59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–622 

SEPARATION OF POWERS RESTORATION ACT OF 2016 

JUNE 14, 2016.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4768] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4768) to amend title 5, United States Code, with respect to 

the judicial review of agency interpretations of statutory and regulatory provisions, having considered the same, reports favorably 

thereon with amendments and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 11 

Committee Consideration ........................................................................................ 11 

Committee Votes ...................................................................................................... 11 

Committee Oversight Findings ............................................................................... 17 

New Budget Authority and Tax Expenditures ...................................................... 17 

Congressional Budget Office Cost Estimate .......................................................... 17 

Duplication of Federal Programs ............................................................................ 18 

Disclosure of Directed Rule Makings ..................................................................... 19 

Performance Goals and Objectives ......................................................................... 19 

Advisory on Earmarks ............................................................................................. 19 

Section-by-Section Analysis .................................................................................... 19 

Changes in Existing Law Made by the Bill, as Reported ..................................... 19 

Dissenting Views ..................................................................................................... 20 


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The Amendment 

The amendments are as follows: 

Strike all that follows after the enacting clause, and insert the 

following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Separation of Powers Restoration Act of 2016’’. 

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

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

(1) by striking ‘‘To the extent necessary’’ and inserting ‘‘(a) To the extent necessary’’; 

(2) by striking ‘‘decide all relevant questions of law, interpret constitutional 

and statutory provisions, and’’; 

(3) by inserting after ‘‘of the terms of an agency action’’ the following ‘‘and 

decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action 

for judicial review of agency action authorized under any provision of law. No 

law may exempt any such civil action from the application of this section except 

by specific reference to this section’’; and 

(4) by striking ‘‘The reviewing court shall—’’ and inserting the following: 

‘‘(b) The reviewing court shall—’’. 

Amend the title so as to read: 

A bill to amend title 5, United States Code, to clarify the nature 

of judicial review of agency interpretations of statutory and regulatory provisions. 

Purpose and Summary 

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

‘‘SOPRA of 2016,’’ amends the Administrative Procedure Act to 

overturn the so-called Chevron and Auer doctrines of judicial deference to agency interpretations of statutory and regulatory provisions. 

Background and Need for the Legislation 

I. A BRIEF HISTORY OF THE CHEVRON DOCTRINE

The Chevron doctrine, named for the case in which it was originally conceived, Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, 467 U.S. 837 (1984), is the centerpiece of the Judicial 

Branch’s modern jurisprudence concerning the propriety of judicial 

deference to Federal agencies’ statutory interpretations. Under this 

doctrine, a court reviewing an agency’s interpretation of a statute 

it administers must first determine, using traditional canons of 

statutory construction, whether the statute speaks clearly to the 

question the agency has addressed. See 467 U.S. at 842–43. If so, 

the court must follow Congress’ expressed intent. Id. If, however, 

the statute does not reflect a clear congressional intent—i.e., it is 

‘‘silent or ambiguous’’ on the question at hand—the court is to defer 

to the agency’s interpretation, provided that it is within the ‘‘permissible’’ range of available statutory interpretations. Id. at 843– 

844. The Chevron doctrine displaced the Supreme Court’s prior rubric for whether and how to defer to administrative agencies, in 

which perhaps the foremost precedent was Skidmore v. Swift & 

Co., 323 U.S. 124, 140 (1944), in which the Court articulated an approach commonly referred to as Skidmore deference: 


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1See, e.g., Lawson, Gary and Kam, Stephen, Making Law out of Nothing at All: The Origins 

of the Chevron Doctrine (Selected Works, 2012) at 6–10 (available at http://works.bepress.com/ 

gary_lawson/1). 

We consider that the rulings, interpretations, and opinions 

of the Administrator under this Act, while not controlling 

upon the courts by reason of their authority, do constitute 

a body of experience and informed judgment to which 

courts and litigants may properly resort for guidance. The 

weight of such a judgment in a particular case will depend 

upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power 

to persuade, if lacking power to control. 

Not all of the judiciary’s decisions within the pre-Chevron rubric, 

however, were consistent, which led to confusion in the law.1

Over the years, rather than resolve confusion, the Chevron doctrine and its admixture of primacy in deciding ‘‘what the law is’’— 

in some cases, primacy for the Judicial Branch, in others, primacy 

for the Executive Branch—has generated increasing confusion and 

concern in the courts, Congress, the legal bar, and legal academia. 

Numerous Supreme Court and appeals court decisions in the decades since Chevron have striven to evolve or elucidate the doctrine, 

sometimes cabining its use, sometimes not. A sampling of such decisions from the Supreme Court, for example, includes the following: 

• Christensen v. Harris County, 529 U.S. 576, 587 (2000), in 

which the Court held that, although Chevron deference applies to review of agency interpretations issued in promulgating a regulation, such deference is not required during review of agency interpretations issued through less formal 

means, such as in an opinion letter or a post hoc legal brief; 

• United States v. Mead Corp., 533 U.S. 218 (2001), in which 

the Court held that the degree to which application of the 

Chevron doctrine is appropriate depends on whether a statute contains a delegation of lawmaking authority to an agency (the so-called ‘‘Chevron Step Zero’’ question); 

• Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

545 U.S. 967 (2005), in which the Court suggested that deference to an agency’s statutory interpretation might be required, even if a court had previously interpreted the same 

statute differently; 

• United States v. Home Concrete & Supply, LLC, 132 S. Ct. 

1836 (2012), in which the Court, by plurality opinion, ruled 

in contrast that an agency’s statutory interpretation did not 

command deference, in light of a contrary, prior interpretation by the Court; 

• City of Arlington v. FCC, 533 S. Ct. 1863 (2013), in which 

the Court held that Chevron deference must be applied in review of an agency’s interpretation of the statutory terms that 

define the agency’s jurisdictional limits, an issue that can 

sorely tempt an agency’s willingness to interpret a statute 

most faithfully to Congress’ intent; and, most recently, 


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• King v. Burwell, 135 S. Ct. 2480, 2489 (2015), in which the 

Court held that, while Chevron deference generally remains 

applicable in review of agencies’ statutory interpretations, it 

does not provide the appropriate interpretive framework if 

there is no express delegation of lawmaking authority to the 

agency on a question of ‘‘deep economic and political significance.’’ 

This complex case law, of which the foregoing decisions are just 

examples, has created a complex and evolving framework for review of agencies’ statutory interpretations. At one and the same 

time, this has broadly increased the power of Federal administrative agencies, by ceding them authority to determine the metes and 

bounds of their authority under the myriad of Federal statutes containing ambiguous provisions; sowed uncertainty for the public, 

regulated entities and even Congress, since agencies remain free to 

change their choices from among ‘‘permissible’’ ways to interpret 

these statutory provisions; and, revealed a difficult intellectual 

struggle within the Judicial Branch through which that branch, 

even 30 years on from Chevron’s inception, continues to attempt to 

develop full and clear limits for the application of deference to 

agency interpretations. 

In short, although Chevron represented a watershed moment in 

allowing more deference to agencies than was permissible under 

Skidmore, the Court has been on a slippery slope ever since as it 

has struggled to define precisely when deference is appropriate and 

when it is not. 

II. CONSTITUTIONAL AND STATUTORY DEFICIENCIES IN THE CHEVRON

DOCTRINE

It has been posited that the confusion and difficulty spawned by 

Chevron ultimately stem from its lack of sound foundations in constitutional and statutory law. With respect to the Constitution, it 

has been suggested that the Chevron doctrine is inconsistent with 

the Supreme Court’s bedrock judicial review precedent, Marbury v. 

Madison, 5 U.S. 137, 177 (1803). In that case, Chief Justice Marshall, writing for a unanimous Court, resolved one of the most elemental questions of American constitutional law, writing in renowned words that ‘‘[i]t is emphatically the province and duty of 

the Judicial Department to say what the law is.’’ Chevron, of 

course, represents a quite different rule—notwithstanding 

Marbury, when a Federal agency interprets an ambiguous provision of a statute that it administers, it is actually the province of 

the Executive Branch to say what that law is, at least insofar as 

the agency chooses from within a range of ‘‘permissible’’ interpretations. 

Although the Court did not state as much when it decided Chevron, in the years since, the courts, particularly the U.S. Court of 

Appeals for the District of Columbia Circuit and the Supreme 

Court itself, have explained that the concept of Chevron deference 

rests on a judicial assumption that, in cases in which statutes are 

ambiguous, Congress has at least implicitly granted to the implementing administrative agency the authority to determine what 

the ambiguous terms mean, principally through regulation. See, 

e.g., Rettig v. Pension Benefit Guaranty Corp., 744 F.2d 133, 140– 


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41 (D.C. Cir. 1984). This view, however, is difficult, if not impossible, to square with the Framers’ intent in the Constitution to create a government of definite, limited, and separated powers. If, as 

Marbury holds, it is, under that separation of powers, the ‘‘province 

and duty of the Judicial Department to say what the law is,’’ it is 

fair to ask whether Congress can in any way delegate to the Executive Branch that power held by the Judicial Branch. Similarly, it 

is fair to ask whether the Judiciary itself possesses any constitutional means to delegate that power to the Executive Branch, even 

if it wanted to. The Judiciary possesses power, under Article III of 

the Constitution, to decide cases and controversies. It possesses no 

power, however, to legislate—the means needed (prototypically, if 

not exclusively, through a constitutional amendment), to delegate 

or reassign the power of one branch to another. 

With respect to statutory law, it has likewise been suggested that 

Chevron conflicts flatly with the express terms of the Administrative Procedure Act of 1946 (APA), commonly considered to be the 

‘‘constitution’’ of Federal administrative law. The APA authorizes 

Federal agencies to act with broad authority in numerous ways. 

With respect to judicial review of agency actions, however, the APA 

states unequivocally, in 5 U.S.C. § 706, that ‘‘the reviewing court 

shall decide all relevant questions of law [and] interpret constitutional and statutory provisions. . . .’’ 

The Supreme Court in Chevron did not discuss how, if at all, its 

rule authorizing deference to Executive Branch interpretation of 

statutory provisions could be squared with these express terms of 

the APA. Nor have courts adequately explained that matter since. 

What is more, it is unquestionably fair to ask how, if at all, the 

assumption underlying Chevron deference can be valid in light of 

the APA. That assumption is that Congress implicitly delegated to 

agencies authority to state what the ‘‘law’’ contained in ambiguous 

statutory provisions ‘‘is.’’ But ever since the APA’s enactment in 

1946, Congress has legislated all statutes authorizing agency regulatory action against the backdrop of its specific decision in the 

APA to assign to the Judicial Branch exclusive power to ‘‘decide all 

relevant questions of law,’’ including the power to ‘‘interpret statutory provisions.’’ 

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

BALANCES

The Chevron doctrine leaves administrative agencies relatively 

free in a wide range of circumstances to define the meaning of statutes they administer, and even their own jurisdictional limits. The 

courts’ Chevron jurisprudence thus ranks high in importance to the 

modern administrative state—perhaps second only to jurisprudence 

regarding delegation by Congress of legislative authority to the 

same agencies. 

That the Chevron doctrine is important to the administrative 

state does not mean, however, that it necessarily fosters good government. On the contrary, there is much reason to think that it 

does not. It empowers agencies to choose in changing ways which 

among alternative meanings is the meaning that the Federal Government will give a statute at any given time. This is thought by 

some to be a virtue allowing flexibility. By others, however, it is 


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2 325 U.S. at 413–14. 

thought to be a vice that leads to uncertainty and unnecessary, 

protracted litigation that unsettles the rule of law. Perhaps more 

importantly, the Chevron doctrine also realigns the incentives for 

each Branch of Federal Government. Under Chevron’s sway, rather 

than having a strong incentive to write statutes carefully and 

clearly to best express Congress’ intent, Congress has an incentive 

to write less careful statutes that poorly express its intent, secure 

in the knowledge that regulators and courts can and will paper 

over legislative insufficiencies and insulate legislators against accountability for inadequate work. Agencies, meanwhile, rather than 

have an incentive to interpret statutes as faithfully and rigorously 

as possible (the best way to assure that courts might ultimately uphold their actions) have an incentive to play fast and loose with 

their interpretations and play politics with their choices, so long as 

they stay within the ‘‘permissible’’ range of alternatives for interpreting vague statutory terms. Courts, finally, have an incentive to 

perform a less rigorous job of statutory construction themselves. 

They also have an incentive and a means to avoid the more 

confrontational work of declaring Congress’ work in statutory provisions void for vagueness or simply and clearly lacking in a delegation of authority to an agency—which contrasting results would 

leave the responsibility and accountability to fix poor statutes to 

the people’s elected representatives in Congress. 

Not surprisingly, then, the modern administrative state is characterized by poor and gauzy legislation in which gaps and ambiguities are too often left intentionally by Congress, to be filled by unaccountable agency officials, whose work in turn is facilitated by 

deference from unaccountable judges. This is not the system of 

‘‘ambition . . . made to counteract ambition’’ between the Branches 

envisioned by the Framers, a system intended to preserve liberty. 

The Federalist No. 51 (James Madison). This is instead a system 

of evasion of accountability, exploited by the unaccountable, and facilitated by the evasion of responsibility by the likewise unaccountable, all of which are threats to liberty. 

IV. A BRIEF HISTORY OF THE AUER DOCTRINE

The doctrine of judicial deference to agencies’ interpretations of 

ambiguities in their own regulations finds its roots in the Supreme 

Court’s decision in Bowles v. Seminole Rock & Sand Co., 325 U.S. 

410 (1945). In that case, the Court was called upon to interpret a 

wartime price control regulation issued by the Administrator of the 

Office of Price Administration. The Court justified its deference to 

the Administrator’s interpretation as follows: 

Since this involves an interpretation of an administrative 

regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the 

words used is in doubt. The intention of Congress or the 

principles of the Constitution in some situations may be 

relevant in the first instance in choosing between various 

constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight 

unless it is plainly erroneous or inconsistent with the regulation.’’ 2


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3 519 U.S. at 461 (citations omitted). 

4 Id. at 463. 5See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 615–16 (1996). 

Many years later, post-Chevron, the Court directly addressed and 

re-affirmed the holding of Seminole Rock in Auer v. Robbins, 519 

U.S. 452 (1997). Auer involved the interpretation of a Fair Labor 

Standards Act regulation promulgated by the Department of Labor. 

Citing Seminole Rock, the Court deferred to the Secretary of Labor’s interpretation, reasoning that, ‘‘[b]ecause the salary-basis test 

is a creature of the Secretary’s own regulations, his interpretation 

of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ’’ 3 The Court continued, 

‘‘[a] rule requiring the Secretary to construe his own regulations 

narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed 

by the statute.’’ 4

In the years since Auer, however, the doctrine of deference to 

agencies’ interpretations of their own regulations has come under 

increasing and justified criticism, much of it focusing on the perverse agency incentives and separation of powers concerns inherent 

in Auer. For example, as Justice Thomas wrote in dissent in the 

case of Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 

(1994), which involved the interpretation of Medicare regulations: 

Here, far from resolving ambiguity in the Medicare program statutes, the Secretary has merely replaced statutory 

ambiguity with regulatory ambiguity. It is perfectly understandable, of course, for an agency to issue vague regulations, because to do so maximizes agency power and allows 

the agency greater latitude to make law through adjudication rather than through the more cumbersome rulemaking process. Nonetheless, agency rules should be clear 

and definite so that affected parties will have adequate notice concerning the agency’s understanding of the law. 

Not long thereafter, a prominent commentator characterized the 

Auer doctrine as providing that: 

[W]henever an agency applies a regulation—whether to 

seek a civil penalty through an enforcement proceeding, to 

adjudicate a claim for Federal benefits, or even to determine the means of calculating a prisoner’s incarceration— 

the governing regulation means what the agency says it 

means unless the reviewing court can conclude that the 

agency is ‘‘plainly wrong,’’ [thereby] mak[ing] it easier for 

the agency simply to issue vague regulations and then put 

off difficult policy questions until the relatively less demanding implementation stage.5

Perhaps the most famous and pivotal critique of Auer deference 

was lodged by the late-Justice Scalia in his concurrence in Talk 

America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50 (2011). 

As Justice Scalia argued: 

[W]hile I have in the past uncritically accepted [Auer’s] 

rule, I have become increasingly doubtful of its validity. 

On the surface, it seems to be a natural corollary—indeed, 


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6 564 U.S. at 68–69. 

an a fortiori application—of the rule that we will defer to 

an agency’s interpretation of the statute it is charged with 

implementing, see Chevron U. S. A. v. Natural Resources 

Defense Council, Inc., 467 U. S. 837 (1984). But it is not. 

When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has 

no control over that implementation (except, of course, 

through further, more precise, legislation). The legislative 

and executive functions are not combined. But when an 

agency promulgates an imprecise rule, it leaves to itself 

the implementation of that rule, and thus the initial determination of the rule’s meaning. And though the adoption 

of a rule is an exercise of the executive rather than the 

legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of 

separation of powers to permit the person who promulgates a law to interpret it as well. ‘‘When the legislative 

and executive powers are united in the same person, or in 

the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or 

senate should enact tyrannical laws, to execute them in a 

tyrannical manner.’’ Montesquieu, Spirit of the Laws bk. 

XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 

1949). 

Deferring to an agency’s interpretation of a statute does 

not encourage Congress, out of a desire to expand its 

power, to enact vague statutes; the vagueness effectively 

cedes power to the Executive. By contrast, deferring to an 

agency’s interpretation of its own rule encourages the 

agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates 

the notice and predictability purposes of rulemaking, and 

promotes arbitrary government.6

Two terms later, in Decker v. Northwest Environmental Defense 

Center, 133 S.Ct. 1326, 1339–41 (2013), Justice Scalia was even 

more definitive in his criticism of Auer: 

For decades, and for no good reason, we have been giving 

agencies the authority to say what their rules mean, under 

the harmless-sounding banner of ‘‘defer[ring] to an agency’s interpretation of its own regulations.’’ . . . Respondent 

has asked us, if necessary, to ‘‘ ‘reconsider Auer.’ ’’ I believe 

that it is time to do so. . . . While the implication of an 

agency power to clarify the statute is reasonable enough, 

there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that 

would violate a fundamental principle of separation of 

powers—that the power to write a law and the power to 

interpret it cannot rest in the same hands. . . . Auer is 

not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. 


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Finally, in his last full term on the bench, Justice Scalia made 

plain his desire actually to overturn Auer, in his concurrence in 

Perez v. Mortgage Bankers’ Ass’n, 135 S.Ct. 1199, 1212–13 (2015): 

I am unaware of any . . . history justifying deference to 

agency interpretations of its own regulations. And there 

are weighty reasons to deny a lawgiver the power to write 

ambiguous laws and then be the judge of what the ambiguity means. See Decker v. Northwest Environmental Defense Center, 568 U. S. ___, ___–___, 133 S.Ct. 1326, 1339– 

1342, 185 L.Ed.2d 447 (2013) (SCALIA, J., concurring in 

part and dissenting in part) (slip op., at 1–7). I would 

therefore restore the balance originally struck by the APA 

with respect to an agency’s interpretation of its own regulations, not by rewriting the Act in order to make up for 

Auer, but by abandoning Auer and applying the Act as 

written. The agency is free to interpret its own regulations 

with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct. 

V. THE POTENTIAL FOR A LEGISLATIVE SOLUTION TO PROBLEMS

PRESENTED BY THE CHEVRON DOCTRINE. 

In some cases of questions regarding the standards for judicial 

decision-making, it is fair for Congress to consider whether to leave 

resolution of those matters to the Judicial Branch to work out on 

its own. The question of Chevron and Auer deference, however, is 

not the ordinary question. The Chevron and Auer doctrines appear 

inconsistent with Marbury and the separation of powers; the Judicial Branch for more than thirty years has revealed the difficulty 

it has faced in cleanly, clearly, simply, and definitively explicating 

whether, why, how, and specifically when it becomes the Executive 

Branch’s power to ‘‘determine what the law is,’’ not the courts’, 

under the Chevron doctrine; instability in the Auer doctrine has 

begun to emerge as well; the Chevron doctrine rests on a judicial 

assumption that Congress has decided to delegate such power in 

some instances to the Executive Branch, and that the Judicial 

Branch should afford comity to that decision; and, the express 

terms of the APA, the general backdrop for all relevant Federal legislation since 1946, specifically belie that assumption by the Judicial Branch. 

Accordingly, it is appropriate for Congress to overturn Chevron 

and Auer statutorily, rather than wait for the Court to address 

their numerous deficiencies. H.R. 4768, the ‘‘Separation of Powers 

Restoration Act of 2016,’’ accomplishes these goals by amending the 

APA’s relevant provision, 5 U.S.C. § 706, to insert a de novo review 

term to render it as explicit as possible that courts, not agencies, 

must decide all questions of law. The bill then applies that clarified 

standard explicitly to all questions of law concerning the interpretation of constitutional, statutory and regulatory provisions. By applying the de novo term to the interpretation of statutory provisions, the bill overturns Chevron. By applying the term to the interpretation of regulatory provisions, the bill overturns Auer. 

Terms of the amendment in the nature of a substitute adopted by 

the Committee guarantee that those results will extend not only to 


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7See Testimony of Prof. John F. Duffy, Legislative Hearing on H.R. 4768: ‘‘The Separation of 

Powers Restoration Act of 2016,’’ Subcommittee on Regulatory Reform, Commercial and Antitrust Law (May 17, 2016) at 8–9 (available at https://judiciary.house.gov/hearing/h-r-4768-separation-powers-restoration-act-2016/). 

cases reviewed under the APA’s judicial review chapter, ch. 7 of 

title 5, but also under the assorted ‘‘mini-APAs’’ present in the 

United States Code. 

Among issues discussed in the Committee’s record for this bill, 

including at the hearings discussed below, two matters bear further 

discussion. These are the questions of the potential for a reemergence of judicial policy activism following the bill’s enactment and 

the possibility of incorporating the Skidmore factors or a variation 

thereof into the bill. 

The Committee strongly disfavors judicial activism. Because the 

bill is limited to the courts’ review of pure questions of law, and 

because it represents a strong congressional reaction against sisterbranch activism that defies Congress’ true statutory intent—albeit 

executive branch activism, not judicial activism—the bill should be 

understood by the courts not to condone or license judicial activism. 

On the contrary, it should be understood as a strong rejection of activist abuse under the guise of statutory and regulatory interpretation, regardless of whether undertaken by the Article II or the Article III branch. Post-enactment, the Committee will exercise vigilant 

oversight to detect whether judicial activism emerges and stand 

ready to undertake additional legislation to respond to that mischief, if it arises. 

With regard to incorporation of the Skidmore factors, the Committee acknowledges that there is merit in the Skidmore decision’s 

emphasis that courts should consider the ‘‘thoroughness evident in 

[the agency’s] consideration,’’ the ‘‘validity of [the agency’s] reasoning,’’ and the agency-offered interpretation’s ‘‘consistency with 

earlier and later [agency] pronouncements.’’ Clearly, courts must 

not defer to agency interpretations on those grounds, but it will be 

helpful to the courts in the performance of their tasks if they are 

assisted by thorough, valid, and consistent agency interpretation 

rooted in the agency’s exercise of its expertise. But courts reviewing 

agency actions will necessarily be presented with the agency’s administrative record and the agency’s briefs and oral arguments. 

These will inherently demonstrate to the reviewing court the thoroughness evident in the agency’s consideration, the validity of the 

agency’s reasoning, and the consistency of the agency’s interpretation over time. Knowing that the courts must no longer defer to the 

agency, but must instead be persuaded in the course of de novo review of the best interpretation of a statute or regulation, the agency will already be provided by the bill with a strong incentive to 

bring to bear before the court the most thorough and thoroughly 

articulated agency consideration of the interpretive question, as 

well as the most valid and consistent reasoning. Thus, as was suggested by hearing testimony before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law, it is not necessary 

to incorporate the Skidmore factors into the text of the bill for the 

courts to be able to benefit from them.7 Accordingly, the Committee 

declined to incorporate any formulation of the Skidmore factors 

into the bill at this time. 


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Hearings 

On May 17, 2016, the Subcommittee on Regulatory Reform, Commercial and Antitrust Law conducted a legislative hearing on the 

topic of ‘‘H.R. 4678, the ‘Separation of Powers Restoration Act of 

2016.’ ’’ Testimony was received from: Professor John Duffy, University of Virginia School of Law; Professor Jack Beerman, Boston 

University School of Law; Jeffrey Bossert Clark, Esq., Partner, 

Kirkland & Ellis LLC and former Deputy Assistant Attorney General for the Environment and Natural Resources Division, U.S. Department of Justice; Adam J. White, Fellow, Hoover Institution and 

Adjunct Professor, Antonin Scalia School of Law at George Mason 

University; Professor Ronald M. Levin, Washington University 

School of Law; and, John D. Walke, Esq., Director, Clean Air 

Project, Climate & Clean Air Program. 

Before the bill’s introduction, on March 15, 2016, the Subcommittee held an oversight hearing on matters related to the bill. 

Witnesses at that hearing included: Professor Jonathan Turley, 

The George Washington University Law School; Professor Duffy; 

Professor George Shepherd, Emory University School of Law; Professor Beerman; Professor Richard Pierce, The George Washington 

University School of Law; and, Professor Emily Hammond, The 

George Washington University School of Law. 

Committee Consideration 

On June 8, 2016, the Committee met in open session and ordered 

the bill H.R. 4768 favorably reported, with an amendment, by a 

rollcall vote of 12 to 8, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

4768. 

1. Amendment #2, offered by Mr. Johnson. The Amendment 

would carve out of the bill agency actions based on statutes that 

expressly grant agency discretion. Defeated 5 to 10. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .....................................

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................

Mr. Issa (CA) .............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) .............................................................

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ...............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Gowdy (SC) .........................................................

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) .....................................................

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ............................................................ X 

Mr. Ratcliffe (TX) ....................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member .................

Mr. Nadler (NY) .........................................................

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ......................................................

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ......................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ........................................................

Mr. Cicilline (RI) ........................................................ X 

Mr. Peters (CA) ..........................................................

Total ............................................................. 5 10 

2. Amendment #3, offered by Mr. Cicilline. The Amendment 

would carve out of the bill consumer safety regulations from the 

Food and Drug Administration. Defeated 6 to 10. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .....................................

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................

Mr. Issa (CA) .............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) .............................................................

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ...............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) .........................................................


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) .....................................................

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ............................................................ X 

Mr. Ratcliffe (TX) ....................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) .........................................................

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ......................................................

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ......................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ........................................................

Mr. Cicilline (RI) ........................................................ X 

Mr. Peters (CA) ..........................................................

Total ............................................................. 6

3. Amendment #4, offered by Ms. Jackson Lee. The Amendment 

would carve out of the bill national security regulations from the 

Department of Homeland Security. Defeated 5 to 8. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .....................................

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................

Mr. Issa (CA) .............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) .............................................................

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ...............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) .........................................................

Mr. Labrador (ID) ......................................................


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................

Mr. DeSantis (FL) .....................................................

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ............................................................ X 

Mr. Ratcliffe (TX) ....................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) .........................................................

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ......................................................

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ......................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) .....................................................

Mr. Jeffries (NY) ........................................................

Mr. Cicilline (RI) ........................................................ X 

Mr. Peters (CA) ..........................................................

Total ............................................................. 5 8 

4. Amendment #5, offered by Mr. Conyers. The Amendment 

would carve out of the bill regulations on lead and copper in drinking water. Defeated 4 to 10. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .....................................

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) .............................................................

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ...............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) .........................................................

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) ..................................................


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Collins (GA) ........................................................

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ............................................................ X 

Mr. Ratcliffe (TX) ....................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) .........................................................

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .......................................................... X 

Mr. Johnson (GA) ......................................................

Mr. Pierluisi (PR) ......................................................

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ......................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) .....................................................

Mr. Jeffries (NY) ........................................................

Mr. Cicilline (RI) ........................................................ X 

Mr. Peters (CA) ..........................................................

Total ............................................................. 4 10 

5. Motion to table the appeal of the ruling of the Chair on the 

germaneness of Amendment #6, offered by Mr. Cicilline. The 

Amendment would insert a clarification that race, ethnicity, or national origin may not serve as a basis for judicial disqualification. 

Motion to Table the Appeal approved 12 to 6. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) .............................................................

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ...............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) .........................................................

Mr. Labrador (ID) ......................................................


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ............................................................ X 

Mr. Ratcliffe (TX) ....................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) .........................................................

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ......................................................

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ......................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ........................................................

Mr. Cicilline (RI) ........................................................ X 

Mr. Peters (CA) ..........................................................

Total ............................................................. 12 6 

6. Motion to report H.R. 4768 as amended favorably to the 

House of Representatives. Approved 12 to 8. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) .....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) .............................................................

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) ...............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) .........................................................

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) .................................................. X 

Mr. Collins (GA) ........................................................


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ROLLCALL NO. 6—Continued 

Ayes Nays Present 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ............................................................

Mr. Ratcliffe (TX) ....................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) .........................................................

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ......................................................

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ......................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ........................................................

Mr. Cicilline (RI) ........................................................ X 

Mr. Peters (CA) .......................................................... X 

Total ............................................................. 12 8 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 4768, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 


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U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, June 14, 2016. 

Hon. BOB GOODLATTE, CHAIRMAN, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4768, the ‘‘Separation of 

Powers Restoration Act of 2016.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Marin Burnett, who can 

be reached at 226–2860. 

Sincerely, 

KEITH HALL, DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

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

As ordered reported by the House Committee on the Judiciary 

on June 8, 2016. 

H.R. 4768 would authorize courts that review agency actions to 

decide all relevant questions of law, including the interpretation of 

constitutional and statutory provisions and rules, without deferring 

to previous legal determinations by the agency (de novo review). 

Under the legislation, the courts could overturn some agency decisions that they would have upheld under current law. Some of 

those decisions could affect the budget by overturning regulations 

that affect discretionary spending, direct spending, and revenues. 

However, CBO has no basis for estimating either the likelihood 

that such actions would be overturned or what the effects on the 

budget might be. 

Because enacting the legislation could affect direct spending and 

revenues, pay-as-you-go procedures apply. For example the legislation could affect the timing or content of rules that concern Federal 

entitlement programs or rules related to the collection of fees. CBO 

also cannot determine whether enacting H.R. 4768 would increase 

net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2027. 

H.R. 4768 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The CBO staff contact for this estimate is Marin Burnett. The estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

Duplication of Federal Programs 

No provision of H.R. 4768 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 


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Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 4768 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

§ 551. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 4768 clarifies 

the nature of judicial review of agency interpretations of statutory 

and regulatory provisions to preclude continued deference by courts 

to such agency interpretations. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 4768 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

The following discussion describes H.R. 4768 as reported by the 

Committee. 

Section 1. Short Title. 

Section 1 sets forth the short title of the bill as the ‘‘Separation 

of Powers Restoration Act of 2016.’’ 

Section 2. Judicial Review of Statutory and Regulatory Interpretations. 

Section 2 amends section 706 of title 5 to explicitly state that 

courts are to decide all relevant questions of law de novo, including 

all questions of the interpretation of constitutional, statutory, and 

regulatory provisions. 

Changes in Existing Law Made by the Bill, as Reported 

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 5, UNITED STATES CODE 

* * * * * * * 


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PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 7—JUDICIAL REVIEW 

* * * * * * * 

§ 706. Scope of review 

øTo the extent necessary¿ (a) To the extent necessary to decision and when presented, the reviewing court shall ødecide all relevant questions of law, interpret constitutional and statutory provisions, and¿ determine the meaning or applicability of the terms of 

an agency action and decide de novo all relevant questions of law, 

including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial 

review of agency action authorized under any provision of law. No 

law may exempt any such civil action from the application of this 

section except by specific reference to this section. øThe reviewing 

court shall—¿ 

(b) The reviewing court shall— 

(1) compel agency action unlawfully withheld or unreasonably delayed; and 

(2) hold unlawful and set aside agency action, findings, 

and conclusions found to be— 

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

(B) contrary to constitutional right, power, privilege, 

or immunity; 

(C) in excess of statutory jurisdiction, authority, or 

limitations, or short of statutory right; 

(D) without observance of procedure required by law; 

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by 

statute; or 

(F) unwarranted by the facts to the extent that the 

facts are subject to trial de novo by the reviewing court. 

In making the foregoing determinations, the court shall review the 

whole record or those parts of it cited by a party, and due account 

shall be taken of the rule of prejudicial error. 

Dissenting Views 

INTRODUCTION

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

would require a Federal court to review de novo agency rulemakings and statutory interpretations and thereby override the Supreme Court’s long-recognized principle of judicial deference to 

agencies’ statutory interpretations, which recognizes the value of 

agency expertise and political accountability in rulemaking. In effect, H.R. 4768 would empower a generalist court lacking the expertise, resources, and public input to nullify agency action solely 

on policy grounds. As a result of the heightened review standard 

imposed by the bill, the rulemaking process will become even more 


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1Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary from the Coalition for Sensible Safeguards (June 

8, 2016) (on file with Democratic staff of the H. Comm. on the Judiciary). Current members of 

the Coalition include: AFL-CIO; Alliance for Justice; American Association of University Professors; American Federation of State, County and Municipal Employees; American Federation of 

Teachers Americans for Financial Reform; American Lung Association; American Rivers; American Values Campaign; American Sustainable Business Council; BlueGreen Alliance; Campaign 

for Contract Agriculture Reform; Center for Effective Government; Center for Digital Democracy; Center for Food Safety; Center for Foodborne Illness Research & Prevention; Center for 

Independent Living; Center for Science in the Public Interest; Citizens for Sludge-Free Land; 

Clean Air Watch; Clean Water Network; Consortium for Citizens with Disabilities; Consumer 

Federation of America; Consumers Union; CounterCorp; Cumberland Center for Peace & Justice; Demos; Economic Policy Institute; Edmonds Institute; Environment America; Farmworker 

Justice; Free Press; Friends of the Earth; Green for All; Health Care for America Now; In the 

Public Interest; International Brotherhood of Teamsters; International Center for Technology 

Assessment; International Union, United Automobile, Aerospace & Agricultural Implement 

Workers of America (UAW); League of Conservation Voters; Los Angeles Alliance for a New 

Economy; Main Street Alliance; National Association of Consumer Advocates; National Center 

for Healthy Housing; National Consumers League; National Council for Occupational Safety and 

Health; National Employment Law Project; National Lawyers Guild, Louisville Chapter; National Women’s Health Network; National Women’s Law Center; Natural Resources Defense 

Council; Network for Environmental & Economic Responsibility of United Church of Christ; 

New Jersey Work Environment Council; New York Committee for Occupational Safety and 

Health; Oregon PeaceWorks; People for the American Way; Protect All Children’s Environment; 

Public Citizen; Reproductive Health Technologies Project; Safe Tables Our Priority; 

Sierra Club; Service Employees International Union; Southern Illinois Committee for Occupational Safety and Health; The Arc of the United States; The Partnership for Working Families; 

Trust for America’s Health; U.S. Chamber Watch; U.S. PIRG; Union of Concerned Scientists; 

Union Plus; United Food and Commercial Workers Union; United Steelworkers; Waterkeeper 

Alliance; and Worksafe. COALITION FOR SENSIBLE SAFEGUARDS—OUR MEMBERS, http:// 

sensiblesafeguards.org/our-members. 2Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary from Joel B. Eisen, Professor Law, University of 

Richmond School of Law, and Emily Hammond, Professor of Law, George Washington University Law School, et al. (June 8, 2016) (on file with Democratic staff of the H. Comm. on the 

Judiciary). 

costly and time-consuming because it would force agencies to adopt 

even more detailed factual records and explanations, which would 

further delay the promulgation of critical rules safeguarding public 

health, safety, and the environment. Furthermore, without any 

constraint on this review, courts may ignore the administrative 

record altogether, raising potential separation of powers concerns 

as courts substitute agencies’ expertise and congressionally delegated authority with their own inexpert views and substantive 

preferences. Lastly, H.R. 4768 is a dangerous solution to a non-existent problem. 

In recognition of these serious concerns, the Coalition for Sensible Safeguards—an alliance of more than 150 consumer, labor, research, faith, and other public interest groups—strongly opposes 

this legislation, explaining that it ‘‘will make our system of regulatory safeguards weaker by allowing for judicial activism at the 

expense of agency expertise and congressional authority, thereby 

resulting in unpredictable outcomes and regulatory uncertainty for 

all stakeholders.’’ 1 A group of leading administrative law scholars 

also oppose H.R. 4768, stating that it is motivated by misplaced objections to regulatory policy, rather than legitimate judicial review 

concerns, and that the bill presents separation of powers concerns 

and will generate unnecessary confusion.2

For these reasons and those discussed below, we respectfully dissent and urge our colleagues to oppose this seriously flawed bill. 


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3 5 U.S.C. §§ 551 et seq. (2016). 4 5 U.S.C. § 706 (2016). 

5Section 706 requires the court to: 

(1) compel agency action unlawfully withheld or unreasonably delayed; and 

(2) hold unlawful and set aside agency action, findings, and conclusions found to be— 

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law; 

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

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory 

right; 

(D) without observance of procedure required by law; 

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 

of this title or otherwise reviewed on the record of an agency hearing provided 

by statute; or 

(F) unwarranted by the facts to the extent that the facts are subject to trial de 

novo by the reviewing court. 

Id. 6 CURTIS W. COPELAND, CONG. RESEARCH SERV., RL 32240, The Federal Rulemaking Process: 

An Overview 1 (2005). 7The APA defines ‘‘rulemaking’’ as the ‘‘agency process for formulating, amending or repealing 

a rule.’’ 5 U.S.C. § 551(5) (2016). A ‘‘rule’’ is defined as ‘‘an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy 

or describing the organization, procedure, or practice requirements of an agency.’’ 5 U.S.C. 

§ 551(4) (2016). 8Letter from 84 administrative law academics to H. Judiciary Comm. Chair Bob Goodlatte 

(R-VA) and H. Judiciary Comm. Ranking Member John Conyers, Jr. (D-MI), 2 (Jan. 12, 2015) 

(on file with the H. Comm. on the Judiciary, Democratic staff). 

DESCRIPTION AND BACKGROUND

DESCRIPTION

Section 706 of the Administrative Procedure Act (APA)3 requires 

a Federal court, when necessary to decision and when presented, 

to ‘‘decide all relevant questions of law, interpret constitutional and 

statutory provisions, and determine the meaning or applicability of 

the terms of an agency action.’’ 4 Section 706, in turn, sets forth 

various criteria that the court must consider in determining whether such agency action should be held unlawful and set aside.5

H.R. 4768 amends section 706 to require the court to decide de 

novo all relevant questions of law, including the interpretation of 

constitutional and statutory provisions, and rules made by agencies. The bill also includes a supermandate ensuring that its provisions override all other laws, even those that prohibit judicial review. Specifically, it provides that ‘‘[n]o law may exempt any such 

civil action from the application of this section except by specific 

reference to this section.’’ 

BACKGROUND

I. OVERVIEW OF FEDERAL RULEMAKING

Federal regulations impact nearly every aspect of our lives and 

are ‘‘one of the basic tools of government used to implement public 

policy.’’ 6 Enacted in 1946, the Administrative Procedure Act (APA) 

establishes the minimum rulemaking and formal adjudication requirements for all administrative agencies.7 The APA’s baseline 

procedural requirements serve to maintain a balance between 

agency flexibility and the requirements of due process. As 84 leading administrative law academics have observed, ‘‘The APA has 

served for nearly 70 years as a kind of Constitution for administrative agencies and the affected public—flexible enough to accommodate the variety of agencies operating under it and the changes in 

modern life.’’ 8 In addition to the APA, numerous other procedural 

and analytical requirements have been imposed on the rulemaking 


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9 Examples of legislative mandates include the Unfunded Mandates Reform Act, Pub. L. No. 

104–4 (1995); the Regulatory Flexibility Act, Pub. L. No. 96–354, 94 Stat. 1164, 1169 (1980); 

and the Congressional Review Act, Pub. L. No. 104–121 (1996). In addition, both Republican 

and Democratic Presidents have issued executive orders mandating additional procedural and 

analytical requirements for Federal rulemakings. See, e.g., Exec. Ord. 12,866, 58 Fed. Reg. 190 

(Sept. 30, 1993) (outlining requirements for cost-benefit analysis and review by the Office of Information and Regulatory Affairs for significant rules issued by executive branch agencies). 10 U.S. GOV’T ACCOUNTABILITY OFF., GAO–07–791, REEXAMINING REGULATIONS: OPPORTUNITIES

EXIST TO IMPROVE EFFECTIVENESS AND TRANSPARENCY OF RETROSPECTIVE REVIEWS 1 (2007). 11See, e.g., Richard J. Pierce, Jr., Rulemaking Ossification Is Real: A Response to Testing the 

Ossification Thesis, 80 GEO. WASH. L. REV. 1493 (2012); H.R. 348, the ‘‘Responsibly And Professionally Invigorating Development Act of 2015’’ (RAPID Act); H.R. 712, the ‘‘Sunshine for Regulatory Decrees and Settlements Act of 2015’’; and, H.R. 1155, the ‘‘Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2015’’ (SCRUB Act): Hearing Before the 

Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. 1, 4–5 (2015) (statement of Amit Narang, Regulatory Policy Advocate, Public 

Citizen), http://judiciary.house.gov/_cache/files/cfc2a8c6-729e-4e77-9f9f-561f60f1c153/narangtestimony.pdf. 12 5 U.S.C. § 551(5) (2016). 13 5 U.S.C. § 553 (2016). Agencies may also choose or may be required by statute to use other 

rulemaking procedures, including formal rulemaking, negotiated rulemaking, and hybrid or expedited approaches, which generally tend to have greater procedural requirements and be subject to stricter judicial review than section 553 notice-and-comment rulemaking. Though rarely 

used, agencies must sometimes follow the APA’s formal rulemaking procedures ‘‘when rules are 

required by statute to be made on the record after opportunity for an agency hearing.’’ 5 U.S.C. 

§ 553(c) (2016). 14 5 U.S.C. § 553(b), (c) (2016). 15 5 U.S.C. § 553(b) (2016). 16 5 U.S.C. § 553(c) (2016). 17 Id. 

process by Congress and various presidents.9 These requirements 

focus ‘‘predominately on agencies’ development of new rules,’’ according to the Government Accountability Office (GAO).10

In general, proposed rules go through an extensive vetting process that many believe is already too ossified and burdened by 

delay.11 The APA defines ‘‘rulemaking’’ as the ‘‘agency process for 

formulating, amending or repealing a rule.’’ 12 The process for informal rulemaking, commonly referred to as notice-and-comment rulemaking, is outlined in section 553 of the APA, and is the process 

that agencies follow for promulgating the rules in the overwhelming majority of cases.13

In the informal notice-and-comment rulemaking process, agencies are required to provide the public with adequate notice of a 

proposed rule and a meaningful opportunity to comment on the 

rule’s content.14 A notice is ‘‘adequate’’ if an agency publishes a notice of proposed rulemaking in the Federal Register and the notice 

contains the time, place, and nature of public rulemaking proceedings, reference to the legal authority under which the rule is 

proposed, and either the terms or substance of the proposed rule 

or a description of the subjects and issues involved.15 With respect 

to the required public comment period, the agency must provide 

the public with the opportunity to submit written ‘‘data, views, or 

arguments.’’ 16 There is no minimum time period during which an 

agency must accept comments, but courts reviewing an agency’s 

compliance with this APA requirement inquire as to whether the 

opportunity to comment was ‘‘adequate,’’ which may inform how 

long the comment period should be for a given rule. 

After the comment period closes, the agency must consider the 

public’s comments and incorporate into the adopted rule a ‘‘concise 

general statement’’ of the ‘‘basis and purpose’’ of the final rule.17

From this general statement, the public should be able to obtain 

a general idea of the purpose of and basic justification for the rule. 

The final rule and the general statement must be published in the 


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18 5 U.S.C. § 553(d) (2016). The APA exempts from all of its informal rulemaking requirements 

rules relating to certain subject matter areas. These rules include those governing: (1) ‘‘a military or foreign affairs function of the United States;’’ (2) ‘‘a matter relating to agency management or personnel;’’ or (3) a matter relating to ‘‘public property, loans, grants, benefits, or contracts.’’ 5 U.S.C. § 553(a) (2016). The APA also exempts from the notice-and comment requirements rules that are issued for ‘‘good cause,’’ i.e., where an agency finds that ‘‘notice and public 

procedure thereon are impracticable, unnecessary, or contrary to the public interest.’’ 5 U.S.C. 

§ 553(b) (2016). 19 5 U.S.C. § 702 (2016). 20 5 U.S.C. § 706(2) (A)–(F) (2016). 21 Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 667 (1986). 22 5 U.S.C. § 701 (2016). 23See Webster v. Doe, 486 U.S. 592 (1988); Oestereich v. Selective Service System, 393 U.S. 

233 (1968). 24Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 103 (1995). 25 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 26 Id. 

Federal Register not less than 30 days before the rule’s effective 

date.18

II. JUDICIAL DEFERENCE TO AGENCY STATUTORY INTERPRETATIONS

Section 702 of the APA subjects agency rulemaking to judicial review, thereby providing a statutory mechanism for relief for ‘‘any 

person suffering legal wrong because of agency action, or adversely 

affected or aggrieved by agency action within the meaning of a relevant statute.’’ 19 Section 706(2) of the APA requires a reviewing 

court to set aside as unlawful agency action, findings, and conclusions when found to be: 

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

(B) contrary to constitutional right, power, privilege, or 

immunity; 

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

(D) without observance of procedure required by law; 

(E) unsupported by substantial evidence in [a formal rulemaking] or otherwise reviewed on the record of an 

agency hearing provided by statute; or 

(F) unwarranted by the facts to the extent that the facts 

are subject to trial de novo by the reviewing court.20

There is a strong presumption that Congress intends judicial review of administrative action to be available,21 with two exceptions: 

when statutes specifically preclude judicial review and when Congress provides agencies with statutory discretion.22 A court, however, always has the authority to review the constitutionality of 

agency action, including those actions that are otherwise 

unreviewable.23

While the APA requires reviewing courts to decide all relevant 

questions of law, interpret statutes, and determine the meaning of 

agency action, it is well-established that courts ‘‘must give substantial deference to an agency’s interpretation of its own regulations.’’ 24 A reviewing court may only invalidate an agency rule or 

formal adjudication when it violates a constitutional provision or 

when the agency’s rule exceeds its statutory authority to issue the 

rule as clearly expressed by Congress.25 Thus, courts cannot simply 

strike down a rule based on policy grounds.26 Indeed, the Supreme 


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27Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 

(1983); Judulang v. Holder, 132 S. Ct. 476, 483 (2011). 28 Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–83 

(2005) (‘‘Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting 

agency construction.’’); Auer v. Robbins, 519 U.S. 452, 461 (1997) (‘‘Because the salary-basis test 

is a creature of the Secretary’s own regulations, his interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ’’). 29 Judulang v. Holder, 132 S. Ct. 476, 483–84 (2011). 30 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (internal 

quotes omitted). 31 Examining the Proper Role of Judicial Review in the Federal Regulatory Process: Hearing 

Before the Subcomm. on Regulatory Affairs and Fed. Management of the S. Comm. on Homeland 

Security and Government Affairs, 114th Cong. 38 (2015) (statement of Prof. Ron Levin), https:// 

www.gpo.gov/fdsys/pkg/CHRG-114shrg94906/pdf/CHRG-114shrg94906.pdf. 32 But see Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. 

L. Rev. 597 (2009) (‘‘This structure artificially divides one inquiry into two steps. The single 

question is whether the agency’s construction is permissible as a matter of statutory interpretation; the two Chevron steps both ask this question, just in different ways.’’). 33 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (‘‘If a 

court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.’’). 34Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 57 (2011). 

Court has routinely observed that the scope of judicial review is 

narrow and ‘‘a court is not to substitute its judgment for that of 

the agency.’’ 27 This is true even where an agency changes its previous interpretation of a regulation following a change in Administration, so long as it provides adequate grounds for doing so.28

Nevertheless, courts retain an important role in determining 

whether an agency action is permissible, arbitrary, or capricious.29

The Supreme Court held in the seminal case on judicial deference, 

Chevron U.S.A., Inc. v. Natural Resources Defense Council, that 

courts must give ‘‘considerable weight’’ to an agency’s construction 

of a statute it administers.30 Professor Ron Levin, Professor of 

Law, Washington University in St. Louis, and Chair, Judicial Review Committee for the Administrative Conference of the United 

States, explains the rationale for this deference: 

The justification for Chevron deference rests in part on respect for congressional delegation. It recognizes that Congress often decides to entrust policymaking authority in 

certain areas; when it does so, and the agency acts within 

the scope of that delegation as the court understands it, a 

court is obliged to honor the legislature’s expectations by 

upholding a rational exercise of that authority even where 

the agency reaches a conclusion that the reviewing court 

would not have reached.31

Under Chevron, courts utilize a two-step process to determine 

whether an agency’s statutory interpretation is controlling.32

Under step one, a reviewing court must determine whether an 

agency’s interpretation of a statute is valid by applying the traditional tools of statutory interpretation. 33 Deference to an agency’s 

interpretation of an underlying statute is appropriate where Congress has generally delegated authority to the agency to ‘‘make 

rules carrying the force of law, and that the agency interpretation 

claiming deference was promulgated in the exercise of that authority.’’ 34 Courts assume that Congress intended to delegate such 

‘‘gap-filling’’ authority where a ‘‘rule sets forth important individual 

rights and duties, the agency focuses fully and directly upon the 

issue and uses full notice-and-comment procedures, and the resulting rule falls within the statutory grant of authority and is reasonVerDate Sep 11 2014 01:20 Jun 15, 2016 Jkt 059006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6601 E:\HR\OC\HR622.XXX HR622

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35Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). 36Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 57 (2011); Wells 

Fargo Bank, N.A. v. F.D.I.C., 310 F.3d 202, 205–06 (D.C.Cir.2002) (‘‘Because the judiciary functions as the final authority on issues of statutory construction, an agency is given no deference 

at all on the question whether a statute is ambiguous.’’). 37 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). 38 Id. at 842–43. 39 Judulang v. Holder, 132 S. Ct. 476, 483–84 (2011) citing Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (‘‘Normally, an agency rule would 

be arbitrary and capricious if the agency has relied on factors which Congress has not intended 

it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible 

that it could not be ascribed to a difference in view or the product of agency expertise.’’). 40 132 S. Ct. 476, 479 (2011). Justice Kagan explained that determining whether an action 

is arbitrary or capricious under the APA requires the same analysis as under Chevron step two, 

suggesting that both inquiries concern whether an agency interpretation is ‘‘arbitrary or capricious in substance. Id. at 484 n.7. 41Thomas O. McGarity, Some Thoughts on Deossifying the Rulemaking Process, 41 DUKE L.J. 1385, 1410 (1992) (‘‘[Courts] determine whether the agency applied the correct analytical methodology, applied the right criteria, considered the relevant factors, choose from among the available range of regulatory options, relied upon appropriate policies, and pointed to adequate support in the record for material empirical conclusions.’’). 42 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984); Sidney 

Shapiro & Elizabeth Fisher, Chevron and the Legitimacy of ‘‘Expert’’ Public Administration, 22 

WM. & MARY BILL RTS. J. 465, 468 (2013). 43See Christensen v. Harris County, 529 U.S. 576 (2000); United States v. Mead, 533 U.S. 

218 (2001); Barnhart v. Walton, 535 U.S. 212 (2002). 44See, e.g., Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006); Thomas W. Merrill 

& Kristin E. Hickman, Chevron’s Domain, 89 GEO. L.J. 833 (2001). 45 Id. 46 United States v. Mead Corp., 533 U.S. 218, 226–27 (2001) (‘‘We hold that administrative 

implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force 

of law, and that the agency interpretation claiming deference was promulgated in the exercise 

able.’’ 35 Where an agency acts clearly within the scope of a congressional delegation of authority, the inquiry ends.36

If, however, a court ‘‘determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute.’’ 37 Rather, Chevron step 

two requires that a reviewing court defer to any ‘‘permissible’’ interpretation of the law by an agency where a statute is silent or 

ambiguous.38 The Court has clarified that an agency’s statutory interpretation is permissible where it provides a reasoned explanation of its action, which includes ‘‘whether the decision was 

based on a consideration of the relevant factors and whether there 

has been a clear error of judgment.’’ 39 Writing for a unanimous 

majority in 2011, Justice Elena Kagan observed in Judulang v. 

Holder that when ‘‘an administrative agency sets policy, it must 

provide a reasoned explanation for its action,’’ noting that this requirement is ‘‘not a high bar, but it is an unwavering one.’’ 40 Also 

referred to as the ‘‘hard look’’ doctrine, this type of heightened review involves a thorough examination of the administrative record 

and the agency’s explanation of its statutory authority.41 Relevant 

factors in this analysis include the agency’s expertise in producing 

an administrative record, delegated authority by Congress, and the 

policy nature of the decision.42

Between 2000 and 2002, the Supreme Court issued a series of 

decisions further outlining whether courts must defer to agency’s 

expertise in rulemaking for nonlegislative rules.43 Sometimes referred to as Chevron step zero, this inquiry examines whether the 

principles of Chevron even apply to an agency action.44 Under 

these decisions, the Court has generally held that nonlegislative 

rules, which do not carry the force of law,45 do not qualify for Chevron deference.46 For these rules—which include opinion letters, polVerDate Sep 11 2014 01:20 Jun 15, 2016 Jkt 059006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR622.XXX HR622

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of that authority.’’); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (‘‘Interpretations 

such as those in opinion letters—like interpretations contained in policy statements, agency 

manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chev- ron-style deference.’’). 

47Skidmore v. Swift & Co., 323 U.S. 134 (1944). 48Separation of Powers Restoration Act of 2016: Hearing on H.R. 4768 Before the Subcomm. 

on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th 

Cong. (2016) [hereinafter ‘‘H.R. 4768 Hearing’’] (statement of Professor Ronald M. Levin, Washington University School of Law), https://judiciary.house.gov/wp-content/uploads/2016/05/LevinTestimony.pdf. 49Peter L. Strauss, Deference is Too Confusing—Let’s Call Them ‘‘Chevron Space’’ and 

‘‘Skidmore Weight,’’ 112 COLUM. L. REV. 1143, 1145 (2012). 50 ABA Sec. of Admin. L. & Reg. Prac., Comments on H.R. 3010, the Regulatory Accountability 

Act of 2011, 64 ADMIN. L. REV. 619, 667 (2012) (‘‘Debate on these principles continues, but the 

prevailing system works reasonably well, and no need for legislative intervention to revise these 

principles is apparent.’’); see Letter from Anna Shavers, Chair, ABA Section of Administrative 

Law and Regulatory Practice, to Sen. Tom Carper (D-DE) and Sen. Tom Coburn (R-OK) on S. 

1029, the Regulatory Accountability Act of 2013, at 17, http://www.americanbar.org/content/dam/ 

aba/administrative/administrative_law/s_1029_comments_dec_2014.authcheckdam.pdf (discussing reform of judicial deference to interpretations of rules); see Letter from 84 administrative 

law academics to H. Judiciary Comm. Chair Bob Goodlatte (R-VA) and H. Judiciary Comm. 

Ranking Member John Conyers, Jr. (D-MI), 2 (Jan. 12, 2015) (on file with the H. Comm. on 

the Judiciary, Democratic staff). 51 ABA Sec. of Admin. L. & Reg. Prac., Comments on H.R. 3010, the Regulatory Accountability 

Act of 2011, 64 ADMIN. L. REV. 619, 667 (2012) (‘‘Debate on these principles continues, but the 

prevailing system works reasonably well, and no need for legislative intervention to revise these 

principles is apparent.’’); see Letter from Anna Shavers, Chair, ABA Section of Administrative 

Law and Regulatory Practice, to Sen. Tom Carper (D-DE) and Sen. Tom Coburn (R-OK) on S. 

1029, the Regulatory Accountability Act of 2013, at 17, http://www.americanbar.org/content/dam/ 

aba/administrative/administrative_law/s_1029_comments_dec_2014.authcheckdam.pdf (discussing reform of judicial deference to interpretations of rules); see Letter from 84 administrative 

law academics to H. Judiciary Comm. Chair Bob Goodlatte (R-VA) and H. Judiciary Comm. 

Ranking Member John Conyers, Jr. (D-MI), 2 (Jan. 12, 2015) (on file with the H. Comm. on 

the Judiciary, Democratic staff). 

icy statements, and enforcement guidelines—deference principles 

first announced in Skidmore v. Swift & Co. 47 apply.48 Under 

Skidmore, a reviewing court gives some weight to the agency interpretation of the statute that it administers depending on the timing and consistency of the action under review.49

CONCERNS WITH H.R. 4768

I. H.R. 4768 WILL LEAD TO REGULATORY PARALYSIS AND THEREBY

DELAY THE IMPLEMENTATION OF CRITICAL REGULATORY SAFEGUARDS

Leading administrative law experts generally agree that abolishing judicial deference to agencies’ interpretations of their statutory authority would make the rulemaking process more costly and 

time-consuming.50 Heightened review would force agencies to adopt 

more detailed factual records and explanations, effectively imposing 

more procedural requirements on agency rulemaking, which is already burdened by procedural delays.51 Professor Richard Pierce of 

The George Washington University Law School explains: 

Through interpretation and application of sections 553 and 

706 of the APA, courts have transformed the simple, efficient notice and comment process into an extraordinarily 

lengthy, complicated, and expensive process that produces 

results acceptable to a reviewing court in less than half of 

all cases in which agencies use the process. In particular, 

the courts have completely rewritten the statutory requirement that an agency must incorporate in each rule a ‘‘concise general statement of its basis and purpose.’’ To have 

any realistic chance of upholding a major rule on judicial 

review, an agency’s statement of basis and purpose now 

must discuss in detail each of scores of policy disputes, 


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52 Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 

65 (1995). 53 Ronald M. Levin, Judicial Review and the Bumpers Amendment at 591 (1979) (Final Report 

to the Administrative Conference of the U.S.) [hereinafter ‘‘ACUS Report’’], https://www. 

acus.gov/sites/default/files/documents/Levin%20ACUS%20Bumpers%20report.pdf. 54 H.R. 4768’s de novo standard of review of agencies’ statutory interpretations is not a new 

proposal. Congress first considered various proposals that would have created an enhanced judicial review standard in the late 1970’s and early 1980’s. In 1975, Senator Dale Bumpers (DAR) first introduced legislation that would establish a de novo standard of review of agency action. In 1979, the Senate adopted this proposal as an amendment to an unrelated bill, passing 

by a 51 to 27 vote. Thereafter, Congress considered various other proposals that similarly required reviewing courts to ‘‘independently decide all relevant questions of law.’’ Similar to H.R. 

4768’s de novo standard of review, the heightened standard of review in these proposals would 

have required courts to independently decide all relevant questions of law, review agency determinations of jurisdiction and authority to determine whether they were based on statutory language or other evidence of legislative intent, not accord any presumption in favor of agency determinations of questions of law other than its jurisdiction and authority, and apply what was 

effectively a ‘‘substantial evidence’’ test for informal rulemaking and the arbitrary or capricious 

standard. Following waves of criticism, however, Congress ultimately rejected these proposals. 

See generally Ronald M. Levin, Review of ‘‘Jurisdictional’ Issues Under the Bumpers Amendment, 1983 DUKE L.J. 355, 367–68 (1983). 55 ACUS Report, supra note 53, at 590. 56 Id. 57 Id. at 591–92. 58 Id. at 592. 

data disputes, and alternatives to the rule adopted by the 

agency. Any data gap or any gap in the stated reasoning 

with respect to any issue can provide the predicate for judicial rejection of the rule on the basis that the agency violated its duty to engage in reasoned decisionmaking. Even 

after an agency has devoted many years and vast resources to a single rulemaking, it confronts a 50 percent 

risk that a reviewing court will hold the resulting rule invalid.52

The Administrative Conference of the United States (ACUS) has 

likewise observed that the consequence of heightened review would 

be a loss of certainty, efficiency, and fairness in the rulemaking 

process.53 In the context of its opposition to an earlier proposal to 

enact a de novo standard of review for agency action,54 ACUS 

noted that the ‘‘most obvious’’ concern of heightened review would 

be diminished rulemaking.55 The consequence of this decline in 

rulemaking would be severe for both the public and regulated entities in several regards.56 First, it would undermine transparency 

and certainty for regulated entities.57 Without the benefit of agency 

action, regulated entities are unaware of agency views. Furthermore, where agencies do issue rules, ‘‘profound uncertainty would 

of necessity prevail while court review proceedings ran their 

course.’’ 58 Second, heightened review would greatly increase regulatory complexity. The ACUS report explains: 

Regulations are normally issued because the agencies perceive a Congressional mandate to issue them; or because 

agency members feel a conscientious commitment to act as 

they do; or because of the demands of some outside group 

that expects to benefit from the new rules. These latter 

considerations ordinarily impinge on agencies as forcibly, 

or more forcibly, than any calculus about the chances of 

prevailing in the courts. In this environment of conflicting 

pressures, the agencies may respond to the Amendment 

not so much by promulgating narrower regulations as by 

conducting more complex rulemaking proceedings, holding 


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59 Id. at 595. 60MORTON ROSENBERG, CONG. RESEARCH SERV., THE FUTURE OF PUBLIC PARTICIPATION IN IN- FORMAL AGENCY RULEMAKING UNDER PENDING REGULATORY REFORM PROPOSALS, CONGRES- SIONAL RESEARCH SERVICE REPORT FOR CONGRESS 44 (1982). 61 Id. at 46. 62 Id. at 47. 63 Rosenberg, supra note 60, at 46–47. 64 Id. 65 Id. 66Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary from the Coalition for Sensible Safeguards (June 

8, 2016) (on file with Democratic staff of the H. Comm. on the Judiciary). 

more oral hearings, and generating lengthier records, in 

order to assure that the rule’s validity (can be) established 

by a preponderance of the evidence shown. These defensive 

measures can be expected to entail a good deal of overkill, 

for an agency’s assessment of the danger of reversal is always speculative, and the agency has a strong temptation 

to engage in what would, in retrospect, be seen as excessive precautions. Such an increase in the complexity of 

rulemaking activities would appear to be sharply contrary 

to the underlying purposes of the Amendment.59

The non-partisan Congressional Research Service (CRS) has 

similarly criticized heightened review of agencies’ statutory interpretations, stating that it ‘‘will cause delay, complexity, and uncertainty in the administrative process.60 In a report on legislation 

that is substantively comparable to H.R. 4768, CRS noted that 

heightened review would force agencies to dedicate significantly 

more resources in support of the administrative record in anticipation of review.61 In addition, CRS observed that ‘‘it is almost universally agreed’’ that the consequence of heightened review will be 

additional industry challenges to rules.62 Lastly, CRS expressed 

concerns that heightened review may skew the agency fact-finding 

process in favor of those with the resources to shape the agency 

record by making it more lengthy and costly.63 Enhanced judicial 

review could affect public participation in the rulemaking process 

in other ways, including how agency officials conduct proceedings 

in anticipation of review, as well as the increased judicial activism 

that the reform would spur, where individuals have little role in 

private litigation.64 Furthermore, parties that oppose a rule could 

create additional costs and delay in the rulemaking process by increasing the number of appeals of agency determinations.65

The practical effect of this regulatory paralysis will be even more 

delays for new rules that benefit the public’s health, safety, and security.66 John Walke, a senior counsel at the Natural Resources 

Defense Council (NRDC), testified at the legislative hearing on 

H.R. 4768 that the bill will result in significant regulatory delay 

and uncertainty: 

First, agencies will issue fewer regulations to carry out 

Federal laws and protect Americans. Many more congressional deadlines will be missed. I expect that is precisely 

what some members and corporate lobbyists opposed to 

regulation hope will happen. It is why they support this 

legislation. Second, agencies will resort to simply repeating 

ambiguous and unclear statutory language verbatim in 

regulations. They will do so in an attempt to insulate 

themselves from adverse judgments by judges conducting 


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67 H.R. 4768 Hearing, supra note 48, at 7 (statement of John D. Walke, Esq., Director, Clean 

Air Project, Climate & Clean Air Program, Natural Resource Defense Council), https:// 

judiciary.house.gov/wp-content/uploads/2016/05/Walke-Testimony.pdf. 68Tr. of Markup of H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016,’’ by the H. 

Comm. on the Judiciary, 114th Cong. 63 (June 8, 2016). 69 Id. 70 Id. at 64. 71 Id. at 73. 72 Id. at 32. 73 Id. at 34. 74 Id. 75 Id. at 46. 76 Id. at 47. 77 Id. at 49–50. 78 Id. at 62. 

de novo reviews of agency resolutions of statutory ambiguities, conflicts and gaps that are differently reasonable 

than the judge’s notion of what is reasonable.67

Agencies are tasked by Congress with protecting the public interest across a spectrum of areas. Few areas are more important to 

the health and welfare of society than clean drinking water and 

safe food. To illustrate this concern, Ranking Member John Conyers, Jr. (D-MI) offered an amendment that would have exempted 

from the bill rulemakings by the Environmental Protection Agency 

(EPA) pertaining to the regulation of lead and copper in drinking 

water.68 He explained that the amendment was necessary because 

‘‘it is critical that Americans have access to safe drinking water 

and that we do not hinder the ability of Federal agencies, such as 

the Environmental Protection Agency, to prevent future lead contamination events like the Flint water crisis.’’ 69 Ranking Member 

Conyers stated that ‘‘federal judges, who are constitutionally insulated from political accountability, should not have the power to 

second-guess the agency experts concerning the appropriateness of 

highly technical regulations crucial to protecting the health and 

safety of millions of Americans.’’ 70 Unfortunately, this amendment 

failed by a party-line vote of 4 to 10.71

To further underscore these concerns Representative David 

Cicilline (D-RI) offered an amendment to exempt from the bill 

rulemakings by the Food and Drug Administration (FDA) relating 

to consumer food safety.72 Speaking in support of his amendment, 

he stated that H.R. 4768 would ‘‘bring the agency rulemaking process to a halt, incentivizing judges to rewrite current regulations 

and introducing uncertainty into the effort to make new ones.’’ 73

The consequence of this delay and uncertainty, Representative 

Cicilline explained, would be to hinder the FDA’s ability to protect 

Americans from foodborne illness, which affects roughly 48 million 

people in the United States.74 This amendment also failed along 

party lines by a vote of 6 to 10.75

In a similar regard, Representative Sheila Jackson Lee (D-TX) offered an amendment that would have exempted from the bill rules 

issued by the Department of Homeland Security (DHS) pertaining 

to national security.76 She stated in support of her amendment 

that DHS is ‘‘the first line of defense in protecting the Nation and 

leading recovery efforts from all hazards and threats, which include 

everything from weapons of mass destruction to natural disasters.’’ 77 This amendment failed by a party-line vote of 5 to 8.78


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31 

79The Chevron Doctrine: Constitutional and Statutory Questions in Judicial Deference to Agencies: Hearing Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the 

H. Comm. on the Judiciary, 114th Cong. 4 (2016) (statement of Professor Richard Pierce, George 

Washington Law School) (‘‘Until late in the Nineteenth century, courts could not and did not 

review the vast majority of agency actions. The Supreme Court held that courts lacked the 

power to review exercises of executive branch discretion. A court could review an action taken 

by the executive branch (or a refusal to act) only in the rare case in which a statute compelled 

an agency to act in a particular manner. In that situation, the court was simply requiring the 

agency to take a non-discretionary ministerial action.’’) [hereinafter Chevron Hearing], https:// 

judiciary.house.gov/wp-content/uploads/2016/03/Pierce-Testimony-REVISED.pdf. 80 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). 

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

H.R. 4768 raises separation of powers concerns because it would 

increase the policymaking power of the Judicial Branch with respect to a broad range of highly technical yet politically sensitive 

regulatory matters. As the Supreme Court in Chevron observed, 

such policy making power should rest primarily in the hands of the 

Legislative and Executive Branches. H.R. 4768, if enacted into law, 

would undermine the political accountability enshrined in the Constitution by forcing Federal courts to abandon a legal standard of 

statutory interpretation that strikes a careful balance between the 

coordinate branches of government. Eliminating judicial deference 

may also incentivize judicial activism by allowing a reviewing court 

to substitute its policy preferences for those of the agency. As Professor Pierce notes, courts lacked explicit authority to review most 

agency rulemaking until the late Nineteenth century.79

The Supreme Court’s decision in Chevron demonstrates its concern with maintaining the balance of separation of powers, and 

that the Court feared giving judges too much control over policymaking if presented with a claim involving a question of whether 

an agency had improperly interpreted Congress’ delegation of statutory rulemaking authority. The Court emphatically makes this 

point: 

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in 

some cases, reconcile competing political interests, but not 

on the basis of the judges’ personal policy preferences. In 

contrast, an agency to which Congress has delegated policy-making responsibilities may, within the limits of that 

delegation, properly rely upon the incumbent Administration’s views of wise policy to inform its judgments. While 

agencies are not directly accountable to the people, the 

Chief Executive is, and it is entirely appropriate for this 

political branch of the Government to make such policy 

choices—resolving the competing interests which Congress 

itself either inadvertently did not resolve, or intentionally 

left to be resolved by the agency charged with the administration of the statute in light of everyday realities.80

In arriving at the deference doctrine articulated in Chevron, the 

Supreme Court acknowledged that Federal courts lacked the expertise to second-guess the agency rulemaking process behind the development of a complex and often highly technical rule or regulation. Rather, the court should overrule an agency’s interpretation 

only if it is so unreasonable in that it exceeds Congress’ delegation 

of rulemaking authority. The basis for the Court’s reasoning, as 

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81 Chevron Hearing, supra note 79, at 2 (written statement of Professor Emily Hammond, 

George Washington University Law School), https://judiciary.house.gov/wp-content/uploads/2016/ 

03/Hammond-Testimony-REVISED.pdf. 82 Chevron v. Nat. Res. Def. Council, 467 U.S. 837 at 865. 83 Id. 84 Id. at 866. 85 Chevron Hearing, supra note 79, at 2 (written statement of Professor Emily Hammond, 

George Washington University Law School), https://judiciary.house.gov/wp-content/uploads/2016/ 

03/Hammond-Testimony-REVISED.pdf. 86 Rosenberg, supra note 60, at 48–51. 

latory Reform, is that ‘‘[a]gencies have experience with the statutes 

they administer and the challenges that arise under the applicable 

regulatory regimes. Relative to the courts, agencies also have superior expertise, particularly with respect to complex scientific or 

technical matters.’’ 81 Importantly, the Court’s reasoning does not 

rest simply on the understanding that judges are generalists lacking the special scientific and technical knowledge or familiarity 

with the statutory authorities needed to evaluate certain agency 

rulemakings. It also reflects the Court’s view with respect to the 

proper role of the Judicial Branch in relation to the political 

branches. 

Although statutory interpretation resides within the Judicial 

Branch’s constitutional wheelhouse, the Chevron Court also recognized that judges ‘‘are not part of either political branch of government.’’ 82 And the Court expressed the concern that judges should 

not be put in the position of ‘‘reconciling competing political interests’’ based on ‘‘personal policy preferences.’’ 83 This is because the 

unelected judges of the Judicial Branch are insulated from the political process and would be unaccountable for any policy decisions 

they might make in any number of politically sensitive areas of the 

law. Deferring to an agency’s interpretation of a statute—if reasonable—when the claim is essentially over competing policy preferences is preferable in the Court’s eyes because the Executive 

Branch is politically accountable. As the Court stated: 

When a challenge to an agency construction of a statutory 

provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the 

challenge must fail. In such a case, Federal judges—who 

have no constituency—have a duty to respect legitimate 

policy choices made by those who do. The responsibilities 

for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones... 84

The Court’s decision in Chevron ‘‘is an exercise in judicial self-restraint: by deferring to agencies’ reasonable constructions rather 

than substituting their own judgment, the unelected courts avoid 

inserting their own policy preferences into administrative law.’’ 85

It adopted a legal standard that limited the judiciary to its traditional and constitutional role of interpreting the law while giving 

deference to policy decisions made by the political branches. 

H.R. 4768 would undermine the separation of powers by eliminating judicial deference to agency rulemaking. This would 

incentivize judicial activism by allowing a reviewing court to substitute its policy preferences for those of the agency.86 And rather 

than deferring to agencies’ substantive expertise, enhanced judicial 


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87 Id; Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 14 

(1983) (‘‘But whatever the logic of the Marbury argument or the wisdom of strong judicial control of administrative law-making, the Marshall court itself gave early sanction to deference 

principles.’’); Ronald M. Levin, Identifying Questions of Law in Administrative Law, 74 GEO. L.J. 

1, 18 (1985) (‘‘Marbury does not make clear whether the exercise of independent judicial judgment to keep agencies within statutory bounds is constitutionally indispensable.’’). 88 ACUS Report, supra note 53, at 576. 89 H.R. 4768 Hearing, supra note 48, at 8 (statement of Professor Ronald M. Levin, Washington University School of Law), https://judiciary.house.gov/wp-content/uploads/2016/05/LevinTestimony.pdf. 90 ACUS Report, supra note 53, at 568, 572. 91 Id. at 575. 92 Id. at 589. 

review would enable generalist courts to apply their policy preferences to the review of an agency rule, whether they do so consciously or not. More importantly, judges lack the political accountability of Executive Branch agencies.87

The Administrative Conference of the United States (ACUS),88

an independent Federal agency dedicated to improving the administrative process, has previously raised this concern in opposition 

to substantively similar legislation.89 In a report in support of its 

recommendation on judicial review, ACUS noted that a heightened 

standard of review may potentially apply far beyond questions of 

law to include questions of fact, policy, and procedure.90 This form 

of sweeping authority vested in one branch of government would 

represent, in ACUS’s view, ‘‘a fundamental overthrow of the existing allocation of power between judicial and executive branches,’’ 91

representing ‘‘so complete a departure from prevailing separationof powers principles that the student of administrative law would 

virtually be left without any point of reference from which to critique it.’’ 92 ACUS explains: 

In this situation, Congress has literally delegated a portion 

of its standard-setting power, and through that delegation 

Congress entrusts to the (agency), rather than to the 

courts, the primary responsibility for interpreting the statutory term. Such a situation exists when, for example, an 

administrative agency implements a statute by issuing 

rules that it believes will serve the public convenience, interest or necessity, or by setting rates that it deems just 

and reasonable, or by promulgating regulations to carry 

out the purposes of this statute. In any of these situations, 

the purposes of the underlying legislation would be undermined in a quite fundamental way if the regulations could 

be upheld only where the agency persuaded a reviewing 

court by a preponderance of the evidence that the regulation was ‘‘right.’’ The legal results of this approach can also 

be appraised in more pragmatic terms. Plenary judicial review of all regulations would clearly impair the effectiveness of the many substantive statutes that become the 

subjects of administrative rulemaking. It would lead to inferior regulation because courts simply do not have agencies’ constant involvement with administration of the various programs, let alone agencies’ technical sophistication. 

The APA standards of review aim at a balanced scheme 

whereby the detached perspective of judicial generalists 

complements the experience and knowledge of agency specialists. A system of review that vests judges with primary 


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93 Id. at 590. 94Separation of Powers Restoration Act of 2016: Hearing on H.R. 4768 Before the Subcomm. 

on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th 

Cong. 9 (2016) (written statement of Professor Ronald Levin). 

responsibility for both functions cannot be as successful. 

Whether or not Congress could effectively forbid court to 

rely on agency expertise in factual and policy areas, an effort to do so would be quite ill advised.93

Policymaking is more properly suited for the political branches, 

which are ultimately accountable to the people who are affected by 

such policies. As the Court in Chevron recognized, judges have no 

political constituency by constitutional design and there is no 

mechanism by which the public or the political branches could 

demonstrate disapproval of judicially determined policy. This is 

counter to the constitutional principles that animate the political 

branches, which are accountable to the public for policymaking decisions. 

Furthermore, tasking the Judicial Branch with policymaking 

functions could undermine its unique constitutional role as the interpreter of the law’s meaning. The legitimacy of the Judicial 

Branch rests upon the perception that it remain above the fray of 

politics. If enacted, H.R. 4768 would place judges in a position to 

routinely determine substantive policy on potentially politically 

sensitive issues and in a manner that goes beyond reconciling competing political interests present in some cases. Court decisions 

could come to be viewed as partisan exercises rather neutral determinations of law and courts as political actors no different from a 

Presidential administration or Congress. 

Proponents of H.R. 4768 argue that this legislation is needed to 

restore the separation of powers between Congress and the Executive Branch. In their view, the Executive Branch has infringed 

upon Congress’ legislative powers through an expansion of the rulemaking process and that Federal courts should ‘‘rein in’’ Executive 

Branch agencies by substituting their own judgement on policy 

matters. These arguments essentially reflect an anti-regulatory approach to policy and governance based on the belief that Federal 

courts may be more amenable to carrying out such an agenda. 

There is, however, absolutely no guarantee that any future Executive Branch administration or Federal judge will share such an 

agenda. As Professor Levin testified: 

Even people who agree with the anti-government premises 

of the sponsors [of H.R. 4768] should recognize that a 

change in the APA standard of review is an inapt tool for 

advancing that agenda. It is shortsighted, because it ignores the fact that, over time, political administrations 

change. Sometimes the Administration in office will generally be in favor of deregulation, and in these circumstances a more intrusive standard of judicial review 

would tend to undercut that Administration’s policies just 

as surely as it may tend to undercut a more progressive 

Administration’s policies when the latter holds power.94


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95 Id. at 16 (Professor Jack Beermann, Boston University School of Law), https://judiciary.house.gov/wp-content/uploads/2016/03/Beermann-Testimony.pdf. 96 Id. at 8–9. 97 Id. at 4. 98 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (‘‘If a 

court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.’’). 99Tr. of Markup of H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016,’’ by the H. 

Comm. on the Judiciary, 114th Cong. 22 (June 8, 2016). 100 Id. at 23. 101 Id. at 33. 

This concern was also shared by the Majority’s witness at the 

legislative hearing on the bill 95 who said that because the bill 

broadly applies to all agency actions, H.R. 4768 may ‘‘frustrate 

Congress’ intent’’ in cases where Congress clearly expected agencies 

to apply expertise through gap-filling authority: 

There may be other contexts, however, in which the language, structure and purposes of a statute indicate that 

Congress expects reviewing courts to defer to persuasive 

agency reasoning concerning the proper construction of a 

statute or statutory gaps that Congress would have wanted an agency to fill in line with consistent administrative 

policy. . . . In fact, to some, the term ‘‘deference’’ may be 

something of a misnomer in this context. When Congress 

has delegated to an agency the power to administer a statute, and the agency has thoroughly considered a problem, 

and provided persuasive, valid reasoning for its consistent 

view of the meaning of a statutory term, a reviewing court 

is likely to be convinced that the agency has made a correct decision, or at least a decision that is just as likely to 

be correct as any contrary view advanced by the challengers on judicial review. In such a case, the agency’s decision ought to be approved regardless of whether the 

Skidmore factors are considered to be indicators of persuasion or of deference.96

He also observed that it was ‘‘widely accepted that reviewing courts 

should defer to agency statutory construction when Congress explicitly delegated interpretive authority to the administering agency’’ even prior to the Supreme Court’s decision in Chevron,97 where 

it held that courts should rule to an agency’s reasonable interpretation of its statutory authority.98

In response to these concerns, Representative Henry C. ‘‘Hank’’ 

Johnson, Jr. (D-GA) offered an amendment to exempt from the bill 

rules issued by agencies pursuant to express statutory authority.99

Speaking in support of his amendment, Representative Johnson explained that the bill would undermine clear congressional intent in 

those instances where Congress expressly delegates authority to 

agencies and restricts judicial review.100 The amendment failed, 

however, along party lines by a vote of 5 to 10.101

In sum, H.R. 4768 will disrupt the careful balance reflected in 

the Supreme Court’s Chevron decision. Bolstering the power of 

unelected judges to make substantive policymaking decisions will 

not correct any perceived imbalance between the Executive and 

Legislative Branches. Rather, this bill will destroy that balance by 

giving a non-political branch of the government an explicit license 

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102 Examining the Proper Role of Judicial Review in the Federal Regulatory Process: Hearing 

Before the Subcomm. on Regulatory Affairs and Fed. Management of the S. Comm. on Homeland 

Security and Government Affairs, 114th Cong. 41 (2015) (statement of Prof. Ron Levin), https:// 

www.gpo.gov/fdsys/pkg/CHRG-114shrg94906/pdf/CHRG-114shrg94906.pdf; see also Richard J. 

Pierce, Jr., & Joshua Weiss, An Empirical Study of Judicial Review of Agency Interpretations 

of Agency Rules, 63 ADMIN. L. REV. 515, 515 (2011). 103 Require Evaluation before Implementing Executive Wishlists Act of 2015 and the Regulatory 

Predictability for Business Growth Act of 2015: Hearing on H.R. 3438 and H.R. 2631 Before the 

Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of William Funk, Lewis & Clark Distinguished Professor of 

Law, Lewis & Clark Law School). 104 ABA Sec. of Admin. L. & Reg. Prac., Comments on H.R. 3010, the Regulatory Accountability Act of 2011, 64 Admin. L. Rev. 619, 667 (2012). 105 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). 106 Id. at 866. 

entific rulemakings which effect the public health and safety of millions of Americans. 

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

H.R. 4768 is a solution to a non-existent problem. Empirically, 

agency rulemakings on appeal are upheld roughly 70% of the time, 

regardless of whether the court applies Chevron or a hard-look review, which suggests that many other factors ultimately affect the 

outcome of a court’s review.102 Notwithstanding the debate surrounding deference principles,103 the American Bar Association 

(ABA) Administrative Law Section has clarified: 

Judicial review of agency decisionmaking today is relatively stable, combining principles of restraint with the 

careful scrutiny that goes by the nickname ‘‘hard look review.’’ Since the time of such landmark decisions as Chevron and State Farm (and, of course, for decades prior to 

their issuance), courts have striven to work out principles 

that are intended to calibrate the extent to which they will 

accept, or at least give weight to, decisions by Federal administrative agencies. Debate on these principles continues, but the prevailing system works reasonably well, 

and no need for legislative intervention to revise these 

principles is apparent.104

Deference to an agency’s judgment is also sound policy, as recognized by Chevron, where the Court gave considerable weight to the 

expertise and political accountability of agencies.105 As the Chevron 

Court observed, the Constitution does not endow Federal judges 

with policymaking authority: 

When a challenge to an agency construction of a statutory 

provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the 

challenge must fail. In such a case, Federal judges—who 

have no constituency—have a duty to respect legitimate 

policy choices made by those who do. The responsibilities 

for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘‘Our Constitution vests such 

responsibilities in the political branches.’’ 106


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107Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary from Joel B. Eisen, Professor Law, University of 

Richmond School of Law, and Emily Hammond, Professor of Law, George Washington University Law School, et al. 2 (June 8, 2016) (on file with Democratic staff of the H. Comm. on the 

Judiciary). 108 Examining the Proper Role of Judicial Review in the Federal Regulatory Process: Hearing 

Before the Subcomm. on Regulatory Affairs and Fed. Management of the S. Comm. on Homeland 

Security and Government Affairs, 114th Cong. 48 (2015) (statement of Prof. Ron Levin), https:// 

www.gpo.gov/fdsys/pkg/CHRG-114shrg94906/pdf/CHRG-114shrg94906.pdf. 109Sidney A. Shapiro, A Delegation Theory of the APA, 10 ADMIN. L.J. AM. U. 89, 109 (1996). 110The Chevron Doctrine: Constitutional and Statutory Questions in Judicial Deference to 

Agencies: Hearing Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law 

of the H. Comm. on the Judiciary, 114th Cong. 4 (2016) (statement of Professor Richard Pierce, 

George Washington University Law School), https://judiciary.house.gov/wp-content/uploads/2016/ 

03/Pierce-Testimony-REVISED.pdf. 

These factors are reflected in all relevant case law and in the scholarship of scores of experts in administrative law.107 Similarly, the 

body of precedent surrounding judicial deference already allows for 

checks on executive abuses; ending this tradition would raise countervailing separation of powers concerns, as Professor Levin explains: 

The Court has developed a sophisticated, though always 

evolving, body of precedents in order to calibrate the complex relationship between courts and agencies. These 

precedents do provide for a check on executive abuses, but 

they also reflect a wise recognition that judges do not have 

a monopoly on wisdom, especially in regard to the specialized problems that arise in the interpretation of regulations . . . elimination of all judicial deference . . . may 

raise countervailing separation of powers concerns of its 

own. It brings to mind the reasoning of the Chevron opinion, in which Justice Stevens cautioned the courts against 

being too quick to substitute their judgments for those of 

politically accountable administrators.108

Furthermore, Congress has historically yielded to the expertise of 

the executive branch. Professor Sidney Shapiro, a leading administrative law expert, explains that ‘‘it is difficult for legislators to resolve the policy and political conflicts produced by most reform proposals,’’ while delegation enabled agencies to ‘‘fine-tune procedures 

in different institutional settings and to make incremental changes 

more easily than if legislation was necessary.’’ 109 Professor Pierce 

has similarly cautioned against the legislative reform of the Chevron doctrine: 

I do not see any opportunity for Congress to make beneficial changes in this area of law by statute at present. The 

courts have ample discretion to make any needed changes 

or clarifications in this area of law without any changes in 

the statutes that now govern this area of law. Courts are 

in the best position institutionally to make the kinds of 

changes in legal doctrines that would have a realistic 

chance of improving the legal framework within which 

agencies make rules and the quality and timeliness of the 

resulting rules.110

Finally, as a general matter, administrative law experts believe 

that there is no need to fundamentally amend the APA, including 


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111See Sidney A. Shapiro, A Delegation Theory of the APA, 10 Admin. L.J. Am. U. 89, 89 

(1996). 112See id. 113Letter from 84 administrative law academics to H. Judiciary Comm. Chair Bob Goodlatte 

(R-VA) and H. Judiciary Comm. Ranking Member John Conyers, Jr. (D-MI) 2 (Jan. 12, 2015) 

(on file with the H. Comm. on the Judiciary, Democratic staff). 114Tr. of Markup of H.R. 4768, the ‘‘Separation of Powers Restoration Act of 2016,’’ by the 

H. Comm. on the Judiciary, 114th Cong. 11 (June 8, 2016) (statement of U.S. Rep. John Ratcliff 

(R-TX). 115Letter to U.S. Rep. Bob Goodlatte (R-VA), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary from Joel B. Eisen, Professor Law, University of 

Richmond School of Law, & Emily Hammond, Professor of Law, George Washington University 

Law School, et al. (June 8, 2016) (on file with Democratic staff of the H. Comm. on the Judiciary). 116 Id. at 2. 117 H.R. 4768 Hearing, supra note 48, at 3 (statement of John D. Walke, Esq., Director, Clean 

Air Project, Climate & Clean Air Program, Natural Resource Defense Council), https:// 

judiciary.house.gov/wp-content/uploads/2016/05/Walke-Testimony.pdf. 118See, e.g., The Regulatory Accountability Act of 2011: Hearing on H.R. 3010 Before the H. 

Comm. on the Judiciary, 112th Cong. (2011) (statement of U.S. Rep. Lamar Smith (R-TX), 

Chair, H. Comm. on the Judiciary) (‘‘Standing in the way of growth and job creation is a wall 

of Federal regulation.’’). 119 Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs on Small Firms, Rep. 

No. SBAHQ–08–M–0466 (Sept. 2010), http://archive.sba.gov/advo/research/rs371tot.pdf; Clyde 

Wayne Crews, Jr. Ten Thousand Commandments An Annual Snapshot of the Federal Regulatory 

its treatment of judicial review.111 They argue that the APA’s 

drafters were not unlike those of the Constitution in that they had 

great foresight in making the APA flexible and broad enough so 

that it is able to fit changing times.112 The APA has served, and 

should continue to serve, as ‘‘a kind of Constitution for administrative agencies and the affected public—flexible enough to accommodate the variety of agencies operating under it and the changes in 

modern life.’’ 113

In the absence of any evidence that legislative change is necessary, H.R. 4768 simply addresses a non-existent problem. 

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

FALSE ASSUMPTIONS

Although proponents of H.R. 4768 argue that this legislation is 

necessary to prevent a ‘‘circumvention of our Constitution’’ by Federal agencies,114 H.R. 4768 is yet another thinly-veiled attack on 

regulations.115 As a group of leading administrative law scholars 

note, the bill is ‘‘motived by dissatisfaction with substantive agency 

outcomes rather than with legitimate concerns about judicial practice.’’ 116 John Walke, a senior counsel with the Natural Resource 

Defense Council (NRDC), similarly observes that H.R. 4768 is just 

the latest in a wave of ‘‘legislation embodying conservative political 

and corporate attacks on our modern system of Federal regulation 

and law enforcement by the executive branch.’’ 117 This opposition 

to regulatory safeguards is motivated by the unsubstantiated and 

debunked claims that regulations undermine economic growth, job 

creation, or entrepreneurship, while ignoring the substantial public 

benefits of regulations. 

A. No Evidence Exists Proving that Regulations Have a Significant 

Adverse Impact on Jobs, Wages, or Innovation 

1. Proponents of Regulatory Reform Rely on False Assumptions 

Anti-regulatory proponents routinely argue that regulations ‘‘kill’’ 

jobs,118 citing flawed studies indicating that the cost of regulations exceed $1.8 trillion a year, or $15,000 per U.S. household.119 In 


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State, COMPETITIVE ENTERPRISE INSTITUTE (2014), http://cei.org/sites/default/files/Wayne% 

20Crews%20-%20Ten%20Thousand%20Commandments%202014.pdf; Clyde Wayne Crews, Jr. 

Tip of the Costberg, COMPETITIVE ENTERPRISE INSTITUTE (2015), http://cei.org/sites/default/files/ 

Wayne%20Crews%20-%20Ten%20Thousand%20Commandments%202014.pdf. 120 Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs on Small Firms, Rep. 

No. SBAHQ–08–M–0466 (Sept. 2010), available at http://archive.sba.gov/advo/research/rs371tot. 

pdf. 121 CURTIS W. COPELAND, CONG. RESEARCH SERV., R41763, ANALYSIS OF AN ESTIMATE OF THE

TOTAL COSTS OF FEDERAL REGULATIONS, CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS (2011). 122 Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to the author of the CRS report). 123See, e.g., Sidney Shapiro et al., Setting the Record Straight: The Crain and Crain Report 

on Regulatory Costs, CENTER FOR PROGRESSIVE REFORM (Feb. 2011), http://www. 

progressivereform.org/articles/sba_regulatory_costs_analysis_1103.pdf; Lisa Heinzerling & Frank 

Ackerman, The $1.75 Trillion Lie, 1 MICH. J. ENVTL. & ADMIN. L. 127 (2012). 124See, e.g., Clyde Wayne Crews, Jr. Tip of the Costberg, COMPETITIVE ENTERPRISE INSTITUTE

(2015), http://cei.org/sites/default/files/Wayne%20Crews%20-%20Ten%20Thousand%20 

Commandments%202014.pdf (‘‘Best wishes to all pouring disdain on the Small Business Administration’s assessment of the regulatory enterprise, as [Cass] Sunstein and several policy groups 

did.’’). 125MAEVE CAREY, CONG. RESEARCH SERV., R44348, METHODS OF ESTIMATING THE TOTAL COST

OF FEDERAL REGULATIONS 1 (2016). 126 Id. at 2. 127 Id. at 3. 128Glenn Kessler, The Claim That American Households Have a 15,000 Regulatory ‘Burden’, 

WASH. POST (Jan 14, 2015), http://www.washingtonpost.com/blogs/fact-checker/wp/2015/01/14/ 

the-claim-that-americanhouseholds-have-a-15000-regulatory-burden/. 

short, these arguments lack merit. The non-partisan Congressional 

Research Service (CRS) has twice debunked anti-regulatory claims 

on the ‘‘cost of regulation.’’ In 2011, the CRS conducted an extensive examination of a study routinely cited by the Majority which 

was conducted by economists Mark and Nicole Crain asserting that 

Federal regulation imposes an annual cost of $1.75 trillion on business.120 CRS determined that the methodology of this report, which 

was widely-cited by advocates for regulatory reform proposals, was 

deeply flawed,121 noting that the authors of the study acknowledged that their analysis was ‘‘not meant to be a decision-making 

tool for lawmakers or Federal regulatory agencies to use in choosing the ‘right’ level of regulation. In no place in any of the reports 

do we imply that our reports should be used for this purpose. (How 

could we recommend this use when we make no attempt to estimate the benefits?).’’ 122

Following extensive criticism of the Crain and Crain study,123

anti-regulatory activists have issued other studies on the cost of 

regulation.124 Nevertheless, CRS, in another exhaustive report in 

released in January 2016, debunked the methodology of these studies as well.125 Examining several different approaches for determining proxy measures for the ‘‘overall amount of regulation,’’ CRS 

noted that each method ‘‘produces radically different results,’’ concluding that the ‘‘[c]urrent estimates of the cost of regulation 

should be viewed with a great deal of caution.’’ 126 CRS likewise observed that by any methodology, estimates of the cost of regulation 

have ‘‘inherent—and potentially insurmountable—flaws . . . 

rais[ing] the question of the utility of using such figures in the regulatory reform debate.’’ 127 The Washington Post raised similar concerns in 2015, referring to the regulatory cost estimates most frequently cited by regulatory reform proponents as ‘‘simply an idiosyncratic guesstimate’’ with ‘‘serious methodological problems.’’ 128


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129See, e.g., Shapiro et al., supra note 123. 130The Regulatory Accountability Act of 2011: Hearing on H.R. 3010 Before the H. Comm. on 

the Judiciary, 112th Cong. (2011) (prepared statement of Prof. Sidney Shapiro, Professor, Wake 

Forest School of Law). 131 6 CARY COGLIANESE, ADAM M. FINKEL & CHRISTOPHER CARRIGAN, DOES REGULATION KILL

JOBS? (2014). 132 Christopher Carrigan and Cary Coglianese, Informing the Debate over Regulation’s Impact 

on Jobs, REGBLOG (Mar. 10, 2014), http://www.regblog.org/2014/03/10/10-carrigan-coglianeseinforming-debate. 133 Id. 

2. Regulations Do Not Have Any Major Adverse Impact on 

Employment 

While the Majority asserts that employment and economic 

growth are inhibited by regulations, the evidence is to the contrary.129 For example, Professor Sidney Shapiro testified in 2011 

that ‘‘[a]ll of the available evidence contradicts the claim that regulatory uncertainty is deterring business investment.’’ 130 Similarly, 

leading administrative law scholars at the University of Pennsylvania examined the impacts of regulation on an economy-wide 

basis and concluded in 2014 that ‘‘regulation plays relatively little 

role in affecting the aggregate number of jobs in the United 

States.’’ 131 Professors Cary Coglianese and Christopher Carrigan, 

the authors of this study, further argue that anti-regulatory claims 

are based on empty political rhetoric: 

From a theoretical standpoint, regulations might reduce 

employment by increasing product prices. But regulations 

can also be expected to increase labor demand as well, particularly in producing the technologies or other compliance 

strategies needed to implement new regulations. These opposing forces have the potential to cancel each other out, 

and empirical research to date suggests this is what happens. Most of the evidence demonstrates that regulation 

plays a relatively small role in determining the aggregate 

number of jobs. Studies either find no relationship at all 

or they indicate that regulation has at most modest positive or negative effects on overall employment. Yet . . . 

politicians still intensely debate regulation’s impact on 

jobs. Of course, it should not surprise anyone to learn that 

political rhetoric does not track the latest social science research. We know that whatever the evidence may say 

about policy issues, symbolic gestures play an important 

role in politics. Politicians face intense pressure to do 

something in the face of crisis—regardless of whether their 

actions are likely to remedy the underlying problem.132

Economic literature and empirical analysis of the impact of regulations on the unemployment rate bolster these analyses. Economic 

policy experts, writing for the Federal Reserve Bank of San Francisco, observed in 2013 that while businesses’ concerns about the 

effects of regulation and taxes rose during the recession, ‘‘there is 

no evidence that job losses were larger in states where businesses 

were more worried about these factors,’’ whereas unemployment 

spiked ‘‘precisely when businesses began worrying about poor 

sales.’’ 133 Similarly, Richard Morgenstern, a senior fellow at Resources for the Future who served as a regulatory policy expert for 

over two decades under both Republican and Democratic AdminisVerDate Sep 11 2014 01:20 Jun 15, 2016 Jkt 059006 PO 00000 Frm 00040 Fmt 6659 Sfmt 6601 E:\HR\OC\HR622.XXX HR622

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134 Jia Lynn Yang, Does Government Regulation Really Kill Jobs? Economists Say Overall Effect Is Minimal, WASHINGTON POST (Nov. 13, 2011), https://www.washingtonpost.com/business/ 

economy/does-government-regulation-really-kill-jobs-economists-say-overall-effect-minimal/2011/ 

10/19/gIQALRF5IN_story.html. 135 Isaac Shapiro & John Irons, Regulation, Employment & and the Economy: Fears of Job 

Loss Are Overblown (Envtl. Pol’y Inst., Briefing Paper No. 305, 2011), http://epi.3cdn.net/ 

961032cb78e895dfd5_k6m6bh42p.pdf. 136Letter to U.S. Rep. Lamar Smith (R-TX), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary, from David A. Forster, Executive Director, 

BlueGreen Alliance, at 2 (Nov. 2, 2011) (on file with the H. Comm. on the Judiciary, Democratic 

staff). 137Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, WALL ST. J. (July 18, 2011), http:// 

online.wsj.com/article/SB10001424052702303661904576452181063763332.html. 138Press Release, Nat’l Federation of Independent Businesses, Small Business Confidence 

Takes Huge Hit: Optimism Index Now in Decline for Six Months Running (Sept. 13, 2011) (‘‘Of 

those reporting negative sales trends, 45 percent blamed faltering sales, 5 percent higher labor 

costs, 15 percent higher materials costs, 3 percent insurance costs, 8 percent lower selling prices 

and 10 percent higher taxes and regulatory costs.’’), http://www.nfib.com/press-media/pressmedia-item?cmsid=58190. 139Letter from American Sustainable Business Council to H. Comm. on the Judiciary at 2 

(Jan. 4, 2016) (on file with the H. Comm. on the Judiciary, Democratic Staff). 

trations, concluded that there is little economic evidence that environmental regulations ‘‘are causing major job losses or major job 

gains.’’ 134 Applying data from the Bureau of Labor Statistics, the 

Economic Policy Institute found that less than 0.5% of employees 

lost their jobs during the recession due to Federal regulation.135 If 

anything, regulations can promote job growth and put Americans 

back to work. For instance, the BlueGreen Alliance, notes: 

Studies on the direct impact of regulations on job growth 

have found that most regulations result in modest job 

growth or have no effect, and economic growth has consistently surged forward in concert with these health and safety protections. The Clean Air Act is a shining example, 

given that the economy has grown 204% and private sector 

job creation has expanded 86% since its passage in 

1970.136

Surveys of small businesses likewise confirm that Federal regulation is not an impediment to hiring or growth. A July 2011 Wall 

Street Journal survey of business economists found that the ‘‘main 

reason U.S. companies are reluctant to step up hiring is scant demand, rather than uncertainty over government policies.’’ 137

Unsurprisingly, a September 2011 National Federation of Independent Business survey of its members found that ‘‘poor sales’’ is 

the biggest problem facing businesses, not regulation.138 Recent 

polling conducted by the American Sustainable Business Council, 

which represents over 200,000 businesses and more than 325,000 

business professionals, likewise indicates that most small businesses understand the importance of Federal regulation, reporting 

that ‘‘78% of small employers agree regulations are important in 

protecting small businesses from unfair competition and leveling 

the playing field with big business.’’ 139 Indeed, the Main Street Alliance, a small business organization, also observes: 

In survey after survey and interview after interview, Main 

Street small business owners confirm that what we really 

need is more customers—more demand—not deregulation. 

Policies that restore our customer base are what we need 

now, not policies that shift more risk and more costs onto 

us from big corporate actors. . . . To create jobs and get 

our country on a path to a strong economic future, what 


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140Letter to U.S. Rep. Lamar Smith (R-TX), Chair, & U.S. Rep. John Conyers, Jr. (D-MI), 

Ranking Member, H. Comm. on the Judiciary, from Jim Houser, Co-Chair, The Main Street Alliance, et al., at 1–2 (Nov. 2, 2011) (on file with the H. Comm. on the Judiciary, Democratic Staff). 141The Regulatory Accountability Act of 2011: Hearing on H.R. 3010 Before the H. Comm. on 

the Judiciary, 112th Cong. (2011) (prepared statement of Christopher DeMuth, American Enterprise Institute); see also Jia Lynn Yang, Does Government Regulation Really Kill Jobs? Economists Say Overall Effect Minimal, WASH. POST (Nov. 13, 2011), http://www.washingtonpost.com/ 

business/economy/does-government-regulation-really-kill-jobs-economists-say-overall-effect-minimal/2011/10/19/gIQALRF5IN_story.html?hpid=z1 (‘‘In 2010, 0.3 percent of the people who lost 

their jobs in layoffs were let go because of ‘government regulations/intervention.’ By comparison, 

25 percent were laid off because of a drop in business demand. . . . Economists who have studied the matter say that there is little evidence that regulations cause massive job loss in the 

economy, and that rolling them back would not lead to a boom in job creation.’’). 142See Regulation, Jobs, and Economic Growth: An Empirical Analysis, The George Washington University Regulatory Studies Center Working Paper, at 27 (Mar. 2012) (finding that the 

‘‘macroeconomic effects of regulation are uncertain’’ and that the study’s ‘‘results reveal no impact’’ when considering either the impact of regulations on the ‘‘total economy or strictly the 

private sector’’), http://regulatorystudies.gwu.edu/images/pdf/032212_sinclair_vesey_reg_jobs_ growth.pdf. 143 Heather Long, Obama Economy: 8.7 Million Jobs, CNNMONEY (Nov. 6, 2015), http:// 

money.cnn.com/2015/11/06/news/economy/obama-jobs. 144 Id. 

small businesses need is customers—Americans with 

spending money in their pockets—not watered down 

standards that give big corporations free reign to cut corners, use their market power at our expense, and force 

small businesses to lay people off and close up shop.140

Even conservative policy experts have refuted the claim that regulations undermine employment. Christopher DeMuth, formerly 

the president of the American Enterprise Institute, a conservative 

think tank, stated in his prepared testimony that the ‘‘focus on jobs 

. . . can lead to confusion in regulatory debates’’ and that ‘‘the employment effects of regulation, while important, are indeterminate.’’ 141 A George Washington University study confirms this result.142

Other conservatives have also acknowledged that, in light of improvements in the economy and unemployment rate, it is becoming 

increasingly difficult to argue that the current regulatory environment has any effect on jobs or growth. Douglas Holtz-Eakin, president of the American Action Forum, commented in October 2015 

that ‘‘[w]ith low unemployment and rising wages, the Republicans’ 

job gets a lot harder,’’ while also referring to recent employment 

growth as ‘‘promising.’’ 143 Gregory Valliere, a chief global strategist 

at Horizon Investments, echoed this sentiment, noting that ‘‘Republicans . . . can no longer credibly claim that the economy is terrible.’’ 144 Bruce Bartlett, a senior policy analyst in the Reagan and 

George H.W. Bush Administrations, offers this explanation for why 

conservatives embrace deregulation as a solution for job growth: 

Republicans have a problem. People are increasingly concerned about unemployment, but Republicans have nothing to offer them. The G.O.P. opposes additional government spending for jobs programs and, in fact, favors big 

cuts in spending that would be likely to lead to further layoffs at all levels of government. . . . These constraints 

have led Republicans to embrace the idea that government 

regulation is the principal factor holding back employment. 

They assert that Barack Obama has unleashed a tidal 

wave of new regulations, which has created uncertainty 

among businesses and prevents them from investing and 

hiring. No hard evidence is offered for this claim; it is simVerDate Sep 11 2014 01:20 Jun 15, 2016 Jkt 059006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6601 E:\HR\OC\HR622.XXX HR622

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145 Bruce Bartlett, Op-Ed., Misrepresentations, Regulations and Jobs, N.Y. TIMES ECONOMIX

(Oct. 4, 2011), http://economix.blogs.nytimes.com/2011/10/04/regulation-and-unemployment/. 146The Office of Information And Regulatory Affairs: Hearing Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. 

3 (2015) (prepared statement of Noah Sachs, Professor, University of Richmond School of Law), 

http://progressivereform.org/articles/Sachs_testimony_HJud_OIRA_071515.pdf. 147The Obama Administration’s Regulatory War on Jobs, the Economy, and America’s Global 

Competitiveness: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (2013) (prepared 

statement of Robert Glicksman, The George Washington Law School). 148Taylor Lincoln, It’s an Outrage Regulations Are Entirely to Blame for Unemployment and 

a Leading Cause of Death in the United States, According to Industry and Its Allies, PUBLIC CITIZEN 4 (2013), http://www.citizen.org/documents/regulations-are-to-blame-unemployment-deathreport.pdf. 149 Id. at 6–7. 150 Id. at 9. 151 Examining the Federal Regulatory System to Improve Accountability, Transparency and Integrity: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 29 (2015) (prepared statement of Robert Weissman, President, Public Citizen), http://www.citizen.org/documents/ 

weissman-senate-judiciary-testimony-regulatory-protections.pdf. 

ply asserted as self-evident and repeated endlessly 

throughout the conservative echo chamber.145

3. Cost Estimates of Regulations Tend To Be Overstated 

Far from an exact science, regulatory costs are notoriously difficult to calculate and are often dramatically over-inflated.146 Robert Glicksman, professor of environmental law at The George 

Washington University Law School, has testified that companies 

‘‘have a strong incentive to overstate costs in order to skew the 

final cost-benefit analysis toward weaker regulatory standards,’’ 

while agencies tend to adopt conservative assumptions about regulatory costs, such that the cost assessment often ends up reflecting 

the maximum possible cost, rather than the mean.’’ 147 In 2013, 

Public Citizen conducted a retrospective study on claims linking job 

losses and regulations and found that none ‘‘proved remotely accurate.’’ 148 For instance, automakers who opposed catalytic-converter 

requirements under the Clean Air Act of 1970 argued at the time 

that the requirement would ‘‘do irreparable damage to the American economy’’ and erase 800,000 jobs.149 Notwithstanding these 

claims, automobile sales grew during the first year the rule went 

into effect, and automobile costs fell to an all-time low, tailpipe-hydrocarbon emissions fell by more than 57%, all without any evidence of job losses.150 In 2015, Robert Weissman, the President of 

Public Citizen, explained: 

There is also a long history of business complaining about 

the cost of regulation—and predicting that the next regulation will impose unbearable burdens. More informative 

than the theoretical work, anecdotes and allegations is a 

review of the actual costs and benefits of regulations, 

though even this methodology is significantly imprecise 

and heavily biased against the benefits of regulation. 

Every year, the Office of Management and Budget analyzes the costs and benefits of rules with significant economic impact. The benefits massively exceed costs.151

Indeed, the Office of Management and Budget (OMB) observed in 

its first annual report on the costs and benefits of Federal regulations that there are ‘‘enormous data gaps in the information availVerDate Sep 11 2014 01:20 Jun 15, 2016 Jkt 059006 PO 00000 Frm 00043 Fmt 6659 Sfmt 6601 E:\HR\OC\HR622.XXX HR622

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152OFFICE OF MANAGEMENT AND BUDGET, 1998 Report of OMB to Congress on the Costs and 

Benefits of Federal Regulations 2 (1998). 153 Id. 154 Id. 155 Regulatory Accountability Act of 2013: Hearing Before the Subcomm. on Regulatory Reform, 

Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th Cong. 1 (2013) (prepared statement of Diana Thomas, Associate Professor in the Economics, Creighton University), 

http://mercatus.org/sites/default/files/Thomas_EffectsRegulationLowIncome_testimony_070813.pdf. 156Patrick A. McLaughlin and Laura Stanley, Regulation and Income Inequality: The Regressive Effects of Entry Regulations (Mercatus Working Paper, Mercatus Center at George Mason 

University, 2016), http://mercatus.org/sites/default/files/McLaughlin-Regulation-Income-Inequality.pdf (discussing state licensing and using data from the World Bank’s Doing Business 

dataset). 157World Bank Group, About Doing Business, THE WORLD BANK, http://www.doing 

business.org/about-us. 158See, e.g., Sidney Shapiro et al., Setting the Record Straight: The Crain and Crain Report 

on Regulatory Costs, CENTER FOR PROGRESSIVE REFORM (Feb. 2011), http://www. 

progressivereform.org/articles/sba_regulatory_costs_analysis_1103.pdf; Lisa Heinzerling & Frank 

Ackerman, The $1.75 Trillion Lie, 1 MICH. J. ENVTL. & ADMIN. L. 127 (2012); Copeland, supra 

note 122. 159 Copeland, supra note 122. 160 How the Administration’s Regulatory Onslaught is Affecting Workers and Job Creators: 

Hearing Before the H. Comm. on Education & Workforce, 114th Cong. 4 (2015) (prepared statement of Christine L. Owens, Executive Director, National Employment Law Project), http:// 

democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/files/ 

Testimony%20of%20Christine%20Owens.Final.12-07-2015.pdf. 161Mary C. Daly & Bart Hobijn, Why Is Wage Growth So Slow? FRBSF ECONOMIC LETTER

(Jan. 5, 2015), http://www.frbsf.org/economic-research/publications/economic-letter/2015/january/ 

unemployment-wages-labor-market-recession. 

able on regulatory benefits and costs.’’ 152 In a review of several 

dozen environmental and occupational safety regulations, researchers repeatedly found that ‘‘cost estimates tend to be much higher 

than real-world compliance costs.’’ 153 This is particularly true for 

the initial estimates of costs, which were at least twice their actual 

cost, and ‘‘could be seen more in the nature of debating points than 

objective assessments of costs.’’ 154

4. Congressional Inaction, Not Regulation, Undermines Wage 

Growth 

Anti-regulatory proponents also argue that regulations handicap 

wage growth and that public health and safety regulations reflect 

the ‘‘preferences of high-income households but increases prices 

and reduces wages for all households.’’ 155 This argument ignores 

the economic literature and is unsupported by any serious evidence.156 In fact, the evidence used to generate these studies—the 

World Bank’s Doing Business dataset, which measures ‘‘business 

regulation and reform in different cities and regions within a nation’’ 157—is substantively identical to the underlying data used by 

the Crain and Crain Study, which was roundly debunked.158 Indeed, as CRS noted in its exhaustive criticism of that study, the 

authors of the World Bank report expressed concerns with extrapolating the underlying data of the report, which is not based on actual cost estimates and reflects opinion polling, for secondary purposes.159

Notwithstanding the lack of support for these claims, there is 

evidence that wages have stagnated or declined for most workers 

despite increases in productivity and education levels.160 Senior 

economists for the Federal Reserve Bank of San Francisco, however, attribute this stagnation to ‘‘downward nominal wage rigidity,’’ which describes the ‘‘hesitancy of employers to reduce wages 

and the reluctance of workers to accept wage cuts, even during recessions.’’ 161 Under normal market conditions, unemployment and 


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162 Id. 163Lawrence Mishel, Causes of Wage Stagnation, ECONOMIC POLICY INSTITUTE (Jan. 6, 2015), 

http://www.epi.org/publication/causes-of-wage-stagnation. 164 Id. 165 Id. 

wages are closely tied such that a decline in unemployment normally yields higher wages. Downward wage rigidities, however, disrupt this relationship, resulting in delayed wage growth even in a 

period of economic recovery: 

Downward rigidities prevent businesses from reducing 

wages as much as they would like following a negative 

shock to the economy. This keeps wages from falling, but 

it also further reduces the demand for workers, contributing to the rise in unemployment. Accordingly, the higher 

wages come with more unemployment than would occur if 

wages were flexible and could be fully reduced. As the 

economy recovers, the situation reverses and the pressure 

to cut wages dissipates. However, the accumulated stockpile of pent-up wage cuts remains and must be worked off 

to put the labor market back in balance. In response, businesses hold back wage increases and wait for inflation and 

productivity growth to bring wages closer to their desired 

level. Since it takes some time to fully exhaust the pool of 

wage cuts, wage growth remains low even as the economy 

expands and the unemployment rate declines.162

Progressive economic experts, meanwhile, attribute wage stagnation to congressional inaction, particularly with regard to minimum-wage increases.163 Lawrence Mishel, president of the Economic Policy Institute, argues that intentional policy choices have 

greatly contributed to wage stagnation.164 ‘‘[T]he most glaring policy choices that worsened unemployment, and therefore contributed 

to wage stagnation,’’ Mr. Mishel argues, ‘‘are Congress’s embrace of 

fiscal austerity and state and local governments’ spending cutbacks.’’ 165 Christine Owens, executive director of the National Employment Law Project, similarly refutes the assumption that regulations have depressed wage growth, and instead points to the vital 

protections that regulations provide for the workforce: 

Though opponents of these actions castigate them as ‘‘jobkillers,’’ the reality is quite different: The regulations and 

sub-regulatory guidance, along with the President’s laborrelated executive orders, do not deter economic growth or 

cost us jobs. Instead, they are essential to our nation’s 

workforce—to workers’ ability to earn pay commensurate 

with the work they do and the time they spending doing 

it, to balance their personal and professional obligations, 

to labor free of insidious discrimination, and to work in environments that do not put their health, well-being and 

very lives in danger. Mischaracterizing these actions as 

bad for employers, bad for workers and bad for the economy ignores the crucial role that thoughtful, tailored regulatory action plays in building a robust economy on the 

foundation of safe and healthy workplaces, where workers 


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166 How the Administration’s Regulatory Onslaught is Affecting Workers and Job Creators: 

Hearing Before the H. Comm. on Education & Workforce, 114th Cong. 4 (2015) (prepared 

statement of Christine L. Owens, Executive Director, National Employment Law Project), http:// 

democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/files/Testimony%20of% 

20Christine%20Owens.Final.12-q07-2015.pdf. 167 James Bailey & Diana Thomas, Regulating Away Competition: The Effect of Regulation 

on Entrepreneurship and Employment (Mercatus Working Paper, Mercatus Center at George 

Mason University, 2015), http://mercatus.org/publication/regulating-away-competition-effectregulation-entrepreneurship-and-employment. 168 Id. 169 Nathan Goldschlag & Alexander Tabarrok, Is Regulation to Blame for the Decline in American Entrepreneurship? (Mercatus Working Paper, Mercatus Center at George Mason University, 2014), http://mercatus.org/sites/default/files/Bailey-Regulation-Entrepreneurship.pdf. 170 Alex Tabarrok, Is Regulation to Blame for the Decline in American Entrepreneurship? 

MARGINALREVOLUTION (Feb. 18, 2015), http://marginalrevolution.com/marginalrevolution/2015/ 

02/is-regulation-to-blame-for-the-decline-in-dynamism.html. 171Tangled in Red Tape: New Challenges for Small Manufacturers: Hearing Before the H. 

Comm. on Small Business, 114th Cong. 4 (2015) (prepared statement of James Goodwin, Senior 

Policy Analyst, Center for Progressive Reform), http://www.progressivereform.org/articles/ 

Goodwin%20Testimony%20House%20Small%20Business%20Final%20(2).pdf. 172 Id. 173 Regulatory Flexibility Act Compliance: Is EPA Failing Business?: Hearing Before the H. 

Comm. on Small Business, 112th Cong. 3 (2012) (prepared statement of Frank Knapp, President, South Carolina Small Business Chamber of Commerce), http://smallbusiness.house.gov/ 

uploadedfiles/6-27_knapp_testimony.pdf. 174Letter from American Sustainable Business Council to H. Comm. on the Judiciary at 2 

(Jan. 4, 2016) (on file with the H. Comm. on the Judiciary, Democratic Staff). 

earn living wages and have fair opportunities to advance.166

5. Regulations Help Promote Greater Entrepreneurship, 

Competition, and Innovation 

Some anti-regulatory proponents argue that regulations may be 

‘‘detrimental to economic prosperity to the extent that it deters entrepreneurship.’’ 167 Higher levels of regulation, they assert, may 

benefit large incumbent firms while placing disproportionate compliance costs on smaller competitors.168 Alex Tabarrok, an economics chair at the Mercatus Center, refuted this argument in a 2015 

study on the effects of regulation on entrepreneurship.169 Applying 

the same data set as the anti-regulatory studies, Mr. Tabarrok 

found that ‘‘industries with greater regulatory stringency have 

higher startup rates,’’ as well as similarly high job-creation 

rates.170 James Goodwin, a senior policy analyst at the Center for 

Progressive Reform, adds that regulations also have the effect of 

creating new markets for competition.171 For example, regulating 

toxic chemicals has resulted in new competition by firms and 

startups in the chemical manufacturing industry.172 Frank Knapp, 

Jr., president of the South Carolina Small Business Chamber of 

Commerce, further argues: 

Every responsible new rule that protects the health of our 

citizens and workers opens a door to newer and better 

products. Our nation is loaded with these small business 

entrepreneurs just waiting to solve a problem when the demand is created.173

Regulatory reform proposals, meanwhile, would undermine competition and small-business creation. David Levine, CEO of the 

American Sustainable Business Council, states that anti-regulatory 

legislation would ‘‘only worsen the uneven economic playing field’’ 

for small businesses, providing incumbent and large businesses 

with a competitive advantage.174 Views in this light, a deregulatory 


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175The Office of Information and Regulatory Affairs: Hearing Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. 

3 (2015) (prepared statement of Noah Sachs, Professor, University of Richmond School of Law), 

http://progressivereform.org/articles/Sachs_testimony_HJud_OIRA_071515.pdf. 176 Copeland, supra note 122. 177 John Irons & Andrew Green, Flaws Call for Rejecting Crain and Crain Model: Cited $1.75 

Trillion Cost of Regulations Is Not Worth Repeating, ECONOMIC POLICY INSTITUTE (July 19, 

2011), http://w3.epi-data.org/temp2011/IssueBrief308.pdf. 178 U.S. GOV’T ACCOUNTABILITY OFF., GAO–05–939T, REGULATORY REFORM: PRIOR REVIEWS

OF FEDERAL REGULATORY PROCESS INITIATIVES REVEAL OPPORTUNITIES FOR IMPROVEMENTS 1 

(2007), http://www.gao.gov/assets/120/112084.pdf. 179OFFICE OF MANAGEMENT AND BUDGET, DRAFT 2015 REPORT TO CONGRESS ON THE BENEFITS

AND COSTS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRI- BAL ENTITIES 2, https://www.whitehouse.gov/sites/default/files/omb/inforeg/2015_cb/draft_ 2015_cost_benefit_report.pdf 180 Id. 181 ENVIRONMENTAL PROTECTION AGENCY, BENEFITS AND COSTS OF THE CLEAN AIR ACT, SECOND PROSPECTIVE STUDY: 1990 TO 2020 (2011), http://www.epa.gov/air/sect812/prospective2.html 182 Id; see also Editorial, The Job-Creating Mercury Rule, N.Y. TIMES (Feb. 22, 2012), http:// 

www.nytimes.com/2012/02/23/opinion/the-job-creating-mercury-rule.html (noting that an estimated 11,000 deaths will be prevented by pending mercury rule under the Clean Air Act). 

business environment would serve as a serious impediment for 

startups and innovation. 

B. Proponents of Anti-Regulatory Legislation Ignore the Net 

Benefits of Regulations 

Anti-regulatory proponents frequently fail to account for the benefits of regulation, even though they often greatly exceed regulatory 

costs.175 In its critical report on the Crain and Crain study, CRS 

concluded that ‘‘a valid, reasoned policy decision can only be made 

after considering information on both costs and benefits’’ of regulation.176 The Economic Policy Institute reached a similar conclusion.177 The Government Accountability Office (GAO) observes that 

while the cost of regulations ‘‘are estimated to be in the hundreds 

of billions of dollars,’’ the ‘‘benefits estimates are even higher.’’ 178

The Office of Management and Budget (OMB), which estimates the 

costs and benefits of regulations, reported in 2015 that from October 1, 2004, to September 30, 2014, the costs of regulation ranged 

in the aggregate between $57 billion and $85 billion, while the benefits were estimated to be between $216 billion and $812 billion.179

Therefore, even if one uses OMB’s highest estimate of costs and its 

lowest estimate of benefits, regulations issued over the past 10 

years have produced net benefits of $216 billion to our society. 

Such estimates were consistent across Democratic and Republican 

administrations.180 Given that the benefits of regulations consistently exceed the costs, the need for any legislation that would 

make the issuance of regulations more difficult or time consuming 

is certainly in question. 

The benefits of regulation are also apparent when viewed 

through the lens of prevention. For example, a 2011 Environmental 

Protection Agency report found that the public health benefits of 

clean air regulations far outweigh the compliance cost to industry.181 The report concluded that restrictions on fine particle and 

ground-level ozone pollution mandated by the 1990 Clean Air Act 

amendments would prevent 230,000 deaths and produce benefits of 

about $2 trillion by 2020.182

CONCLUSION

By mandating that Federal courts review de novo all agency 

rulemakings and statutory interpretations, H.R. 4768, the ‘‘SeparaVerDate Sep 11 2014 01:20 Jun 15, 2016 Jkt 059006 PO 00000 Frm 00047 Fmt 6659 Sfmt 6601 E:\HR\OC\HR622.XXX HR622

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tion of Powers Restoration Act of 2016,’’ overrides longstanding and 

well-reasoned Supreme Court precedent establishing judicial deference to agencies’ statutory interpreations, which acknowledges 

the intrinsic value of agency expertise and political accountability 

in rulemaking. The direct effect of H.R. 4768 is that it would empower a generalist court to nullify agency action solely on policy 

grounds. As a result, the rulemaking process will become even 

more costly and time-consuming because it would force agencies to 

adopt even more detailed factual records and explanations, which 

would further delay the promulgation of critical rules safeguarding 

public health, safety, and the environment. Furthermore, the bill 

presents possible separation of power concerns because the measure fails to impose any constraint on its heightened standard of judicial review, thereby allowing courts to substitute their policy for 

the agencies’ expertise and congressionally delegated authority. 

And, like many other anti-regulatory initiatives proposed by the 

Majority, H.R. 4768 is a very ill-conceived solution in search of a 

non-existent problem. 

For the foregoing reasons, we strongly oppose H.R. 4768 and we 

urge our colleagues to join us in opposition. 

MR. CONYERS, JR. 

MS. LOFGREN. 

MS. JACKSON LEE. 

MR. COHEN. 

MR. JOHNSON, JR. 

MS. CHU. 

MR. GUTIERREZ. 

MR. RICHMOND. 

MR. JEFFRIES. 

MR. CICILLINE. 

Æ 


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