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

H.R. 4768

Separation of Powers Restoration Act of 2016

Committee
Judiciary

Date
June 23, 2016 (114th Congress, 2nd Session)

Staff Contact
John Huston

Floor Situation

On Thursday, June 23, 2016, the House will begin consideration of H.R. 4768, the Separation of Powers Restoration Act of 2016, under a structured rule. The bill was introduced on March 16th, 2016, by Rep. John Ratcliffe (R-TX) and was referred to the Committee on the Judiciary, which ordered the bill to be reported on June 8, 2016 by voice vote.

Bill Summary

H.R. 4768 would amend the Administrative Procedure Act to overturn the so-called Chevron and Auer doctrines of judicial deference to agency interpretations of statutory and regulatory provisions.[1]

—————–
[1] See Committee of the Judiciary Report, “Separation of Powers Restoration Act of 2016.” June 14, 2016.

Background

The Chevron and Auer doctrines are fundamental elements fo modern regulatory jurisprudence. These two elements often form the rubric for regulatory cases in our modern court system. The Chevron doctrine comes from a landmark Supreme Court Case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under the Chevron doctrine, a court must determine if a statute speaks clearly to the question the agency has addressed. If so, the court must follow the expressed intent of Congress. If the statute does not reflect a clear congressional content (“Silent or Ambiguous” on the question), the doctrine indicates the court is to defer to the agency’s interpretation, provided that it is within the “permissible” range of statutory interpretations.[1]

Ambiguity surrounding the implementation of Chevron doctrine has abounded in the Court system, Congress, and legal academia. Many Supreme Court and appeals court decisions have tried to evolve and clarify the doctrine, but this has in turn evolved into a complex set of case law and an evolving set of legal doctrines for review of agencies’ statutory interpretations. This complex series of case law decisions has increased the power of the Federal administrative agencies, giving them power as they seek “permissible” interpretations of statutory provisions. In this ambiguity, the federal agencies have increasingly expanded their powers, as they are not restricted by clear, bright lines. Chevron gave a large amount of deference to agencies, but the Court has had difficulty establishing exactly when deference to a federal agency is appropriate and when it is not.[2]

Judicial deference in interpretation also extends to agencies’ interpretations of ambiguities in their own regulations. This legal principle of self-interpretation was affirmed in Auer v. Robbins, 519 U.S. 452 (1997). In Auer, the Court stated that, because regulations are a creature of the agency’s own regulations, the agency’s interpretation of it “is….controlling unless ‘plainly erroneous or inconsistent with regulation.’” Furthermore, the agency is not bound to write its regulations narrowly, as it is free to write regulations as broadly as it wishes, subject only to the limits imposed by the statute, in the interpretation of which the agency may obtain Chevron deference.[3]

The Auer doctrine has come under increasing scrutiny, as it gives agencies perverse incentives to increase their regulatory power through vague and ambiguous regulations at the potential expense of clear and productive policy. Articulating this sentiment, Justice Thomas in the case of Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994), stated: “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 the more cumbersome rulemaking process.”[4]

Between Chevron and Auer, the power of the administrative agencies has increased dramatically as the agencies, Courts, and legal community have sought to navigate the ambiguities in statutory and regulatory law.

According to the bill sponsor, “We’ve already seen unelected bureaucrats try to tell people what kind of light bulbs they can buy, attempt to regulate puddles in people’s backyards and fail immensely at taking over Americans’ healthcare. We must ensure the integrity of our three co-equal branches of government, and this legislation will stop administrative agencies from taking powers the Constitution does not give them.”[5]

——————
[1] See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), Page 2-3.
[2] Id.
[3] See Auer v. Robbins, 519 U.S. 452 (1997).
[4] See Thomas Jefferson Univ. v. Shalala 512 U.S. 504, 525 (1994).
[5] See Rep. John Ratcliffe Press Release, “Rep. Ratcliffe introduces bill to rein in power of federal bureaucrats,” March 17, 2016.

 

Cost

The Congressional Budget Office (CBO) is not able to determine a cost estimate.

Additional Information

For questions or further information please contact John Huston with the House Republican Policy Committee by email or at 6-5539.