide basis and concluded in 2014 
that ``regulation plays relatively little role in affecting the 
aggregate number of jobs in the United States.''\131\ 
Professors Cary Coglianese and Christopher Carrigan, the 
authors of this study, further argue that anti-regulatory 
claims are based on empty political rhetoric:
---------------------------------------------------------------------------
    \129\See, e.g., Shapiro et al., supra note 123.
    \130\The Regulatory Accountability Act of 2011: Hearing on H.R. 
3010 Before the H. Comm. on the Judiciary, 112th Cong. (2011) (prepared 
statement of Prof. Sidney Shapiro, Professor, Wake Forest School of 
Law).
    \131\6 Cary Coglianese, Adam M. Finkel & Christopher Carrigan, Does 
Regulation Kill Jobs? (2014).

        From a theoretical standpoint, regulations might reduce 
        employment by increasing product prices. But 
        regulations can also be expected to increase labor 
        demand as well, particularly in producing the 
        technologies or other compliance strategies needed to 
        implement new regulations. These opposing forces have 
        the potential to cancel each other out, and empirical 
        research to date suggests this is what happens. Most of 
        the evidence demonstrates that regulation plays a 
        relatively small role in determining the aggregate 
        number of jobs. Studies either find no relationship at 
        all or they indicate that regulation has at most modest 
        positive or negative effects on overall employment. Yet 
        . . . politicians still intensely debate regulation's 
        impact on jobs. Of course, it should not surprise 
        anyone to learn that political rhetoric does not track 
        the latest social science research. We know that 
        whatever the evidence may say about policy issues, 
        symbolic gestures play an important role in politics. 
        Politicians face intense pressure to do something in 
        the face of crisis--regardless of whether their actions 
        are likely to remedy the underlying problem.\132\
---------------------------------------------------------------------------
    \132\Christopher Carrigan and Cary Coglianese, Informing the Debate 
over Regulation's Impact on Jobs, RegBlog (Mar. 10, 2014), http://
www.regblog.org/2014/03/10/10-carrigan-coglianese-
informing-debate.

    Economic literature and empirical analysis of the impact of 
regulations on the unemployment rate bolster these analyses. 
Economic policy experts, writing for the Federal Reserve Bank 
of San Francisco, observed in 2013 that while businesses' 
concerns about the effects of regulation and taxes rose during 
the recession, ``there is no evidence that job losses were 
larger in states where businesses were more worried about these 
factors,'' whereas unemployment spiked ``precisely when 
businesses began worrying about poor sales.''\133\ Similarly, 
Richard Morgenstern, a senior fellow at Resources for the 
Future who served as a regulatory policy expert for over two 
decades under both Republican and Democratic Administrations, 
concluded that there is little economic evidence that 
environmental regulations ``are causing major job losses or 
major job gains.''\134\ Applying data from the Bureau of Labor 
Statistics, the Economic Policy Institute found that less than 
0.5% of employees lost their jobs during the recession due to 
Federal regulation.\135\ If anything, regulations can promote 
job growth and put Americans back to work. For instance, the 
BlueGreen Alliance, notes:
---------------------------------------------------------------------------
    \133\Id.
    \134\Jia Lynn Yang, Does Government Regulation Really Kill Jobs? 
Economists Say Overall Effect Is Minimal, Washington Post (Nov. 13, 
2011), https://www.washingtonpost.com/business/economy/does-government-
regulation-really-kill-jobs-economists-say-overall-effect-minimal/2011/
10/19/gIQALRF5IN_story.html.
    \135\Isaac Shapiro & John Irons, Regulation, Employment & and the 
Economy: Fears of Job Loss Are Overblown (Envtl. Pol'y Inst., Briefing 
Paper No. 305, 2011), http://epi.3cdn.net/
961032cb78e895dfd5_k6m6bh42p.pdf.

        Studies on the direct impact of regulations on job 
        growth have found that most regulations result in 
        modest job growth or have no effect, and economic 
        growth has consistently surged forward in concert with 
        these health and safety protections. The Clean Air Act 
        is a shining example, given that the economy has grown 
        204% and private sector job creation has expanded 86% 
        since its passage in 1970.\136\
---------------------------------------------------------------------------
    \136\Letter to U.S. Rep. Lamar Smith (R-TX), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary, 
from David A. Forster, Executive Director, BlueGreen Alliance, at 2 
(Nov. 2, 2011) (on file with the H. Comm. on the Judiciary, Democratic 
staff).

    Surveys of small businesses likewise confirm that Federal 
regulation is not an impediment to hiring or growth. A July 
2011 Wall Street Journal survey of business economists found 
that the ``main reason U.S. companies are reluctant to step up 
hiring is scant demand, rather than uncertainty over government 
policies.''\137\ Unsurprisingly, a September 2011 National 
Federation of Independent Business survey of its members found 
that ``poor sales'' is the biggest problem facing businesses, 
not regulation.\138\ Recent polling conducted by the American 
Sustainable Business Council, which represents over 200,000 
businesses and more than 325,000 business professionals, 
likewise indicates that most small businesses understand the 
importance of Federal regulation, reporting that ``78% of small 
employers agree regulations are important in protecting small 
businesses from unfair competition and leveling the playing 
field with big business.''\139\ Indeed, the Main Street 
Alliance, a small business organization, also observes:
---------------------------------------------------------------------------
    \137\Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, Wall St. 
J. (July 18, 2011), http://online.wsj.com/article/
SB10001424052702303661904576452181063763332.html.
    \138\Press Release, Nat'l Federation of Independent Businesses, 
Small Business Confidence Takes Huge Hit: Optimism Index Now in Decline 
for Six Months Running (Sept. 13, 2011) (``Of those reporting negative 
sales trends, 45 percent blamed faltering sales, 5 percent higher labor 
costs, 15 percent higher materials costs, 3 percent insurance costs, 8 
percent lower selling prices and 10 percent higher taxes and regulatory 
costs.''), http://www.nfib.com/press-media/press-media-
item?cmsid=58190.
    \139\Letter from American Sustainable Business Council to H. Comm. 
on the Judiciary at 2 (Jan. 4, 2016) (on file with the H. Comm. on the 
Judiciary, Democratic Staff).

        In survey after survey and interview after interview, 
        Main Street small business owners confirm that what we 
        really need is more customers--more demand--not 
        deregulation. Policies that restore our customer base 
        are what we need now, not policies that shift more risk 
        and more costs onto us from big corporate actors. . . . 
        To create jobs and get our country on a path to a 
        strong economic future, what small businesses need is 
        customers--Americans with spending money in their 
        pockets--not watered down standards that give big 
        corporations free reign to cut corners, use their 
        market power at our expense, and force small businesses 
        to lay people off and close up shop.\140\
---------------------------------------------------------------------------
    \140\Letter to U.S. Rep. Lamar Smith (R-TX), Chair, & U.S. Rep. 
John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary, 
from Jim Houser, Co-Chair, The Main Street Alliance, et al., at 1-2 
(Nov. 2, 2011) (on file with the H. Comm. on the Judiciary, Democratic 
Staff).

    Even conservative policy experts have refuted the claim 
that regulations undermine employment. Christopher DeMuth, 
formerly the president of the American Enterprise Institute, a 
conservative think tank, stated in his prepared testimony that 
the ``focus on jobs . . . can lead to confusion in regulatory 
debates'' and that ``the employment effects of regulation, 
while important, are indeterminate.''\141\ A George Washington 
University study confirms this result.\142\
---------------------------------------------------------------------------
    \141\The Regulatory Accountability Act of 2011: Hearing on H.R. 
3010 Before the H. Comm. on the Judiciary, 112th Cong. (2011) (prepared 
statement of Christopher DeMuth, American Enterprise Institute); see 
also Jia Lynn Yang, Does Government Regulation Really Kill Jobs? 
Economists Say Overall Effect Minimal, Wash. Post (Nov. 13, 2011), 
http://www.washingtonpost.com/business/economy/does-government-
regulation-really-kill-jobs-economists-say-overall-effect-minimal/2011/
10/19/gIQALRF5IN_story.html?hpid=z1 (``In 2010, 0.3 percent of the 
people who lost their jobs in layoffs were let go because of 
`government regulations/intervention.' By comparison, 25 percent were 
laid off because of a drop in business demand. . . . Economists who 
have studied the matter say that there is little evidence that 
regulations cause massive job loss in the economy, and that rolling 
them back would not lead to a boom in job creation.'').
    \142\See Regulation, Jobs, and Economic Growth: An Empirical 
Analysis, The George Washington University Regulatory Studies Center 
Working Paper, at 27 (Mar. 2012) (finding that the ``macroeconomic 
effects of regulation are uncertain'' and that the study's ``results 
reveal no impact'' when considering either the impact of regulations on 
the ``total economy or strictly the private sector''), http://
regulatorystudies.gwu.edu/images/pdf/032212_sinclair_vesey_reg_jobs_
growth.pdf.
---------------------------------------------------------------------------
    Other conservatives have also acknowledged that, in light 
of improvements in the economy and unemployment rate, it is 
becoming increasingly difficult to argue that the current 
regulatory environment has any effect on jobs or growth. 
Douglas Holtz-Eakin, president of the American Action Forum, 
commented in October 2015 that ``[w]ith low unemployment and 
rising wages, the Republicans' job gets a lot harder,'' while 
also referring to recent employment growth as 
``promising.''\143\ Gregory Valliere, a chief global strategist 
at Horizon Investments, echoed this sentiment, noting that 
``Republicans . . . can no longer credibly claim that the 
economy is terrible.''\144\ Bruce Bartlett, a senior policy 
analyst in the Reagan and George H.W. Bush Administrations, 
offers this explanation for why conservatives embrace 
deregulation as a solution for job growth:
---------------------------------------------------------------------------
    \143\Heather Long, Obama Economy: 8.7 Million Jobs, CNNMoney (Nov. 
6, 2015), http://money.cnn.com/2015/11/06/news/economy/obama-jobs.
    \144\Id.

        Republicans have a problem. People are increasingly 
        concerned about unemployment, but Republicans have 
        nothing to offer them. The G.O.P. opposes additional 
        government spending for jobs programs and, in fact, 
        favors big cuts in spending that would be likely to 
        lead to further layoffs at all levels of government. . 
        . . These constraints have led Republicans to embrace 
        the idea that government regulation is the principal 
        factor holding back employment. They assert that Barack 
        Obama has unleashed a tidal wave of new regulations, 
        which has created uncertainty among businesses and 
        prevents them from investing and hiring. No hard 
        evidence is offered for this claim; it is simply 
        asserted as self-evident and repeated endlessly 
        throughout the conservative echo chamber.\145\
---------------------------------------------------------------------------
    \145\Bruce Bartlett, Op-Ed., Misrepresentations, Regulations and 
Jobs, N.Y. Times Economix (Oct. 4, 2011), http://
economix.blogs.nytimes.com/2011/10/04/regulation-and-unemployment/.

            3. LCost Estimates of Regulations Tend To Be Overstated
    Far from an exact science, regulatory costs are notoriously 
difficult to calculate and are often dramatically over-
inflated.\146\ Robert Glicksman, professor of environmental law 
at The George Washington University Law School, has testified 
that companies ``have a strong incentive to overstate costs in 
order to skew the final cost-benefit analysis toward weaker 
regulatory standards,'' while agencies tend to adopt 
conservative assumptions about regulatory costs, such that the 
cost assessment often ends up reflecting the maximum possible 
cost, rather than the mean.''\147\ In 2013, Public Citizen 
conducted a retrospective study on claims linking job losses 
and regulations and found that none ``proved remotely 
accurate.''\148\ For instance, automakers who opposed 
catalytic-converter requirements under the Clean Air Act of 
1970 argued at the time that the requirement would ``do 
irreparable damage to the American economy'' and erase 800,000 
jobs.\149\ Notwithstanding these claims, automobile sales grew 
during the first year the rule went into effect, and automobile 
costs fell to an all-time low, tailpipe-hydrocarbon emissions 
fell by more than 57%, all without any evidence of job 
losses.\150\ In 2015, Robert Weissman, the President of Public 
Citizen, explained:
---------------------------------------------------------------------------
    \146\The Office of Information And Regulatory Affairs: Hearing 
Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law 
of the H. Comm. on the Judiciary, 114th Cong. 3 (2015) (prepared 
statement of Noah Sachs, Professor, University of Richmond School of 
Law), http://progressivereform.org/articles/
Sachs_testimony_HJud_OIRA_071515.pdf.
    \147\The Obama Administration's Regulatory War on Jobs, the 
Economy, and America's Global Competitiveness: Hearing Before the H. 
Comm. on the Judiciary, 113th Cong. (2013) (prepared statement of 
Robert Glicksman, The George Washington Law School).
    \148\Taylor Lincoln, It's an Outrage Regulations Are Entirely to 
Blame for Unemployment and a Leading Cause of Death in the United 
States, According to Industry and Its Allies, Public Citizen 4 (2013), 
http://www.citizen.org/documents/regulations-are-to-blame-unemployment-
death-report.pdf.
    \149\Id. at 6-7.
    \150\Id. at 9.

        There is also a long history of business complaining 
        about the cost of regulation--and predicting that the 
        next regulation will impose unbearable burdens. More 
        informative than the theoretical work, anecdotes and 
        allegations is a review of the actual costs and 
        benefits of regulations, though even this methodology 
        is significantly imprecise and heavily biased against 
        the benefits of regulation. Every year, the Office of 
        Management and Budget analyzes the costs and benefits 
        of rules with significant economic impact. The benefits 
        massively exceed costs.\151\
---------------------------------------------------------------------------
    \151\Examining the Federal Regulatory System to Improve 
Accountability, Transparency and Integrity: Hearing Before the S. Comm. 
on the Judiciary, 114th Cong. 29 (2015) (prepared statement of Robert 
Weissman, President, Public Citizen), http://www.citizen.org/documents/
weissman-senate-judiciary-testimony-regulatory-protections.pdf.

Indeed, the Office of Management and Budget (OMB) observed in 
its first annual report on the costs and benefits of Federal 
regulations that there are ``enormous data gaps in the 
information available on regulatory benefits and costs.''\152\ 
In a review of several dozen environmental and occupational 
safety regulations, researchers repeatedly found that ``cost 
estimates tend to be much higher than real-world compliance 
costs.''\153\ This is particularly true for the initial 
estimates of costs, which were at least twice their actual 
cost, and ``could be seen more in the nature of debating points 
than objective assessments of costs.''\154\
---------------------------------------------------------------------------
    \152\Office of Management and Budget, 1998 Report of OMB to 
Congress on the Costs and Benefits of Federal Regulations 2 (1998).
    \153\Id.
    \154\Id.
---------------------------------------------------------------------------
            4. LCongressional Inaction, Not Regulation, Undermines Wage 
                    Growth
    Anti-regulatory proponents also argue that regulations 
handicap wage growth and that public health and safety 
regulations reflect the ``preferences of high-income households 
but increases prices and reduces wages for all 
households.''\155\ This argument ignores the economic 
literature and is unsupported by any serious evidence.\156\ In 
fact, the evidence used to generate these studies--the World 
Bank's Doing Business dataset, which measures ``business 
regulation and reform in different cities and regions within a 
nation''\157\--is substantively identical to the underlying 
data used by the Crain and Crain Study, which was roundly 
debunked.\158\ Indeed, as CRS noted in its exhaustive criticism 
of that study, the authors of the World Bank report expressed 
concerns with extrapolating the underlying data of the report, 
which is not based on actual cost estimates and reflects 
opinion polling, for secondary purposes.\159\
---------------------------------------------------------------------------
    \155\Regulatory Accountability Act of 2013: Hearing Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 113th Cong. 1 (2013) (prepared statement of 
Diana Thomas, Associate Professor in the Economics, Creighton 
University), http://mercatus.org/sites/default/files/
Thomas_EffectsRegulationLowIncome_testimony_070813.pdf.
    \156\Patrick A. McLaughlin and Laura Stanley, Regulation and Income 
Inequality: The Regressive Effects of Entry Regulations (Mercatus 
Working Paper, Mercatus Center at George Mason University, 2016), 
http://mercatus.org/sites/default/files/McLaughlin-Regulation-Income-
Inequality.pdf (discussing state licensing and using data from the 
World Bank's Doing Business dataset).
    \157\World Bank Group, About Doing Business, The World Bank, http:/
/www.doing
business.org/about-us.
    \158\See, e.g., Sidney Shapiro et al., Setting the Record Straight: 
The Crain and Crain Report on Regulatory Costs, Center for Progressive 
Reform (Feb. 2011), http://www.
progressivereform.org/articles/sba_regulatory_costs_analysis_1103.pdf; 
Lisa Heinzerling & Frank Ackerman, The $1.75 Trillion Lie, 1 Mich. J. 
Envtl. & Admin. L. 127 (2012); Copeland, supra note 122.
    \159\Copeland, supra note 122.
---------------------------------------------------------------------------
    Notwithstanding the lack of support for these claims, there 
is evidence that wages have stagnated or declined for most 
workers despite increases in productivity and education 
levels.\160\ Senior economists for the Federal Reserve Bank of 
San Francisco, however, attribute this stagnation to ``downward 
nominal wage rigidity,'' which describes the ``hesitancy of 
employers to reduce wages and the reluctance of workers to 
accept wage cuts, even during recessions.''\161\ Under normal 
market conditions, unemployment and wages are closely tied such 
that a decline in unemployment normally yields higher wages. 
Downward wage rigidities, however, disrupt this relationship, 
resulting in delayed wage growth even in a period of economic 
recovery:
---------------------------------------------------------------------------
    \160\How the Administration's Regulatory Onslaught is Affecting 
Workers and Job Creators: Hearing Before the H. Comm. on Education & 
Workforce, 114th Cong. 4 (2015) (prepared statement of Christine L. 
Owens, Executive Director, National Employment Law Project), http://
democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/
files/Testimony%20of%20Christine%20Owens.Final.12-07-2015.pdf.
    \161\Mary C. Daly & Bart Hobijn, Why Is Wage Growth So Slow? FRBSF 
Economic Letter (Jan. 5, 2015), http://www.frbsf.org/economic-research/
publications/economic-letter/2015/january/unemployment-wages-labor-
market-recession.

        Downward rigidities prevent businesses from reducing 
        wages as much as they would like following a negative 
        shock to the economy. This keeps wages from falling, 
        but it also further reduces the demand for workers, 
        contributing to the rise in unemployment. Accordingly, 
        the higher wages come with more unemployment than would 
        occur if wages were flexible and could be fully 
        reduced. As the economy recovers, the situation 
        reverses and the pressure to cut wages dissipates. 
        However, the accumulated stockpile of pent-up wage cuts 
        remains and must be worked off to put the labor market 
        back in balance. In response, businesses hold back wage 
        increases and wait for inflation and productivity 
        growth to bring wages closer to their desired level. 
        Since it takes some time to fully exhaust the pool of 
        wage cuts, wage growth remains low even as the economy 
        expands and the unemployment rate declines.\162\
---------------------------------------------------------------------------
    \162\Id.

    Progressive economic experts, meanwhile, attribute wage 
stagnation to congressional inaction, particularly with regard 
to minimum-wage increases.\163\ Lawrence Mishel, president of 
the Economic Policy Institute, argues that intentional policy 
choices have greatly contributed to wage stagnation.\164\ 
``[T]he most glaring policy choices that worsened unemployment, 
and therefore contributed to wage stagnation,'' Mr. Mishel 
argues, ``are Congress's embrace of fiscal austerity and state 
and local governments' spending cutbacks.''\165\ Christine 
Owens, executive director of the National Employment Law 
Project, similarly refutes the assumption that regulations have 
depressed wage growth, and instead points to the vital 
protections that regulations provide for the workforce:
---------------------------------------------------------------------------
    \163\Lawrence Mishel, Causes of Wage Stagnation, Economic Policy 
Institute (Jan. 6, 2015), http://www.epi.org/publication/causes-of-
wage-stagnation.
    \164\Id.
    \165\Id.

        Though opponents of these actions castigate them as 
        ``job-killers,'' the reality is quite different: The 
        regulations and sub-regulatory guidance, along with the 
        President's labor-related executive orders, do not 
        deter economic growth or cost us jobs. Instead, they 
        are essential to our nation's workforce--to workers' 
        ability to earn pay commensurate with the work they do 
        and the time they spending doing it, to balance their 
        personal and professional obligations, to labor free of 
        insidious discrimination, and to work in environments 
        that do not put their health, well-being and very lives 
        in danger. Mischaracterizing these actions as bad for 
        employers, bad for workers and bad for the economy 
        ignores the crucial role that thoughtful, tailored 
        regulatory action plays in building a robust economy on 
        the foundation of safe and healthy workplaces, where 
        workers earn living wages and have fair opportunities 
        to advance.\166\
---------------------------------------------------------------------------
    \166\How the Administration's Regulatory Onslaught is Affecting 
Workers and Job Creators: Hearing Before the H. Comm. on Education & 
Workforce, 114th Cong. 4 (2015) (prepared 
statement of Christine L. Owens, Executive Director, National 
Employment Law Project), http://democrats.edworkforce.house.gov/sites/
democrats.edworkforce.house.gov/files/Testimony%20of%
20Christine%20Owens.Final.12-q07-2015.pdf.

            5. LRegulations Help Promote Greater Entrepreneurship, 
                    Competition, and Innovation
    Some anti-regulatory proponents argue that regulations may 
be ``detrimental to economic prosperity to the extent that it 
deters entrepreneurship.''\167\ Higher levels of regulation, 
they assert, may benefit large incumbent firms while placing 
disproportionate compliance costs on smaller competitors.\168\ 
Alex Tabarrok, an economics chair at the Mercatus Center, 
refuted this argument in a 2015 study on the effects of 
regulation on entrepreneurship.\169\ Applying the same data set 
as the anti-regulatory studies, Mr. Tabarrok found that 
``industries with greater regulatory stringency have higher 
startup rates,'' as well as similarly high job-creation 
rates.\170\ James Goodwin, a senior policy analyst at the 
Center for Progressive Reform, adds that regulations also have 
the effect of creating new markets for competition.\171\ For 
example, regulating toxic chemicals has resulted in new 
competition by firms and startups in the chemical manufacturing 
industry.\172\ Frank Knapp, Jr., president of the South 
Carolina Small Business Chamber of Commerce, further argues:
---------------------------------------------------------------------------
    \167\James Bailey & Diana Thomas, Regulating Away Competition: The 
Effect of Regulation on Entrepreneurship and Employment (Mercatus 
Working Paper, Mercatus Center at George Mason University, 2015), 
http://mercatus.org/publication/regulating-away-competition-effect-
regulation-entrepreneurship-and-employment.
    \168\Id.
    \169\Nathan Goldschlag & Alexander Tabarrok, Is Regulation to Blame 
for the Decline in American Entrepreneurship? (Mercatus Working Paper, 
Mercatus Center at George Mason University, 2014), http://mercatus.org/
sites/default/files/Bailey-Regulation-Entrepreneurship.pdf.
    \170\Alex Tabarrok, Is Regulation to Blame for the Decline in 
American Entrepreneurship? MarginalRevolution (Feb. 18, 2015), http://
marginalrevolution.com/marginalrevolution/2015/02/is-regulation-to-
blame-for-the-decline-in-dynamism.html.
    \171\Tangled in Red Tape: New Challenges for Small Manufacturers: 
Hearing Before the H. Comm. on Small Business, 114th Cong. 4 (2015) 
(prepared statement of James Goodwin, Senior Policy Analyst, Center for 
Progressive Reform), http://www.progressivereform.org/articles/
Goodwin%20Testimony%20House%20Small%20Business%20Final%20(2).pdf.
    \172\Id.

        Every responsible new rule that protects the health of 
        our citizens and workers opens a door to newer and 
        better products. Our nation is loaded with these small 
        business entrepreneurs just waiting to solve a problem 
        when the demand is created.\173\
---------------------------------------------------------------------------
    \173\Regulatory Flexibility Act Compliance: Is EPA Failing 
Business?: Hearing Before the H. Comm. on Small Business, 112th Cong. 3 
(2012) (prepared statement of Frank Knapp, President, South Carolina 
Small Business Chamber of Commerce), http://smallbusiness.house.gov/
uploadedfiles/6-27_knapp_testimony.pdf.

Regulatory reform proposals, meanwhile, would undermine 
competition and small-business creation. David Levine, CEO of 
the American Sustainable Business Council, states that anti-
regulatory legislation would ``only worsen the uneven economic 
playing field'' for small businesses, providing incumbent and 
large businesses with a competitive advantage.\174\ Views in 
this light, a deregulatory business environment would serve as 
a serious impediment for startups and innovation.
---------------------------------------------------------------------------
    \174\Letter from American Sustainable Business Council to H. Comm. 
on the Judiciary at 2 (Jan. 4, 2016) (on file with the H. Comm. on the 
Judiciary, Democratic Staff).

            B. LProponents of Anti-Regulatory Legislation Ignore the 
                    Net Benefits of Regulations
    Anti-regulatory proponents frequently fail to account for 
the benefits of regulation, even though they often greatly 
exceed regulatory costs.\175\ In its critical report on the 
Crain and Crain study, CRS concluded that ``a valid, reasoned 
policy decision can only be made after considering information 
on both costs and benefits'' of regulation.\176\ The Economic 
Policy Institute reached a similar conclusion.\177\ The 
Government Accountability Office (GAO) observes that while the 
cost of regulations ``are estimated to be in the hundreds of 
billions of dollars,'' the ``benefits estimates are even 
higher.''\178\ The Office of Management and Budget (OMB), which 
estimates the costs and benefits of regulations, reported in 
2015 that from October 1, 2004, to September 30, 2014, the 
costs of regulation ranged in the aggregate between $57 billion 
and $85 billion, while the benefits were estimated to be 
between $216 billion and $812 billion.\179\ Therefore, even if 
one uses OMB's highest estimate of costs and its lowest 
estimate of benefits, regulations issued over the past 10 years 
have produced net benefits of $216 billion to our society. Such 
estimates were consistent across Democratic and Republican 
administrations.\180\ Given that the benefits of regulations 
consistently exceed the costs, the need for any legislation 
that would make the issuance of regulations more difficult or 
time consuming is certainly in question.
---------------------------------------------------------------------------
    \175\The Office of Information and Regulatory Affairs: Hearing 
Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law 
of the H. Comm. on the Judiciary, 114th Cong. 3 (2015) (prepared 
statement of Noah Sachs, Professor, University of Richmond School of 
Law), http://progressivereform.org/articles/
Sachs_testimony_HJud_OIRA_071515.pdf.
    \176\Copeland, supra note 122.
    \177\John Irons & Andrew Green, Flaws Call for Rejecting Crain and 
Crain Model: Cited $1.75 Trillion Cost of Regulations Is Not Worth 
Repeating, Economic Policy Institute (July 19, 2011), http://w3.epi-
data.org/temp2011/IssueBrief308.pdf.
    \178\U.S. Gov't Accountability Off., GAO-05-939T, Regulatory 
Reform: Prior Reviews of Federal Regulatory Process Initiatives Reveal 
Opportunities for Improvements 1 (2007), http://www.gao.gov/assets/120/
112084.pdf.
    \179\Office of Management and Budget, Draft 2015 Report to Congress 
on the Benefits and Costs of Federal Regulations and Unfunded Mandates 
on State, Local, and Tri-
bal Entities 2, https://www.whitehouse.gov/sites/default/files/omb/
inforeg/2015_cb/draft_
2015_cost_benefit_report.pdf
    \180\Id.
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    The benefits of regulation are also apparent when viewed 
through the lens of prevention. For example, a 2011 
Environmental Protection Agency report found that the public 
health benefits of clean air regulations far outweigh the 
compliance cost to industry.\181\ The report concluded that 
restrictions on fine particle and ground-level ozone pollution 
mandated by the 1990 Clean Air Act amendments would prevent 
230,000 deaths and produce benefits of about $2 trillion by 
2020.\182\
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    \181\Environmental Protection Agency, Benefits and Costs of the 
Clean Air Act, Second Prospective Study: 1990 to 2020 (2011), http://
www.epa.gov/air/sect812/prospective2.html
    \182\Id; see also Editorial, The Job-Creating Mercury Rule, N.Y. 
Times (Feb. 22, 2012), http://www.nytimes.com/2012/02/23/opinion/the-
job-creating-mercury-rule.html (noting that an estimated 11,000 deaths 
will be prevented by pending mercury rule under the Clean Air Act).
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                               CONCLUSION

    By mandating that Federal courts review de novo all agency 
rulemakings and statutory interpretations, H.R. 4768, the 
``Separation of Powers Restoration Act of 2016,'' overrides 
longstanding and well-reasoned Supreme Court precedent 
establishing judicial deference to agencies' statutory 
interpreations, which acknowledges the intrinsic value of 
agency expertise and political accountability in rulemaking. 
The direct effect of H.R. 4768 is that it would empower a 
generalist court to nullify agency action solely on policy 
grounds. As a result, the rulemaking process will become even 
more costly and time-consuming because it would force agencies 
to adopt even more detailed factual records and explanations, 
which would further delay the promulgation of critical rules 
safeguarding public health, safety, and the environment. 
Furthermore, the bill presents possible separation of power 
concerns because the measure fails to impose any constraint on 
its heightened standard of judicial review, thereby allowing 
courts to substitute their policy for the agencies' expertise 
and congressionally delegated authority. And, like many other 
anti-regulatory initiatives proposed by the Majority, H.R. 4768 
is a very ill-conceived solution in search of a non-existent 
problem.
    For the foregoing reasons, we strongly oppose H.R. 4768 and 
we urge our colleagues to join us in opposition.

                                   Mr. Conyers, Jr.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Ms. Chu.
                                   Mr. Gutierrez.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.

                                 [all]