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SEPARATION OF POWERS RESTORATION ACT 

OF 2016 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

ON

H.R. 4768 

MAY 17, 2016 

Serial No. 114–77 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND ANTITRUST LAW

TOM MARINO, Pennsylvania, Chairman 

BLAKE FARENTHOLD, Texas, Vice-Chairman 

DARRELL E. ISSA, California 

DOUG COLLINS, Georgia 

MIMI WALTERS, California 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

DANIEL FLORES, Chief Counsel 

SLADE BOND, Minority Counsel 
(III) 

C O N T E N T S 

MAY 17, 2016 

Page 

THE BILL 

H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016’’ .......................... 3 

OPENING STATEMENTS 

The Honorable Tom Marino, a Representative in Congress from the State 

of Pennsylvania, and Chairman, Subcommittee on Regulatory Reform, Commercial and Antitrust Law .................................................................................. 1 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Ranking Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ................................................. 5 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 6 

WITNESSES 

John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia 

School of Law 

Oral Testimony ..................................................................................................... 9 

Prepared Statement ............................................................................................. 12 

Jack M. Beermann, Professor of Law and Harry Eldwood Warren SCholar, 

Boston University School of Law 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 24 

Jeffrey Bossert Clark, Sr., Partner, Kirkland & Ellis LLP 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

John D. Walke, Esq, Clean Air Director, Natural Resources Defense Council 

(NRDC) 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 48 

Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 63 

Adam J. White, Research Fellow, The Hoover Institution, Adjunct Professor, 

The Antonin Scalia Law School at George Mason University 

Oral Testimony ..................................................................................................... 83 

Prepared Statement ............................................................................................. 85 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 111 
(IV) 

OFFICIAL HEARING RECORD 

UNPRINTED MATERIAL SUBMITTED FOR THE HEARING RECORD

Supplemental material submitted by Jack M. Beermann, Professor of Law and 

Harry Eldwood Warren Scholar, Boston University School of Law. This material 

is available at the Subcommittee and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=104928 
(1) 

SEPARATION OF POWERS RESTORATION ACT 

OF 2016 

TUESDAY, MAY 17, 2016 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 1 p.m., in room 2141, 

Rayburn House Office Building, the Honorable Tom Marino, 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Marino, Goodlatte, Issa, Collins, Walters, Ratcliffe, Johnson, DelBene, and Peters. 

Staff Present: (Majority) Daniel Flores, Chief Counsel; Andrea 

Lindsey, Clerk; and (Minority) Slade Bond, Minority Counsel. 

Mr. MARINO. The Subcommittee on Regulatory Reform, Commercial and Antitrust Law, will come to order. Without objection, the 

Chair is authorized to declare recess of the Committee at any time. 

We welcome everyone to today’s hearing on H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016.’’ And I now recognize myself for an opening statement. 

Today’s hearing continues our discussion and inquiry into the 30- 

plus-year-old Chevron doctrine. Our prior hearing gave us an opportunity to examine Chevron, and question whether or not it remains appropriate in light of the modern administrative state. 

Today, we turn to H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016,’’ a piece of legislation offered by my friend from 

Texas, Congressman Ratcliffe. I am proud to cosponsor this legislation that would begin the process of reeling in administrative overreach. 

As Chief Justice John Roberts correctly described it 2 years ago, 

in his dissent in City of Arlington v. FCC, ‘‘The Framers could 

hardly have envisioned today’s vast and varied Federal bureaucracy and the authority administrative agencies now hold over our 

economic, social, and political activities.’’ 

My own experience as an industrial banker, prosecutor, and now 

legislator, have exposed me to the myriad levels of hurdles and 

complete unknowns of the modern administrative state. 

Navigating this morass is a daunting task, if not impossible; 

challenges for employers and workers across the Nation. Agencies 

often too numerous to count interject themselves into nearly every 
2 

aspect of daily life. And to make matters worse, the bureaucrats 

writing regulation know how to shape their rules to satisfy Chevron and achieve their sought-after outcome. 

For regulated entities, especially small businesses, the deck is 

stacked against them from the start. But these citizens have sent 

us to Washington as representatives of their interests, hardship, 

and, we hope, success. It is a privilege we often take for granted, 

and an honor that we can repay through thoughtful, clear, and concise lawmaking. The Chevron doctrine represents an abdication of 

the legislative responsibility. 

Over 30 years of Chevron deference, we have seen the gradual 

creep of executive agencies from administrators of the legislative 

process to becoming legislators themselves. Rather than executing 

the will of Congress, agencies now have the freedom to define the 

law as they see fit. This is not a system that respects the checks 

and balances that have existed since the first days of our Nation. 

Chevron and its progeny are a departure not only from the Constitution, but from the Administrative Procedure Act, Congress’ 

original effort to bring order to the rulemaking process. 

Today’s discussion on the ‘‘Separation of Powers Restoration Act 

of 2016’’ presents an opportunity to reassert the lawmaking authority of Congress. It embodies the tripartite vision of governance established by our founders. The unfortunate nature of the 21st Century administrative state is its breadth and reach. 

As I said in March, while the Chevron doctrine may not be as 

glamorous or headline-worthy as other issues before Congress, its 

effect on the everyday lives of Americans cannot be understated, 

and its ability to fundamentally change the working of our government, and undo the guards long put in place to prevent tyranny 

and abuse, is profound. 

Our goal today is to examine the bill before us. Our hope is craft 

a final bill that creates stability in the rulemaking process, removes the power to legislate that has slowly found its way into the 

rulemaking process, and return the judiciary to its proper role and 

power to say what the law is. 

[The bill, H.R. 4768, follows:] 
3 
4 
5 

Mr. MARINO. We are fortunate to have a panel of witnesses with 

a wide range of expertise and experience on this issue. I look forward to their testimony and an engaging discussion of this important issue. I now recognize the Ranking Member of the Subcommittee, Mr. Johnson from Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. Judicial review of final 

agency action is a hallmark of administrative law, and is critical 

to ensuring that agency action does not harm or adversely affect 

the public. But as the Supreme Court held in Chevron v. Natural 

Resources Defense Council, reviewing courts may only invalidate an 

agency action when it violates a constitutional provision, or when 

an agency exceeds its statutory authority as clearly expressed by 

Congress. For the past 30 years, this seminal decision has required 

deference to the substantive expertise and political accountability 

of Federal agencies. 

Judicial deference is borne from principles of political accountability and separation of powers. As the Court explained in Chevron, ‘‘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 responsibility in the political 

branches.’’ H.R. 4768, the ‘‘Separation of Powers Restoration Act of 

2016,’’ so-called, would eliminate this longstanding tradition of judicial deference to agencies’ interpretation of statutes and rules by 

requiring courts to review all agency interpretations of statutes 

and rules on a de novo basis. This misguided legislation is not the 

majority’s first attempt to gum up the rulemaking process through 

enhanced judicial review. 

Since the 112th Congress, a number of deregulatory bills we 

have considered, such as H.R. 185, the ‘‘Regulatory Accountability 

Act,’’ would require generalist courts to supplant the expertise and 

political accountability of agencies in rulemaking process with their 

own judgments. Compare this approach with other deregulatory 

bills passed this Congress that would greatly diminish judicial review over deregulatory actions by dramatically shortening the statutes of limitations for judicial review, sometimes to just 45 days. 

In other words, the majority wants to have it both ways. When 

it benefits corporate interests, Republican legislation heightens 

scrutiny of agency rulemaking, threatening to impose years of 

delay and untold cost on taxpayers. When it benefits the public or 

our environment, Republican legislation slams the courthouse 

doors shut through sweeping restrictions on the court’s ability to 

protect public health or the environment. 

These proposals, which are transparently the design of the donor 

class to minimize their exposure to legal accountability, are just 

another example of how some not only want the fox to guard the 

chicken coop, they want to give the fox the responsibility of keeping 

the chicken coop clean as well. H.R. 4768 is more of the same. 

In closing, I look forward to testimony from our esteemed panel, 

and I thank the witnesses for their testimony. And with that, I 

yield back. 
6 

Mr. MARINO. The Chair now recognizes the Chairman of the full 

Committee, Mr. Bob Goodlatte of Virginia, for his opening statement. 

Mr. GOODLATTE. Thank you, Mr. Chairman. The modern Federal 

administrative state is an institution unforeseen by the Framers of 

our Constitution and rapidly mushrooming out of control. The ‘‘Separation of Powers Restoration Act of 2016’’ takes square aim at one 

of the biggest roots of this problem—the Chevron doctrine, under 

which Federal courts regularly defer to regulatory agencies’ selfserving interpretations of the statutes they administer. 1Similarly, 

the bill takes on the related Auer doctrine, under which courts 

defer to agencies’ interpretations of their own regulations. 

In perhaps the most famous of Supreme Court’s early decisions, 

Marbury v. Madison, Chief Justice Marshall declared for a unanimous Court that, ‘‘It is emphatically the province and duty of the 

judicial department to say what the law is.’’ 

Since the Chevron doctrine allows judges to evade interpreting 

the law and instead to defer to agencies’ interpretations, one must 

ask—is Chevron faithful to Marbury and the separation of powers? 

In the ‘‘Administrative Procedure Act of 1946,’’ often called the 

‘‘Constitution’’ of Administrative Law, Congress provided for judicial review of agency action in terms that were plain and direct. It 

stated that ‘‘the reviewing court shall decide all relevant questions 

of law [and] interpret constitutional and statutory provisions.’’ 

That standard is consistent with Marbury and the separation of 

powers. But since Chevron allows judges to escape interpreting 

statutory provisions themselves, one must ask—is Chevron unfaithful not only to Marbury and the separation of powers, but also the 

‘‘Administrative Procedure Act?’’ 

These are not just academic questions. They are fundamental 

questions that go to the heart of how our government works, and 

whether the American people can still control it. 

The genius of the Constitution was that, by separating the legislative, executive, and judicial powers into three distinct branches, 

the ambitions of each branch would check and balance the ambitions of the others. As long as the separation is kept strong, that 

system of checks and balances preserves liberty—as the Framers 

intended. 

But judicial deference under Chevron weakens the separation of 

powers, threatening liberty. It bleeds out the judicial branch power 

to say that what the law is, transfusing that power into the executive branch. And, it tempts Congress to let the hardest work of legislating bleed out of Congress and into the executive branch, since 

Congress knows judges will defer to agency interpretations of ambiguities and gaps in statutes Congress did not truly finish. 

This leads us down the dangerous slope James Madison warned 

against in Federalist 47—‘‘the accumulation of all powers, legislative, executive, and judiciary, in the same hands,’’ that ‘‘may justly 

be pronounced the very definition of tyranny.’’ 

This is what Americans across our Nation feel in their bones to 

be dangerous when they fear a Federal regulatory bureaucracy 

growing beyond limits, spinning out of control. They fear a government emboldened to burst our system of checks and balances, trespass without limit on their liberty, and threaten their way of life— 
7 

all at the whim of ‘‘swarms of administrators’’ in a far-off capital. 

They fear an all-reaching, unaccountable bureaucracy that threatens our system of self-government by and with the consent of the 

people. 

The ‘‘Separation of Powers Restoration Act of 2016’’ is timely, 

bold legislation directed straight at this problem. In one fell swoop, 

it restores the separation of powers by legislatively overturning the 

Chevron doctrine and the related Auer doctrine. This is reform that 

we must make reality for the good of the people. 

I look forward to the testimony of our witnesses as we consider 

this crucial bill, and I am particularly interested in hearing their 

views on whether more terms should be added to the bill to further 

guide the judiciary on the appropriate interpretation of statutes 

and regulations as it resumes fully ‘‘the province and duty of the 

judicial department to say what the law is.’’ 

And I want to especially thank my colleague from Texas, Mr. 

Ratcliffe, for his leadership on this issue, and for introducing this 

fine legislation, and to Chairman Marino, for his work Chairing 

this Subcommittee and addressing this important subject. Mr. 

Chairman, I yield back. 

Mr. MARINO. Thank you. Without objection, other Member’s 

opening statements will be made part of the record. 

I will begin by swearing in our witnesses before introducing 

them. So would you please stand and raise your right hand? 

Do you swear that the testimony you are about to give before 

this Committee is the truth, the whole truth, and nothing but the 

truth, so help you God? 

Let the record reflect that the witnesses have answered in the 

affirmative. Please be seated. Thank you. 

I am going to read each of the witness’—each of your introductions. I will get through all six of you and then we will get back 

to you making your opening statements as well. Okay? 

John Duffy is the Samuel H. McCoy professor of law at the University of Virginia Law School. Prior to joining UVA’s law school, 

Professor Duffy taught at the George Washington Benjamin N. 

Cardozo and William & Mary Schools of Law. He has also taught 

at the University of Chicago Law School. Professor Duffy served as 

an attorney advisor in the Department of Justice’s Office of Legal 

Counsel, and practiced law with the firm of Covington and Burling. 

Professor Duffy is widely published, and a coauthor of a casebook 

on patent law. Professor Duffy earned his bachelor’s degree in 

Physics from Harvard University, and his law degree from the University of Chicago, where he served as articles editor of the Law 

Review. Professor Duffy clerked for Judge Stephen Williams on the 

U.S. Court of Appeals for the D.C. Circuit, and for the late U.S. Supreme Court Justice Antonin Scalia. Welcome, professor. 

Jack Beermann is the Harry Elwood Warren Scholar at the Boston University School of Law. He previously taught at various universities, including Harvard, DePaul, the Interdisciplinary Center 

in Herzliya, Israel, and the China University of Political Science 

and Law. 

Professor Beermann is published widely in top-ranked journals. 

He has authored and coauthored four books on administrative law, 

including a widely-used casebook and the Emanuel Law Outline on 
8 

the subject. Professor Beermann earned his bachelor’s degree in political science and philosophy from the University of Wisconsin, 

Madison. He holds a law degree from the University of Chicago 

Law School, where he was elected Order of the Coif and served as 

editor of the Law Review. Welcome, Professor. 

Jeffrey Clark is a partner at the law firm of Kirkland and Ellis, 

LLP, and specializes in complex trial and appellate litigation. Mr. 

Clark has been with the firm since 1996, with the exception of 

2001 to 2005, when he served as the Deputy Assistant Attorney 

General for the Environment and Natural Resources Division of 

the Justice Department. During his appointment at Justice, Mr. 

Clark supervised the division’s Appellate Section, 50 lawyers and 

staff, and Indian Resources Section, 25 lawyers and staff. He has 

argued and won the noted Massachusetts v. EPA case in the D.C. 

circuit, and is rated AV preeminent, 5.0 out of 5, by the Martindale 

Hubbell, the highest level of professional excellence. 

Prior to joining Kirkland and Ellis, Mr. Clark was a law clerk 

for Judge Danny J. Boggs of the United States Court of Appeals 

for the Sixth Circuit. He has written and appeared extensively in 

public on topics in energy efficiency, clean air, and water law, administrative law, and constitutional law. 

Mr. Clark is an elected member of the Governing Council of the 

ABA Administrative Law Section, and is currently serving as cochair of the ABA Section of Administrative Law and Regulatory 

Practice’s Committee on Environmental and Natural Resources 

Regulation. 

Mr. Clark graduated with an AB in economics and Russian/Soviet history, cum laude, from Harvard University; an MA in urban 

affairs and public policy, summa cum laude, from the University of 

Delaware; and the J.D., magna cum laude, from Georgetown University Law School. Welcome, sir. 

Mr. Walke is a Senior Attorney and Clean Air Director for Natural Resources Defense Council in Washington, D.C. He is responsible for NRDC’s national clean air advocacy program before Congress, the courts, and the U.S. Environmental Protection Agency. 

Prior to joining NRDC, Mr. Walke worked for the EPA in the Air 

and Radiation Law Office of the Office of General Counsel. At the 

EPA, he worked on permitting, air toxics, monitoring, and enforcement issues under the Clean Air Act. 

Prior to working for EPA, Mr. Walke was an associate at 

Beveridge and Diamond in Washington, D.C. Mr. Walke graduated 

from Duke University with a BA in English, and earned his JD 

from Harvard Law School. Thank you, Mr. Walke, for being here. 

Ronald Levin is the William R. Orthwein Distinguished Professor 

of Law at Washington University in St. Louis. Mr. Levin is the coauthor of a casebook, State and Federal Administrative Law. Professor Levin has chaired the Section of Administrative Law and 

Regulatory Practice of the American Bar Association, a group of 

which he is still an active member. He served as the ABA’s advisor 

to the drafting committee to revise the Model State Administrative 

Procedure Act. 

Professor Levin also served as a public member of the Administrative Conference of the United States, and the chair of its Judicial Review Committee. Professor Levin clerked for the Honorable 
9 

John C. Godbold of the U.S. Court of Appeals for the Fifth Circuit, 

and practiced with the Washington, D.C., firm of Sutherland, 

Asbill, and Brennan. Mr. Levin received his BA from Yale and his 

JD from the University of Chicago. Welcome, Mr. Levin. 

Adam White is a fellow at the Hoover Institution, and the Adjunct Professor at the Antonin Scalia Law School at George Mason 

University. Prior to joining Hoover, he was an adjunct fellow at the 

Manhattan Institute. Mr. White practiced law with Baker Botts, 

working on various constitutional and regulatory matters, including energy infrastructure regulation. 

He also practiced law with Boyden Gray and Associates, where 

he wrote briefs on constitutional and regulatory issues in the Supreme Court and various other Federal courts. He continues to be 

of counsel to the firm in three pending cases involving the Consumer Financial Protection Bureau, and the Federal Communications Commission. Mr. White writes on the courts and the administrative state for such publications as the Weekly Standard, The 

Wall Street Journal, Commentary, The Harvard Journal of Law 

and Public Policy, and SCOTUSblog. In 2015, he was appointed to 

the Leadership Council of the American Bar Association’s Section 

of Administrative Law and Regulatory Practice. 

He co-chairs the Section’s Judiciary Review Committee, and codirects its Supreme Court Series. Mr. White received his bachelor’s 

degree in Economics from the University of Iowa College of Business, and his law degree from Harvard Law School, where he graduated cum laude. He clerked for Judge David B. Sentelle of the 

United States Court of Appeals for the D.C. Circuit. Welcome, sir. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. I ask that each witness summarize his 

or her testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light in front 

of you, and it is—I do not know the colors because I am color-blind, 

but what I will do is as it gets down to the last color, which I am 

told is the red light, I will just diplomatically pick up my little 

gavel here and let you know that: would you please finish as soon 

as possible. 

Professor Duffy, you are on. 

TESTIMONY OF JOHN F. DUFFY, SAMUEL H. McCOY II PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW 

Mr. DUFFY. Thank you. Chairman Marino, Chairman Goodlatte, 

Ranking Member Johnson, and the distinguished Members of the 

Subcommittee, thank you for inviting me to testify before you 

today. 

At the outset, I would like to compliment the Subcommittee for 

devoting time and attention to this matter, and to this important 

piece of legislation, H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016.’’ The proposed legislation would be a welcome 

path out of the ever-growing morass of complex case law that these 

doctrines have generated over the past several decades. 

Importantly, the proposed legislation is admirable in its elegance 

and brevity, filling up less than a page of legislative text, and adding a mere two words, de novo, plus some accompanying stylistic 

changes, to the first sentence of Section 706 of the APA. 
10 

This is a highly desirable approach to supplanting the Chevron 

doctrine and other judge-made doctrines of deference with a clear, 

easily understood, and theoretically sound principle to govern judicial review of all legal issues arising in administrative cases. My 

written statement and prior testimony sets forth in detail why I believe that the proposed legislation is not really changing the APA, 

but is instead confirming the statute’s original meaning. 

I will mention one point in particular right now, which is that 

so strong are the statutory arguments in favor of de novo review: 

a de novo standard of review for legal questions from the original 

APA, that when Federal courts of appeals have focused on the relevant statutory language, they have interpreted the APA as requiring de novo review of statutory interpretation, even in the years 

after the Supreme Court decision in Chevron. One of the most important benefits of the proposed legislation is 

that it would eliminate the uncertainties and needless complexities 

of current decisional law. The Chevron doctrine as it exists today, 

and indeed the entire set of judge-made doctrines requiring deference to agency legal positions, is riddled with complexities and 

exceptions. 

Indeed, so pervasive are the exceptions that it would be wrong 

to assert that the proposed legislation would overrule or overturn 

the Chevron doctrine, or other doctrines requiring judicial deference on legal issues. It is far more accurate to say the legislation 

would get rid of what is left of these doctrines, and as discussed— 

as I have discussed in my written statement, what is left is not so 

much in many areas. 

Chevron and other doctrines requiring judicial deference on legal 

issues have come under increasing intellectual scrutiny over the 

past 2 decades, and because of the inherent theoretical weaknesses 

of the doctrine, the Supreme Court has made exceptions to them. 

As a result, the doctrines are both weakened and unpredictable. 

Just last year, the Supreme Court in King v. Burwell held that 

Chevron deference is inapplicable to any issue of deep economic 

and political significance that is central to a statutory scheme. 

King’s exception to Chevron, which might be called a ‘‘too big to 

defer’’ exception, creates a major limitation on Chevron, and also 

increases the opportunity for more litigation about whether Chevron should apply at all in any particular case, making the doctrine 

less valuable for agencies, and more burdensome on all litigants. 

Another example about the complexities of this doctrine comes 

from the patents system, an area of administrative regulation in 

which I teach and write. Under consistent lower court precedent 

and Supreme Court practice, the Patent Office gets no deference in 

its interpretation of the substantive provisions of the Patent Act, 

but why? 

Under the reasoning of Chevron, which stresses the need for deference to expert politically accountable agencies, the Patent Office 

would seem to be a leading candidate to receive deference. There 

are, of course, doctrinal reasons for the absence of deference in this 

area, but those doctrinal reasons nearly underscore the complexity 

and incoherence of the case law spawned by Chevron. Though the 

proposed legislation would clearly end judicial deference to agency 

legal positions, it would not foreclose several unobjectionable judi-
11 

cial practices detailed in my written statement that are sometimes 

confused with deference. 

I will not detail those doctrines in my oral statement, but just 

say that those statements—those additional principles do not need 

to be codified in this proposed legislation, and I think the legislation as it exists now is an admirable and elegant vehicle. 

In closing, I once again commend the Subcommittee for devoting 

time to this important matter, and for devising an elegant way to 

restore the traditional role of Federal courts to say what the law 

is. Thank you for your time and attention to these issues, and 

thank you for the invitation to speak to the Subcommittee. 

[The prepared statement of Mr. Duffy follows:] 
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Mr. MARINO. Thank you. Professor Beermann? 

TESTIMONY OF JACK M. BEERMANN, PROFESSOR OF LAW AND 

HARRY ELDWOOD WARREN SCHOLAR, BOSTON UNIVERSITY 

SCHOOL OF LAW 

Mr. BEERMANN. Thank you very much, Chairman Marino and 

Ranking Member Johnson, and distinguished Members of the Subcommittee. It is truly heartwarming as an administrative law professor to see the Committee spending such dedicated time and attention to this important issue that many of us have been working 

on for years. And I am a Chevron skeptic, as the material included 

with my written submission reveals, and the language of H.R. 4768 

would certainly be a complete reversal of Chevron and related doctrines. 

But while I share the view that the Chevron doctrine has gone 

too far and has become too confusing, the long history of judicial 

deference to agency legal decisions may point in favor of a less 

complete rejection of deference. 

Long before Chevron, it was generally understood that reviewing 

courts should pay close attention to agency reasoning when reviewing agency legal decisions, especially agency construction of the 

agency’s enabling act in order to ensure that agencies remained 

within their delegation from Congress. 

What was extreme about Chevron was its assumption that statutory silence or ambiguity virtually always indicates Congress’s intent to delegate interpretive authority to the administrative—to the 

administering agencies. Even if this assumption was erroneous, 

that does not mean that Congress does not sometimes delegate interpretive authority to an agency. In highly technical or sensitive 

areas in which Congress expects agencies to apply expertise, ambiguity might be an indication that Congress might want a reviewing 

court to be highly attentive to the agency’s views. 

For example, when Congress delegated authority to the Federal 

Communications Commission to award broadcast licenses in the 

public interest, convenience, and necessity, Congress certainly intended for the agency to be primarily responsible for determining 

the meaning of those general terms. It would be a fundamental 

shift if H.R. 4768 were understood to forbid reviewing courts from 

deferring to agency determinations of that or similar statutory language. 

It has also been suggested that H.R. 4768 would have the salutary effect of introducing strict construction of delegations of authority to agencies, and that this would be positive. There are reasons, however, to be cautious on both of these scores. 

First, merely instituting de novo review of agency interpretations 

of statutes would not necessarily mean that such delegations would 

be construed narrowly. There are many traditional methods of statutory construction that point toward broad constructions of statutes, including delegations of authority to agencies. Second, although there are circumstances in which, as a policy matter, it is 

appropriate to read delegations of authority narrowly, sometimes 

Congress intends agencies to have broad authority to address the 

social problems within its jurisdiction. 
23 

*Note: Supplemental material submitted by Mr. Beermann is not reprinted in this record but 

is on file with the Committee, and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=104928 

For example, narrowly construing agency delegations regarding 

communicable diseases or chemical contamination could have serious social negative—negative social effects. Before Chevron, traditional legal doctrine was by and large successful at distinguishing 

those situations in which broad interpretation of agency authority 

is more appropriate than narrow interpretation. 

Also, while I share Chief Justice Roberts’ concern that agencies 

should not have free rein to determine their own jurisdiction, I am 

afraid that it would be virtually impossible to craft statutory language that would distinguish jurisdictional from nonjurisdictional 

matters of statutory interpretation. So, although I agree that H.R. 

4768 is a laudable effort to dispel some of the negative consequences and confusion caused by the Chevron doctrine, I am 

afraid that it would disable reviewing courts from taking into account the views of an administering agency on questions of statutory interpretation that would aid in advancing Congress’s intent. 

So in my prior testimony, I suggested language under which Congress could react to all the problems of Chevron deference, without 

totally ruling out judicial deference to agency views. My suggestion 

would be, and I will repeat it here, to add language to APA 706 

as follows: 

‘‘Unless expressly required otherwise by statute, the reviewing 

court shall decide all questions of law de novo, with due regard for 

the views of the agency administering the statute, and any other 

agency involved in the decision-making process.’’ 

Under this standard, courts would apply the pre-APA Skidmore 

factors for determining how much to defer to agency interpretation, 

with flexibility to shape deference to meet modern concerns. 

In my view, Skidmore includes a sensible set of criteria for determining whether an agency interpretation is worthy of deference. In 

fact, the term ‘‘deference’’ may be 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 the 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 as likely to be correct as any contrary view advanced by the challengers on judicial review. 

So this reform, in my view, would restore to Congress the ultimate decision to determine how much deference there should be to 

agency legal decisions, and that is of course where such authority 

belongs. Thank you. 

[The prepared statement of Mr. Beermann follows:*] 
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Mr. MARINO. Thank you. Mr. Clark? 

TESTIMONY OF JEFFREY BOSSERT CLARK, SR., 

PARTNER, KIRKLAND & ELLIS LLP 

Mr. CLARK. Thank you, Chairman Marino, Ranking Member 

Johnson, and distinguished Members of the Committee, and 

thank—is it not on? There we go. Apologies. 

Thank you, Chairman Marino and Ranking Member Johnson and 

Members of the Committee, for the opportunity to appear before 

you today to speak about the ‘‘Separation of Powers Restoration Act 

of 2016.’’ It is important that the title that you gave to this legislation—it indicates, you know, where you are coming from, which I 

agree with. 

You know, the separation of powers was an idea crystallized by 

the French thinker Montesquieu, and the Founders knew a good 

idea when they saw one, and they embedded that idea into the 

structure of the constitution and the difference between articles I, 

II, and III. 

The Chevron doctrine is entirely foreign to that classical conception of the Constitution, and I would submit to you that there is 

zero evidence that the Congress that adopted the APA, intended 

that to occur, intended such massive delegations or intended to violate the separation of powers. And so I agree with Professor Duffy 

that what your Act is doing is really restoring not just the separation of powers, but the original meaning of the APA which, in any 

event, even if there were ambiguity, is something that should be 

interpreted consistent with the Constitution, or to avoid separation 

of powers concerns. 

The Chevron doctrine was never squared with the separation of 

powers, which makes it a defective decision on its own, and there 

is a lot of talk about Chevron being a case about expertise, but I 

would submit to you that it is a very curious decision if that is 

what it is. It talks about expertise, but the test that it adopts has 

‘‘expertise’’ nowhere to be found in it. 

The first step of the Chevron two-step is to look at the text of 

the statute, and the second step is, once again, to look at the text 

of the statute in terms of whether the agency has produced a reasonable construction of it. There is no portion of the Chevron test 

that has expertise built into it, so to defend the Chevron decision 

on expertise grounds, it seems to me, makes little sense and is 

something that, if it is being supported on that ground, it must be 

really supported because of results that it produces that those who 

favor those results like. 

In practice—and this is a perspective I can help to bring to you 

as being a practitioner, as being someone who served in the government—I can tell you that, you know—and I set it out in my analysis—there was a particular compromise that animated Chevron. I 

think that the extent to which that compromise was ever really adhered to, it has broken down. The approach that I see—and I 

think, to be fair, I saw it not just in this Administration, but I also 

saw it to some extent in the Bush administration—I saw approaching the statute with a particular idea in mind about what public 

policy in some area should be. It did not look first to the statute 
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to see what instructions you, as Members of Congress, had given 

the executive branch in a particular area. 

It instead looked at those constraints as inconveniences to be 

dealt with, essentially, and so various smart lawyers are sicced on 

the problem of, ‘‘How do we get this through the Chevron two-step? 

How do we secure deference?’’ And from that perspective, Chevron, 

I think, has been a failed experiment as well. 

There has been a lot of talk about Sidmore deference as well, and 

I would caution you, and disagree with those who say that Sidmore 

deference should be the substitute, Chevron should be wiped off the 

map, adopt Sidmore. My first question about is Sidmore is, what 

work is it really doing? It is essentially urging courts to take seriously the reasons that agencies have given. That is, you know, 

number one, what courts already do when they read briefs in the 

Supreme Court from the Solicitor General or from the Justice Department in cases. 

And in fact, the agency already has an immense institutional advantage because it gets to pre-brief those issues by writing the decision, and also, given administrative law waiver doctrines that 

have risen up, it gets a preview of all of those who object to the 

role as well, and gets to write the reasons in light of those comments and objections that have been filed or evidence that has 

come out in the adjudicative process. 

And my other objection to Sidmore is I think it is entirely indeterminate. It is not rule-like. It would produce whatever outcome 

the judges who are applying it would see fit to apply. 

So, I applaud the Subcommittee and Congress for—and the drafter of the legislation—for proposing this solution, which I think is 

elegant, and the last thing I would like to do is just offer to you 

a couple of second-bests in case there are other ways, you know, 

to skin the cat, as it were, of too much authority being given to the 

executive branch. 

Number one is it is widely acknowledged the Chevron doctrine’s 

implied delegation rationale is a legal fiction, and it is not something that Congress actually ever adopted itself. You could more 

narrowly target reversal of that. Also, I agree with the major questions doctrine enunciated in Brown & Williamson and King v. 

Burwell. That is also something that you could enshrine, even if 

you did not go as far as this legislation. 

And the last second-best I offer for you was to overrule Brand X 

and allow that in situations where the courts get to a question 

first, the agency should be bound; they should not be able to override judicial decisions. That is turning the separation of powers on 

its head. 

So, in closing, thank you for the opportunity to speak today, and 

the ultimate second-best is to write clear statutes, and to think 

about how the administrative agencies might try to circumvent 

them, and I would urge you always to keep that in mind when you 

pass new legislation. Thank you. 

[The prepared statement of Mr. Clark follows:] 
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Mr. MARINO. Thank you. Mr. Walke? 

TESTIMONY OF JOHN D. WALKE, ATTORNEY, CLEAN AIR 

DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL (NRDC) 

Mr. WALKE. Thank you, Chairman Marino, Ranking Member 

Johnson, and Members of the Subcommittee, for the opportunity to 

testify today. H.R. 4768, the ‘‘Separation of Powers Restoration Act 

of 2016,’’ is a deeply flawed and harmful bill that should not become law. 

My oral statement will address two basic topics: the 

antiregulatory legislative context that the bill now joins, and second, the bill’s numerous flaws and harmful consequences. These 

harms include impaired safeguards for public health, safety, the 

environment, financial markets, consumer rights, civil rights, and 

other social concerns that Federal regulatory statutes address. 

Additional harms include reduced political accountability, even 

more or overburdened courts, increased judicial forum shopping, 

greater uncertainty for regulated entities, and the waste of public 

resources and tax dollars. 

H.R. 4768 overthrows a longstanding and well-founded framework for judicial review. When acknowledging a regulatory process 

grounded in extensive administrative records, lengthy processes of 

public input and expert evaluations, that framework is ultimately 

carried out by officials appointed and confirmed by elected officials 

working under an elected president. H.R. 4768 substitutes for that 

system one in which the judiciary may nullify agencies’ reasonable 

regulations because one judge or a set of judges may prefer a different reasonable regulation or outcome. H.R. 4768 permits the judiciary to ignore administrative records and expertise, and to substitute its own inexpert views and limited information. 

In my testimony I quoted Justice Scalia’s opinion for the Supreme Court in City of Arlington where he said a de novo review 

standard practiced by 13 different courts of appeals would end up 

applying a totality-of-the-circumstances test, which Justice Scalia 

recognized not to be a test at all. He wrote that ‘‘this would simply 

be an invitation to ad hoc judgments that would render the binding 

effects of agency rules unpredictable, destroy the whole stabilizing 

purposes of the Chevron doctrine, and result in chaos.’’ 

To impose this kind of judicial fiat seems especially odd coming 

from Members of Congress who have repeatedly condemned supposed judicial overreach, and who constantly point out that the judiciary is unelected. It seems that the bill’s supporters are so intent 

on overturning our system for protecting the public through regulation that they are willing to empower a Federal judiciary that they 

have long denounced, even though Congress has the constitutional 

authority to change regulatory statutes, or to alter or reject individual regulations anytime it wishes. But Congress does not do 

that because the public will not support it. 

First, I would like to place H.R. 4768 in a broader legislative context. Since the start of the 112th Congress, there has been a wave 

of legislation embodying conservative political and corporate attacks on our modern system of Federal regulation and law enforcement by the executive branch. H.R. 4768 is the latest bill to join 

that wave. 
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During the 112th and 113th Congresses, there were 553 House 

votes by the majority to weaken environmental and health safeguards. These attacks failed. Having failed despite repeated attempts to weaken substantive organic laws they do not support, 

anti-regulatory politicians have retreated to broad attacks on the 

legal infrastructure backing Federal regulations. These include, for 

example, the REINS Act in its one-chamber legislative veto of regulations. 

Now H.R. 4768 joins that list. Members have promoted H.R. 

4768 by condemning a runaway administrative state that is out of 

control. Press releases promoting the bill have blasted numerous 

Obama administration regulations that the Members happen not to 

support. It is clear that support for the bill is motivated as much 

as by opposition to Federal safeguards, as it is by the tug-of-war 

over separations of power between the branches. Next, I would like 

to address some of the numerous harmful consequences the bill will 

produce. 

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 opposed to regulation hope will happen. 

Second, agencies will resort to simply repeating ambiguous and 

unclear statutory language verbatim in regulations. 

Third, for the same reasons regulations will contain far fewer details to assist State and local regulators with implementation. 

Fourth, uneven application of national laws would adversely impact the certainty with which businesses could operate across the 

country. Justice Scalia’s regulatory chaos would ensure. 

Agencies also would find it more difficult to adopt deregulatory 

rules that would be considered reasonable under today’s Chevron 

test. In my experience, it is true that starkly deregulatory 

rulemakings in prior Administrations have foundered more often at 

the first step of Chevron. That would continue to be the case were 

H.R. 4768 to become law. 

One suspects, therefore, that political and corporate opponents of 

regulation, and proponents of deregulation, have made a calculation that the bill would have disproportionate adverse impacts on 

regulations rather than deregulation. That is almost certainly true, 

and is a central reason why the bill should not become law. For all 

of these reasons, I urge Members of the Subcommittee to oppose 

this legislation. Thank you. 

[The prepared statement of Mr. Walke follows:] 
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Mr. MARINO. Thank you. Professor Levin? 

TESTIMONY OF RONALD M. LEVIN, WILLIAM R. ORTHWEIN 

DISTINGUISHED PROFESSOR OF LAW, WASHINGTON UNIVERSITY IN ST. LOUIS 

Mr. LEVIN. Chairman Marino, Ranking Member Johnson, and 

Members of the Subcommittee, thank you for the privilege of testifying at this hearing. My basic message today is to urge the Subcommittee to be cautious about trying to legislate on the challenging and subtle topic of the manner in which courts should review agency interpretations of statutes and rules. There has never 

been consensus about how to analyze these issues, either before or 

after the Chevron decision. 

For generations, courts have recognized that agencies have some 

inherent advantages in interpreting their enabling legislation. For 

example, agencies are more familiar with the complexities in the 

field than a generalist court can be; they have the responsibility to 

make the entire system work; and they are accountable to the political process in a way that life-tenured judges are not. At the 

same time, courts have always balanced their deference with a 

commitment to uphold the law if the agency’s interpretation is untenable or unreasonable. 

Now, Chevron changed the way in which courts speak about 

these problems, but it did not change the state of affairs very 

much. The presumption that ambiguity constitutes a delegation 

sounds odd, but we should never forget that it does not exist in isolation. Courts have always found plenty of ways to work within 

and around the two-step formula in order to exert control over 

agencies, and the net results are not very different from what you 

see in other contexts in which other verbal formulas are used. 

But still, courts and lawyers and judges have been struggling 

with the complexities of this problem continuously since well before 

the APA was adopted, and you are asking for trouble if you assume 

that Congress can clear up these problems by adding a handful of 

words to Section 706. Now, one of the issues on the table today illustrates how difficult this is. Should the amendment add only the 

words ‘‘de novo’’ to the APA, or should it also codify the Sidmore 

test? 

Well, if you do the former, you throw out two centuries of tradition in which courts have found agency interpretations important 

to their decision-making. That is what most people would understand the words ‘‘de novo’’ to imply. On the other hand, if you do 

the latter, you accomplish very little, because the Chevron and 

Skidmore tests tend to lead to about the same results, no matter 

what the wording of those tests seems to say, and you also will 

send mixed messages that would cause a great deal of confusion. 

You know, until I read Professor Beermann’s testimony, I 

thought everybody in administrative law agreed that the law of 

deference was disorderly and inconsistent prior to Chevron, during 

the Sidmore era. So I seriously doubt that trying to revive that regime by adding a few vague and conclusory phrases to Section 706 

would clear things up, and these days you cannot use legislative 

history to cure these ambiguities. 
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Well, where does this ill-conceived initiative to amend Section 

706 come from? Partly it comes from a desire to shrink government, but expanding judicial power to overturn agency actions is 

a poor way to accomplish this, because in the long run, liberal 

judges can use that power to overturn conservative actions just as 

easily as the other way around. 

The initiative also stems from a belief that this amendment 

would recapture the original meaning of the APA, and I find that 

notion remarkable. For 70 years, administrative lawyers have 

taken it for granted that Section 706 allows courts to make their 

own judgments of how to decide questions of law, with or without 

deference. So it is startling to hear claims that all these lawyers, 

over three generations, have been wrong about that point in hundreds of thousands of cases. 

And ironically, as every member of this panel knows, Section 706 

has been dramatically reinterpreted in multiple ways over the 

years to serve the changing needs of the administrative law system. Those changes range from the Hard-Look doctrine to the rulemaking record principle. So the sudden absorption with original intent seems quite baffling to me. 

Finally, this initiative grows out of the imaginative theory that 

deference to agency interpretations of their own regulations, socalled Auer deference, poses special dangers because it gives agencies too much incentive to write regulations vaguely. And yet, there 

is no evidence at all that agencies actually do act on that incentive. 

You know, people sometimes criticize Congress for relying too heavily on anecdotes, but nobody can say that here, because the critics 

of Auer deference have not even got an anecdote that supposedly 

supports their theory about its impact. Yet, on the basis of this 

completely speculative theory, they want to throw out a doctrine 

that courts have found helpful for at least three generations or 

more. To me, that attack on Auer is not credible. 

In conclusion, Mr. Chairman, the courts are actively engaged in 

trying to answering challenging questions about the right way to 

reconcile the advantages of deference with the need for judicial controls. They should be allowed to continue that process on their own 

and the legislature should stay out of it. That concludes my remarks, and I will be happy to answer any questions. 

[The prepared statement of Mr. Levin follows:] 
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Mr. MARINO. Thank you. Professor White? 

TESTIMONY OF ADAM J. WHITE, RESEARCH FELLOW, THE 

HOOVER INSTITUTION, ADJUNCT PROFESSOR, THE ANTONIN SCALIA LAW SCHOOL AT GEORGE MASON UNIVERSITY 

Mr. WHITE. Thank you. Chairman Marino, Ranking Member 

Johnson, Chairman Goodlatte, and other Members of the Subcommittee, thank you for inviting me today to testify on this crucially important bill. In the last 3 decades, Chevron deference’s 

greatest offender was Justice Antonin Scalia. He believed that 

Chevron struck a proper balance between judicial decision-making 

under the rule of law, and regulatory policy-making under constitutional principles of republican self-government. 

But in the last 5 years, Justice Scalia appeared to change his 

mind, or at least, he began to reconsider all of this. He hinted at 

this in opinions, and he is said to have expressed significant doubt 

about Chevron in private conversations, and one can surmise from 

Scalia’s original pro-Chevron writings, why he would have changed 

his mind. 

Perhaps he concluded that lower courts were not enforcing statutory limits rigorously enough. Perhaps he concluded that modern 

administrative agencies simply did not respect statutory limits anymore, and were leveraging Chevron to negate those statutory limits. Or perhaps he looked around at his colleagues at the Court and 

the lower courts, and seeing fewer or no people—none of his colleagues willing to defend Chevron as strongly as he had, he decided 

it was time for the law to move in a direction that better reflects 

the realities of the modern administrative state and the rule of law, 

which differ starkly from three decades ago. 

But whatever his reasons, Congress should follow his example, 

not just in reforming Chevron, but in recalibrating the law with an 

eye not just to courts, but also to agencies, and to Congress itself. 

As Justice Scalia recognized, this area of law affects the incentives 

motivating both Congress and the agencies. The APA should be 

amended to improve those incentives to promote better legislation 

and better administration. 

For Scalia, Chevron’s most important quality related not to the 

courts or to the agencies, but to Congress. Specifically, he believed 

that the law needed to set a stable, predictable principle for Congress to have in mind as it drafted, enacted, and amended Federal 

statutes. 

Indeed, Chevron is from the beginning rooted in a presumption 

about Congress, namely that Congress intended to allocate interpretive authority largely to the agencies rather than the courts. 

Whether that presumption was accurate or not, now is a good time 

for Congress to engage the issue directly. 

Whether it ultimately enacts the ‘‘Separation of Powers Restoration Act of 2016’’ in its current form, or amends the legislation to 

set other standards for judicial review, Congress needs to take the 

lead. Perhaps the most pressing constitutional debate of our time 

is that of the proper relationship between Congress, the courts, and 

the administrative state. It affects everything from financial and 

environmental law to regulation of the Internet, and increasingly 

to regulatory burdens on religious liberty. 
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Thank you for grappling with this issue, and thank you for inviting me to testify today. 

[The prepared statement of Mr. White follows:] 
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Mr. MARINO. Thank you. The Chair now recognizes Chairman of 

the full Committee, Chairman Goodlatte, for his 5 minutes of questioning. 

Mr. GOODLATTE. Thank you very much, Mr. Chairman. Professor 

Levin, I will start with you. I will pick up where you left off. Congress should not meddle with this jockeying that is going on between the judiciary and the regulatory bureaucracy in terms of how 

the courts should decide what deference to give them to how they 

interpret the regulations. 

But, I mean, this is the very core of why Justice Scalia was after 

the fact questioning the merits of the decision that he was a part 

of, and that is why would Congress not want to assert its legislative powers when what we are seeing more and more—we do not 

need anecdotal evidence, we can just look at the statistics of the 

rising number of regulations that are written each year, and particularly the number of regulations that come out based upon old 

laws, laws written 20, 30, 40 years ago where the bureaucracy 

comes back and says, ‘‘You know what? 

We think that law is out of date now. We will just retool our regulations,’’ does not have to go back to Congress at all for Congress 

to write a new law. All that has to happen is for us to rewrite this 

regulation. The courts will look at it, and the courts will say, ‘‘Well, 

you know what, if that is what the bureaucracy thinks that regulation means, then we should give deference to that.’’ So I very much 

disagree with that assessment, and I would be happy to give you 

an opportunity to respond. 

Mr. LEVIN. Thank you for the chance to respond to that. First, 

I do want to dissociate myself from Mr. White’s claim that Justice 

Scalia was rejecting Chevron. Whatever he said in private conversations, in his public pronouncements in the City of Arlington 

case in 2013, he strongly reaffirmed it, challenged the dissent for 

taking it on. In his Michigan decision shortly before his death, 

he—— 

Mr. GOODLATTE. Well, let’s get to the core of my point, which is 

what is the role of the Congress if the regulatory bureaucracy 

never has to come back here? When they see a need for a change 

in the law, they just change it themselves. 

Mr. LEVIN. Well, Mr. Chairman, as you may know, I have not 

been a fan of the Committee’s regulatory reform effort. 

Mr. GOODLATTE. I do not care whether you are a fan or not. 

Reply to my question. 

Mr. LEVIN. But what I am saying is Congress cannot effectively 

deal with the scope of review in two or three words, because it creates enormous complexities. It is just a few words. There would be 

endless debates about what it means. I am not saying it is beyond 

your province. I am just saying you cannot effectively do it. 

Mr. GOODLATTE. But what do we do when a regulatory bureaucracy says, ‘‘You know what, we are going to reinterpret this decades-old law and write new regulations because we think those are 

more pertinent to the situation we are trying today?’’ 

Mr. LEVIN. I think you should rewrite the laws to say what you 

want them to mean. 

Mr. GOODLATTE. Sure. But that is this Congress compared to a 

Congress of 40 years ago. If we cannot get it back here, and they 
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can bypass the Congress by writing regulations that they want to 

write—and for us to change that, we have to have it passed 

through the House, have to have it passed through the Senate 

where they have archaic rules requiring a 60-vote majority, and 

then we have to withstand a presidential veto if the President so 

chooses, whereas the bureaucrat—all they have to do is rewrite 

regulations on laws that were written long ago, and in no way contemplated the new uses that they are imputing to those old laws. 

What do we do about that? 

Mr. LEVIN. Well, I think you have mechanisms of oversight. But 

I think you have to recognize that when you give agencies authority to act, then they exercise that authority and they have the legal 

right to act in that authority. 

Mr. GOODLATTE. So what is wrong with telling the courts ‘‘you 

look at the law yourselves; do not give deference to one side or the 

other in court case?’’ 

Mr. LEVIN. If Congress tells the agency to use discretion, the 

court would be defying the statute if it did not allow the agency 

to use the discretion. 

Mr. GOODLATTE. I do not think many statutes overtly say, ‘‘Use 

discretion.’’ I think what we do is we do not fill in all the details. 

We expect them to do so within the black-letter law that is in front 

of them. And when they do not do that and then the courts look 

at those regulations, I think the courts are well within their authority to make their own decision rather than give deference to 

the bureaucracy, because you are just simply—both the courts and 

the Congress are then transferring power to the executive branch 

that we should not. 

Mr. LEVIN. Sometimes what we call deference is simply recognizing that they used legally delegated authority that the court 

may not second-guess, and that is often considered a question of 

law, and if you pass a statute saying the court shall not allow the 

agency to use that discretion, which this statute appears to do—— 

Mr. GOODLATTE. Mr. Duffy, would you like to jump in here? 

Mr. DUFFY. I certainly agree that—he just made a point that 

Jack Beermann made in his testimony, which is that a lot of times, 

the practice is not really deference. In Chevron itself—and this is 

actually exactly what you said, that sometimes Congress writes a 

framework, and expects the administrative agency to put in reasonable rules. That actually what was happening in Chevron, and I 

was just looking back at my article that dealt with this some years 

ago. 

The Solicitor General appearing before the court in Chevron itself 

did not come up with some newfangled deference test. Instead, they 

began their legal argument with quoting the rulemaking power of 

the agency in full, which is what this Congress gave to the agency. 

And the basic point of my testimony, I think, and also, I think, 

Professor Beermann’s testimony, is that this legislation would force 

the agencies to justify their authority on the basis of statutory law. 

And that is, I think, the core of what is at stake here and I very 

much believe that Congress does have something to say about this. 

The entire APA, which is something that all of us law professors 

teach in administrative law and have taught for decades, that is 

Congress’ view about how agencies should be structured. I think 
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that is perfectly appropriate for representative democracy to have 

the greatest deliberative body in that democracy think about how 

power should be allocated. So I strongly disagree with the idea that 

Congress should not have anything to do with it. That is the very 

statute that I teach through a course called ‘‘administrative law.’’ 

I think that your legislation is perfect to try to force the courts to 

go back and say, ‘‘What we are really looking for is to find administrative—to find agency authority if they have it.’’ 

Mr. GOODLATTE. Thank you. I agree. Thank you, Mr. Chairman. 

I yield back. 

Mr. MARINO. The Chair recognizes the Ranking Member, Mr. 

Johnson. 

Mr. JOHNSON. Thank you. Gosh, we are talking about regulatory 

reform, judicial deference to agency rulemaking, restoring, as you 

put it, Professor Duffy, restoring the traditional role of courts to determine what the law is. When has there ever been a time when 

there has not been judicial deference to agency rulemaking? 

Mr. DUFFY. If that is a question to me, I think that—— 

Mr. JOHNSON. It is. 

Mr. DUFFY. I think that the answer is that even today, for example, with the patent system there is no deference to the Patent Office’s view of what the law is, and that is a good example of why 

the reasoning of Chevron does not even hold up in modern doctrine. 

The Patent Office is highly expert. They are not even an independent agency, they are in the Department of Commerce. It is a 

very complicated statute that has vague words in it, and yet the 

courts have always—and I am not just talking about for 20 years 

or 30 years, I am talking about for hundreds—for over 100 years, 

the courts have determined the meaning of those statutory words 

‘‘de novo.’’ 

Mr. JOHNSON. Well, Professor Levin, would you respond to that, 

whether or not the—in the situation of the Patent Office, de novo 

review. 

Mr. LEVIN. Well, I think Professor Duffy is more the expert on 

the patents system than me. I do know that there is a specialized 

court—the Federal circuit—that passes on patent cases, and so 

Congress has specifically set an expert tribunal where you would 

expect to have more intrusive judicial review than elsewhere. But 

I would say generally the norm is deference, and has been throughout our history. 

Mr. JOHNSON. So, when the Congress decides that it wants to 

clarify by statute a rule that has been interpreted and placed in 

effect by Federal agency, a rule that has been promulgated, and 

the Congress decides that it wants to clarify that area of the law 

by statute, it always has the ability to do so. Is that not correct? 

Mr. LEVIN. It can revise the substance of the law, if that is what 

your question is, and that is true. The Chairman did point out that 

it is hard to get such a law passed, but it is within the power of 

Congress to do it. 

Mr. JOHNSON. And that is due to, basically, legislative ossification. We talk about regulatory or rulemaking ossification, but we 

have had legislative ossification around here for about 5 years or 

so, and I get—— 
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Mr. LEVIN. That is because of the legislative ossification of the 

past 5 years plus the inherent nature of the constitutional system 

with bicameralism and presentment. 

Mr. JOHNSON. Which is a good thing when it works. 

Mr. LEVIN. Right. 

Mr. JOHNSON. If there is gridlock and it does not work, then we 

do not get anything done and we continue to ossify our legislation 

which then impacts what Federal agencies would do to try to bring 

a rule up to modern standards and practical realities of the day. 

Do you contend, Professor Duffy, that Federal judges are politically accountable and should undertake the construction of rulemaking with their awesome power and their lifetime power? Are 

they—— 

Mr. DUFFY. I do not contend that Federal judges are politically 

accountable. The Framers of our Constitution made the Federal judiciary very independent by giving them life tenure. 

Mr. JOHNSON. So is it not consistent then that the Federal courts 

would—or that there would be judicial deference to agency rulemaking? 

Mr. DUFFY. No, I do not think so. I think that the crucial question is what does Congress want? Now, if Congress wants an agency to have a lot of power, it can give an agency rulemaking power 

and that will be a lot of power. You do not need deference to understand—— 

Mr. JOHNSON. Every agency has rulemaking power. 

Mr. DUFFY. If the agency has rulemaking power, I still do not 

think you need deference. I think you just need to say that the 

agency has power to promulgate reasonable rules as to—— 

Mr. JOHNSON. Mr. Walke, what would your response be? 

Mr. WALKE. My response to much of this talk is that I think 

Americans are actually more concerned about the harms to the real 

world that would be unleashed and imposed by this bill. The press 

release is touting this bill—identify a laundry list of regulations 

and safeguards that Members happen not to support but do not 

muster the votes under the Congressional Review Act to overturn, 

and that is what Americans care about. And Marbury v. Madison 

and the like is very interesting, but this bill would create more 

harms and impose them on Americans. 

Mr. JOHNSON. Because it would hurt the ability of our Federal 

Government to protect the health, safety, and welfare of the people? 

Mr. WALKE. That is correct. The supporters of the bill are touting 

the fact that it would overturn more regulations than are overturned today. 

Mr. JOHNSON. Thank you, and I yield back. 

Mr. MARINO. The Chair now recognizes the gentleman from 

Texas, Congressman Ratcliffe. 

Mr. RATCLIFFE. Thank you, Chairman Marino. I want to thank 

the witnesses for being here today. You know, the reason I drafted 

this legislation is because if you talk to everyday Americans, as I 

do, particularly small business owners, you hear a consistent message, and that is that our regulatory system is broken when we 

have got unelected bureaucrats taking ambiguously written laws 

and issuing regulations that vastly overstate their power. 
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And, you know, I have not found myself in agreement with Chief 

Justice Roberts often recently, but even he agrees with me on this 

issue. 

As the Chairman pointed out, just a few years ago he wrote, ‘‘The 

administrative state wields vast power and touches almost every 

aspect of daily life. The Framers could hardly have envisioned today’s vast and varied Federal bureaucracy and the authority administrative agencies now hold over our economic, social, and political activities.’’ 

The practice of courts deferring to agencies’ expansive interpretation of their power as directed under Chevron has created a serious 

problem with our regulatory system, and it is one that really has 

eroded our constitutional systems of checks and balances. And as 

you will hear me say frequently as we move through this process, 

this is not a partisan issue, or at least it should not be. 

This is not about Republicans versus Democrats, it is about article I versus article II. It is about respecting constitutional lanes of 

authority. This is not so much about executive overreach as it is 

about legislative under-reach. Congress is supposed to make laws, 

not unelected bureaucrats in the executive branch. 

And so I would urge my colleagues, my colleagues across the 

aisle, Republicans and Democrats should support this as a solution 

to a problem that all Americans, Republicans and Democrats, want 

to see fixed. 

And, Professor Duffy, I agree with you. This situation should 

never have occurred in the first place. The legislative history of the 

Administrative Procedures Act resulted in the explicit agreement 

amongst the lawmakers that there should be no deference on issues 

of law, and that the reviewing courts should decide all relevant 

questions of law and interpret constitutional and statutory provisions. 

I think the legislative history here is very clear, and in drafting 

H.R. 4768, my goal was to restore court review of agency interpretation as intended under the Administrative Procedures Act, and to 

restore the proper role of the judicial branch under the constitution 

as enumerated in Marbury v. Madison. And I think that this bill 

accomplishes that, and I know that a majority of you here agree 

with me, at least in part. 

Professor Duffy, I want to start with you. I want you to speculate 

with me for a minute. If the bill were to be enacted with the stylistic technical corrections that you offer, how do you think this 

would impact the regulatory process? 

Specifically, I want to know—how do you think it would impact 

rulemaking, and in turn, how would the rulemaking impact litigation? Because I know Professor Levin here has indicated that he 

thinks that litigation would increase, whereas I think from your 

testimony you agree with me that in fact it would be reduced. So 

if you would address those for me. 

Mr. DUFFY. Yes. I think, as I said in my written testimony, that 

increasingly there is an enormous amount of litigation around 

Chevron, which is completely collateral to the basic question of 

whether the agency has authority under the statutory law to do 

what it wants to do. 
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So instead of a brief focusing on that central issue, which is 

about what the law written by this Congress intended for the agency to do—and some of the provisions that the agency can rely on, 

of course, are rulemaking powers which give the agency quite a bit 

of power—but instead of focusing on that central issue and focusing 

on the law, we have an enormous set of doctrines now about Chevron, when it does apply, when it does not apply, and when there 

is just this giant hole through it which King v. Burwell created just 

last year that says, ‘‘Well, if it is really important, then it does not 

apply at all.’’ 

And already I have seen that the litigation at the D.C. circuit 

has increased on these issues. For example, in the case about the 

Internet, the FCC’s regulation of the internet, there is an entire 

collateral litigation about whether Chevron applies or not, that the 

court will have to go through before it gets to the basic question 

which I think is the central question, which is whether or not this 

Congress gave the requisite authority to the agency to write the 

rules. And so I think the legislation—I think it is great. 

I think it is very elegant, and it would simplify things and force 

courts to focus more on statutory law, which I think is a good 

thing. 

Mr. RATCLIFFE. Thank you, Professor. Professor White, I appreciated your comments about Justice Scalia and the shift there, and 

I will correct Professor Levin; it is more than just cocktail talk. In 

Perez v. Mortgage Bankers, Justice Scalia in the concurring judgment said, ‘‘The problem is bad enough and perhaps insoluble if 

Chevron is not to be uprooted.’’ 

But I wanted to ask you, Professor White, about—you referenced 

Professor Walker in your testimony and the fact that, in his findings, that 94 percent of rule drafters that he surveyed knew Chevron deference by name and 90 percent indicated they drafted rules 

with Chevron in mind. So, in your opinion, how do you think rulemaking with Chevron in mind changes the ultimate outcome of the 

rule? 

Mr. WHITE. Well, administrators writing rules with an eye to 

Chevron understand that they have more room to play within the 

scope of the statute, that they already have a thumb on their side 

of the scale in litigation that will ensue, that they can take more 

aggressive legal positions with less thorough reasoning than they 

might need to if they were put to a harder test on judicial review. 

Now, Professor Walker did not, if I recall correctly, did not get 

into the specific ramifications. He talked about the fact that there 

was broad awareness of Chevron at the agencies, so I do not want 

to say too much, but it does not take a Ph.D. in political science 

to see how the incentives are going to work under Chevron. It is 

what Justice Scalia recognized, for better and for worse, throughout his career. 

Mr. RATCLIFFE. Thank you. My time has expired, but Mr. Chairman, if I can just—I want to address something that Mr. Walke 

said, because you referred in both your written testimony and your 

oral testimony, saying that my legislation is ‘‘deeply flawed and 

harmful bill that should not become law,’’ which did not exactly 

hurt my feelings. 
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But as I read on in your testimony, when you compared it to a 

wave of legislation attacking, ‘‘modern system of Federal regulation 

akin to the REINS Act,’’ I know you intended that as a harsh criticism, but I have got to tell you, that is about as high praise and 

compliment as I could ask for. So while you did not intend that as 

an endorsement, I appreciate it, and I yield back. Thank you. 

Mr. MARINO. The Chair now recognizes the gentleman from California, Congressman Issa. 

Mr. ISSA. Thank you. And, Professor Duffy, I am going to follow 

up because you made a good point and it got sort of cast away a 

little bit by Professor Levin. The fed circuit was set up to review, 

and they do review somewhat de novo, even that de novo review 

by the district courts, and it was because the decisions coming out 

of the district courts sometimes, or often, were going all the way 

to the Supreme Court. 

So the Special Appellate exists only because of the importance of 

not clogging the Supreme Court. Is that not true? That is basically 

why the fed circuit exists for purposes of patents. 

Mr. DUFFY. Well, the Federal circuit was created for a variety of 

reasons that are complex, and I want to make it clear that the absence of deference long predated the Federal circuit. 

Mr. ISSA. Exactly, and it is interesting; the Federal circuit does 

not show a lot of deference toward the district court decisions. But 

I want to get one thing quickly in the record. Markman, which is 

a recent Supreme Court ruling back in—well, not recent anymore. 

I have been here 15 years; it predated my congressional time. 

But the decision in the Markman case that, in fact, the judge was 

to rule on the meaning of the patent, not—and did not have to 

rely—could rely on the source documents and the record, the wrapper, if you will, and did not have to rely on any conclusion that either the patent holder or even the PTO reached. Is that not true? 

Mr. DUFFY. Well, the Court did say that the job of determining 

the meaning of the patent was for the courts alone, and that certainly is true. In that particular case, they did not have before it 

an agency construction of the patent, so they did not, I think, address the relationship between the courts and the agency in that 

case, but one would think that, at least on issues of law, that there 

would be—of pure law—that there would be no deference. 

Mr. ISSA. You know, there is a number of cases in the FCC and 

their theory that they have authority that they did not have for the 

first 20 or so years of the internet, that suddenly they believe they 

have, or the Federal Trade Commission that has decided that cyber 

security over personal identifiable information, meaning hackers 

getting into your site, they have authority. These forms of overreach are not the same ones we are talking about often, because 

they are not about rulemaking, they are about seizing authority, 

are they not? 

Mr. DUFFY. Well, they do create—they do seize this authority 

usually through their rulemaking authority, though I guess the 

Federal Trade Commission might do it through a variety of other 

ways as well. 

Mr. ISSA. Okay. So, for all of us here on this side of the dais, 

would you say that there is—and this is not—does not specifically 

go to this legislation—but that, at the time the Congresses passes 
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a law and the first set of rules are being created, clean air, clean 

water, et cetera, that there is a—and I will let others opine on 

this—there tends to be a set of rules that often resemble what Congress intended, and that it is the continued and unfettered rulemaking over generations that often create the ability for an agency 

to take something never intended in the law, and simply create a 

rule because some new problem existed, a problem not envisioned 

in the law, but also not envisioned to be handed with that law to 

the regulators. Is that kind of a fair statement about the effect of 

time? 

Mr. DUFFY. Well, I think the effect of time is interesting because, 

again, my overall overarching theme is that the courts and the 

agencies should look to the Congress to figure out what Congress— 

what kind of power Congress wanted to give the agencies. 

Mr. ISSA. And that is a moment in time not adjusted for the time 

20 years later in which they are making a new rule, is what I was 

saying. 

Mr. DUFFY. One thing I think is interesting is some agencies 

have a super-rulemaking power that expressly allows them to modify statutory law, so rulemaking powers exist on a continuum. And 

if Congress wants to give an agency broad rulemaking authority, 

even as some agencies have like—in certain areas the FCC has this 

power; in certain areas—— 

Mr. ISSA. Or the Securities Exchange Commission. There are a 

number of them. 

Mr. DUFFY. You can give that power to the agencies. So I again 

think that it depends on what the Congress wants. If Congress 

wants to give very broad rulemaking power, it is within their authority. 

Mr. ISSA. Again, I am going to follow up just with a sort of a last 

question, because we are out of time. Congress has obviously not 

intended to have new laws created decades and decades after without a review, but Congress also did not—often did not put in a stop 

on rulemaking or, in fact, a sunset on an agency if not reauthorized. Are those not two of the elements that would not impact, if 

you will, Professors Levin and Walke, your statement that somehow we are all going to be hurt? 

Because the basic concept of reauthorizing rulemaking and/or reauthorizing agencies and thus their rulemaking would not be a 

great burden for the Congress, but ultimately might rein in this 

question of what is happening decades later without action. Mr. 

Clark? 

Mr. CLARK. I agree with that, Congressman Issa, very much. 

Mr. ISSA. So, even though it is not in the bill, would you all agree 

that those are elements in legislative activity that we should consider when making laws, notwithstanding your disagreement on 

other parts? Professor? 

Mr. LEVIN. Is this question should you have a sunset provision 

for rules to be periodically reauthorized? That has not worked out 

very—— 

Mr. ISSA. Or, in fact, a new rule is to be proposed. In other 

words, the authority—an agency under a given law relying on that 

law with no intervening activity, let’s say 5 or 10 years, you must 

either reauthorize the act or reauthorize the continued rulemaking, 
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for example. And my reason for it is simple: It does appear, having 

looked at your testimony, having looked at how Chevron is often 

used against ancient rulings of Congress and modern dilemmas, do 

we not—in fact, part of taking back our responsibility could or 

should be to set a limit? 

I pass a new law, the Affordable Care Act. You get X amount of 

years to write legislation and you do not get to come back to us— 

or you must come back to us either for reauthorization of the Act, 

or reauthorization of rulemaking. Otherwise, the fact is how long 

do we let you make law after we pass one? And I think I am going 

to have to call it quits here. Any final comments? 

Mr. WALKE. My fear, in light of recent years of Congress, was 

that it would result in kind of a default nullification of laws 

and—— 

Mr. ISSA. It would not be nullification of laws. It would be no 

new laws. Anyone else on the other side of that one want to weigh 

in? 

Mr. BEERMANN. I just want to point out without going too deeply 

into it that the sort of activity you are talking about is viewed 

much more skeptically applying the Sidmore factors than it has 

been under the Chevron factors in that if a statute that was passed 

long ago suddenly gets radically reinterpreted the courts tend to be 

skeptical about that, whereas under Chevron, as long as the statute 

is ambiguous or silent on the issue, the courts would defer. 

Mr. ISSA. Thank you. Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. The Chair recognizes Mr. Johnson. 

Mr. JOHNSON. Mr. Chairman, I ask that the statement of the 

Ranking Member be submitted for the record without objection. 

Mr. MARINO. So ordered. 

[The prepared statement of Mr. Conyers follows:] 
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Mr. MARINO. Gentlemen, we are going to go vote. I am going to 

forego our asking questions because I do not want to keep you here. 

I would love to come back because I would have you all to myself 

for the rest of the night, but I will not do that to you. 

So this concludes today’s hearing. Thanks to all the witnesses for 

attending. Any Member and all Members will have 5 legislative 

days to submit additional written questions for the witnesses or additional material for the record. The hearing is adjourned. 

[Whereupon, at 2:23 p.m., the Subcommittee adjourned subject to 

the call of the Chair.] 

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