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20–358 PDF 2016

S. Hrg. 114–284 

EXAMINING AGENCY USE OF DEFERENCE 

PART II 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 17, 2016 

Available via http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

BENJAMIN C. GRAZDA, Hearing Clerk 

SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

JAMES LANKFORD, Oklahoma, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

MICHAEL B. ENZI, Wyoming 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

HEIDI HEITKAMP, North Dakota 

JON TESTER, Montana 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

JOHN CUADERESS, Staff Director 

ERIC BURSCH, Minority Staff Director 

RACHEL NITSCHE, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Lankford .............................................................................................. 1 

Senator Heitkamp ............................................................................................ 2 

Senator Ernst .................................................................................................... 16 

Prepared statement: 

Senator Lankford .............................................................................................. 27 

WITNESSES 

THURSDAY, MARCH 17, 2016 

Neomi Rao, Associate Professor of Law, George Mason University School 

of Law .................................................................................................................... 5 

Charles J. Cooper, Partner, Cooper & Kirk, PLLC ............................................... 7 

Michael Herz, Arthur Kaplan Professor of Law, Cardozo School of Law ........... 9 

ALPHABETICAL LIST OF WITNESSES

Cooper, Charles J.: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 44 

Herz, Michael: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 70 

Rao, Neomi: 

Testimony .......................................................................................................... 5 

Prepared statement .......................................................................................... 29 

APPENDIX 

Responses to post-hearing questions for the Record: 

Ms. Rao .............................................................................................................. 80 

Mr. Cooper ........................................................................................................ 84 

Mr. Herz ............................................................................................................ 91 

(1) 

EXAMINING AGENCY USE OF DEFERENCE, 

PART II 

THURSDAY, MARCH 17, 2016 

U.S. SENATE,

SUBCOMMITTEE ON REGULATORY,

AFFAIRS AND FEDERAL MANAGEMENT,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:02 a.m., in room 

342, Dirksen Senate Office Building, Hon. James Lankford, Chairman of the Subcommittee, presiding. 

Present: Senators Portman, Ernst and Heitkamp 

OPENING STATEMENT OF CHAIRMAN LANKFORD 

Senator LANKFORD. Good morning, everyone, and welcome. I cannot imagine what anyone would rather do on a St. Patrick’s Day 

than to be in a hearing with two redheads talking about judicial 

deference. Doesn’t that just sound festive? 

Let me welcome everyone here. This is Examining Agency Use 

of Deference, Part II, for us. This is an incredibly important issue. 

Today’s hearing will focus on the practice of Federal courts deferring to agencies when it comes to their interpretation of statutes, 

more commonly referred to as Chevron deference. 

The Constitution provides for three separate and distinct 

branches of government, each with a check on the others. As Chief 

Justice John Marshall stated in 1825, the Legislature makes, the 

Executive executes, and the Judiciary construes the law. Chevron 

blurs the traditional understanding of separation of powers by giving agencies the power to interpret the meaning of statutory ambiguities. Chevron deference has fundamentally altered how agencies 

regulate. Instead of simply carrying out the directives of Congress, 

agencies can seek out ambiguities in the law so they can address 

problems as they see fit. They do so knowing that the courts will 

likely take their interpretations, defer to them as permissible construction regardless of congressional intent. 

Take for example, the Waters of the United States (WOTUS) 

Rule. Emboldened by the Chevron deference, the Environmental 

Protection Agency (EPA) expanded the Clean Water Act beyond 

anything contemplated by the enacting Congress to the detriment 

of landowners and farmers. With studies showing that traditionally 

Supreme Court justices defer to the agency’s interpretation more 

than 70 percent of the time, the EPA knows that it would be very 
2 

unlikely that a Supreme Court would overturn the Waters of the 

United States Rule. 

Its abdication of judicial power runs counter to the standard of 

review laid out in the Administrative Procedures Act (APA). The 

APA gives courts clear direction to decide all relevant questions of 

law and interpret Constitutional and statutory provisions. Chevron 

deference ignores this directive. Instead of courts using their judgment to independently decide all relevant questions of law, Chevron directs the courts to see their judicial obligation to decide questions of laws in favor of any reasonable agency interpretation. 

In a 2006 empirical study, Cass Sunstein found that whether Supreme Court justices validated an agency’s interpretation of a statute based on Chevron deference hinged largely on ideological factors. He found that both the Supreme Court and the Courts of Appeals apply the Chevron framework based on the judge’s political 

convictions. For example, the most liberal justices are 27 percentage points more likely to uphold liberal agency interpretations of 

law than conservative agency interpretations. Similarly, conservative justices are 30 percent more likely to validate conservative 

agency interpretations of law than liberal agency interpretations. 

Simply put, Chevron deference is a blank check for the Executive 

Branch to exercise its own brand of legislative authority with little 

or no accountability. This is not a government of the people, by the 

people, for the people—it’s a government by bureaucracy. Congress 

should correct this constitutional imbalance by making it clear that 

agencies should not interpret legislative text beyond its plain reading and courts should rigorously scrutinize agency interpretations 

of statutory language to ensure congressional intent is followed. 

Doing so vindicates separation of powers principles and leaves Congress’ legislative role intact. 

It is in this light that I am pleased to join Senators Hatch, 

Grassley and Lee, in introducing the Separation of Powers Restoration Act of 2016. This bill, introduced today, amends the APA to 

clarify that courts may not defer to an agency interpretation of a 

statutory provision or rule. Ambiguities and statute are unavoidable, but when they do occur, courts, not the agencies, must determine their meaning. 

I look forward to hearing from our witnesses, their ideas to address this issue in a way that respects congressional intent and upholds judicial independence. I have one other special guest that’s 

here today, and I would ask the Ranking Member to be on her best 

behavior today because my wife is in the audience. She is normally 

pretty tough on me in hearings like this. So my wife, Cindy—we 

will be married almost 24 years—is also in the audience. 

So with that, I would recognize the Ranking Member Heitkamp 

for her remarks. 

OPENING STATEMENT OF SENATOR HEITKAMP 

Senator HEITKAMP. Thank you, Mr. Chairman, and welcome. I 

just do not know how you have done it for 24 years, but we really 

congratulate you. And we will give special privilege to people who 

wore green. I do not know about the rest of you, but Mr. Cooper, 

you are in good shape. 
3 

Mr. Chairman, thank you so much for holding this hearing. This 

is really a quite heated topic here in Washington, D.C., and I think 

it is always good to get diverse opinions, always good to reexamine 

the law, always good to try and figure out where we are right now. 

And so I just want to make a few opening comments, but I look 

forward to the dialogue. 

When an agency gets a law from Congress to execute, sometimes, 

in fact, many times, there is only one clear way to interpret or approach a statute, but that typically is not the case. In those situations where there is not one, clearway, the agencies have to do 

their best job in determining what was in fact legislative intent. 

As I have said before, the legislative branch needs to do a better 

job when we write laws. For various reasons, we are not always 

clear in our intent or our expectation. Maybe it is because we do 

not want to make the decision and we want to kick the ball and 

the can down the road instead of actually doing the job that we 

were elected to do, which is resolve difficult issues of public policy. 

I think that when we fail to consider a detail in the bill at all 

it becomes very difficult for agencies, very difficult for courts, and 

so my first plea would be that we do a better job, and in fact, when 

we find ambiguities, that we legislate. And one of the reasons why 

you do not see that happening the way it should is because we 

have a system that is in near gridlock in terms of just taking care 

of the peas and carrots, as you will, of legislation. 

And so we are now engaging in a greater way, I think, judicial 

evaluation of the work that agencies do and the work that Congress does. And this is not a role I think that the Supreme Court, 

or any court at any level, particularly relishes, that of trying to arbitrate between some people’s opinion of what happens in a statute 

and the agency’s attempt to pass a statute. 

But Chevron has been law for a long time, and I think that we 

need to appreciate that this was the law that basically evolved over 

a long period of time. And I think in many ways it was a statement 

by Congress that if you want clear direction, you ought to legislate 

clear direction and not count on the courts to be the arbitrator. 

So Chevron, in my opinion, is not a free pass for agencies to do 

as they please. I want to—always popular to quote in these kinds 

of hearings Justice Anton Scalia, who said, ‘‘Any resolution of ambiguity by the administrating agency that is authoritative, that 

represents the official position of the agency, must be accepted by 

the courts if it is reasonable.’’ Reasonableness has been the key, 

and in ‘‘Michigan v. EPA,’’ just as an example, the court determined that the interpretation by an agency not to consider costs 

was anything but reasonable. 

If Congress directs agencies to create policies that are legally enforceable, we should expect them to stay within the parameters 

that Congress has outlined. If they do not, I think the courts are 

ready to step in, and have proven their ability to do so. Replacing 

Chevron with something, I approach with great trepidation. We do 

not know what that is. We have had steady and sure law for the 

last 30 laws, and the legislative process, I think, becomes less certain as we move forward. 

And I think, just to digress a little bit. If you look at what has 

happened with the infamous Waters of the United States, in every 
4 

case they overturned an EPA rule. So no deference. You did it 

wrong. But what happens when they overturn it with a 4–4–1? One 

person now is deciding what is Waters of the United States and everybody is trying to evaluate what he meant in that minority-concurring opinion, if I can put it that way. 

And so it has created great disruption. We are now back in the 

same vein. Instead of Congress legislating, we continue to rail at 

the evils of judicial review, the evils of agencies, the whole while— 

when we should be pointing back at ourselves and say, what is the 

evil of not legislating in a clear manner what we intend the law 

to mean, especially when it is as important as a jurisdictional 

standard of Waters of the United States. 

It is mind boggling, and I think in most States you do not have 

these problems because legislators tend to take their responsibilities seriously. And so I am very interested in this topic, very interested in how change would look for the courts. This is a courtadopted doctrine over a long period of time. They have refused to 

overturn Chevron. There is probably reason for that, even conservative courts. 

And so this is going to be, hopefully, a great discussion, but I am 

going to be asking questions about how would the change be effectuated and how would a change be realized, and if you are going 

to have courts that have complete de novo jurisdiction, do we have 

enough courts to evaluate all the facts? 

And so with that, I turn it back to the chairman, and look forward to the dialogue. 

Senator LANKFORD. At this time, we will proceed to testimony 

from our witnesses. Neomi Rao is an Associate Professor of law and 

Director for the Center for the Study of the Administrative State 

at George Mason University School of Law. Ms. Rao served as Associate Counsel and Special Assistant to President George W. 

Bush. She also worked as Counsel for the U.S. Senate Committee 

on the Judiciary. She clerked for Justice Clarence Thomas in the 

U.S. Supreme Court, and practiced international law at Clifford 

Chance, LLP. 

Charles Cooper is the founding partner and Chairman of Cooper 

& Kirk, recognized as one of the Nation’s top litigators. Mr. Cooper 

has appeared before the U.S. Supreme Court multiple times. Prior 

to entering private practice, Mr. Cooper served in the Civil Rights 

Division of the Justice Department and as the Assistant Attorney 

General for the Office of Legal Counsel. Mr. Cooper clerked for Justice William Rehnquist, later Chief Justice, on the U.S. Supreme 

Court. 

Michael Herz is the Arthur Kaplan Professor of Law at Cardozio; 

is that right? 

Mr. HERZ. Cardozo. 

Senator LANKFORD. Cardozo. I apologize for that—School of Law. 

At Cardozo he has served as Senior Associate Dean and Vice Dean. 

He has clerked for Associate Justice Byron White of the U.S. Supreme Court and is former chair of the American Bar Association’s 

(ABA) section of Administrative Law and Regulatory Practice. 

I would like to thank all of our witnesses for appearing before 

us today. It is the custom of the Subcommittee that we swear in 
5 

1The prepared statement of Ms. Rao appears in the Appendix on page 29. 

all witnesses before they testify, so if you do not mind, please stand 

and raise your right hand. 

Do you swear this testimony that you will give before the Subcommittee will be the truth, the whole truth and nothing but the 

truth so help you, God? 

Ms. RAO. I do. 

Mr. COOPER. I do. 

Mr. HERZ. I do. 

Senator LANKFORD. Thank you. You may be seated. Let the 

record reflect all witnesses answered in the affirmative. 

We are using a timing system today. You will find that this Committee is into more conversation and fact-finding than we are exactly sticking by the letter of the clock law. So we will start with 

Ms. Rao, and we will have a 5-minute clock there that will wind 

down a little bit as we go, and be as close as you would like to, 

but we are not going to stick by it strictly today. How about that? 

Ms. Rao, you are up. 

TESTIMONY OF NEOMI RAO,1 ASSOCIATE PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW 

Ms. RAO. Great. Thank you. Chairman Lankford, Ranking Member Heitkamp, and Members of the Committee, thank you for the 

opportunity to testify on this important issue. My focus today will 

be on the relationship between judicial deference to agency decisionmaking and the extensive delegation of lawmaking authority 

from Congress to the agencies. 

The tremendous growth of the administrative State and the expansion of the powers of the Executive Branch have raised alarms 

at the Supreme Court and elsewhere. Administrative agencies now 

exercise a powerful combination of lawmaking, execution and adjudication functions. Operating under open-ended delegations, agencies have significant discretion as a practical matter to make the 

law. While the executive power undoubtedly includes discretion to 

implement and to interpret the law, the Executive Branch must always act pursuant to statutory or constitutional authority and has 

no independent authority whatsoever to make law. 

The Constitution indeed vests all legislative powers with Congress. The administrative state has required loosening and sometimes the abandonment of these constitutional restraints. Notably, 

the Supreme Court will allow almost any delegation of authority, 

from Congress to the Executive, under its intelligible principle test. 

In addition, the Supreme Court has developed various and somewhat chaotic doctrines of deference to agency interpretations of ambiguous statutes. I think it is difficult to reconsider deference without also revisiting delegation. Deference in part was an understandable reaction to the fact that agencies often operate with a 

significant degree of statutory discretion and so courts hesitated to 

step in to question agency policymaking. 

Yet, delegation to agencies, combined with deference to agency 

interpretations, has allowed for much of the administration to operate outside of the checks and balances of the Constitution. In recent opinions, Chief Justice Roberts and Justices Thomas and Alito 
6 

have each drawn a connection between delegation and deference, 

and indeed, the need for courts to provide an independent check on 

agencies. 

It is interesting to note that both the non-delegation doctrines in 

Chevron are forms of judicial restraint. Although many rationales 

and defenses are provided for these doctrines, I want to focus on 

one formalist assumption for judicial restraint in this area. The 

Court has argued repeatedly that the structural rivalry between 

Congress and the president will keep the branches within their 

constitutional limits. Therefore, because Congress and the president compete for control over lawmaking, Congress will not delegate too much. 

In this understanding, courts can leave enforcement of the nondelegation principle to the institutional competition between the 

branches. Similarly, the Court, and in particular, Justice Scalia, 

have defended Chevron deference on these same grounds. In a case 

from a few years ago, he argued that deferring to agency interpretations would not allow Congress to enlarge its own power. 

And so both the flaccid non-delegation doctrine and Chevron deference are judicial approaches that assume the political rivalry between Congress and the Executive will adequately protect constitutional limits without vigorous judicial review. Yet it turns out that 

in a modern administrative state, this assumption is mistaken or 

at last significantly incomplete. In addition to transferring significant authority to the Executive, delegation has fractured the interest of Congress as an institution because in part, it provides an opportunity for Members of Congress to influence the administration. 

This dynamic stands at odds with what I have termed the collective Congress, which in some ways is an analogy to the unitary executive. 

Quite simply, Article 1 vests all legislative powers here in a Congress, not in one House committee or member. Collective lawmaking is really the cornerstone of representative government. It 

provides the mechanism by which representatives serving different 

interests come together and enact laws for the general good. 

This collective mechanism also aligns the interest of lawmakers 

with the institution of Congress. Delegation, however, unravels the 

collective Congress and it undermines Congress as an institution. 

And when that happens, Congress may fail to check the overreach 

of the Executive, and then judicial deference compounds this and 

simply reinforces the problem. 

So if Members of Congress and agencies are more likely to 

collude rather than compete over administrative discretion, the 

structural rivalry between the branches will not work to limit 

power. And when the structural checks fail to constrain, judicial review becomes all the more imperative. Judicial power indeed includes the power and the duty to exercise independent judgment 

when reviewing agency actions and interpretations. 

The deference framework, such as it is, requires serious consideration by the courts and perhaps by Congress through reforms of 

the Administrative Procedure Act (APA). Yet, I would point out 

that the courts cannot remedy the problems of administrative overreach on their own. Judicial review plays an essential part in keeping the branches within their constitutional limits. Judicial review 
7 

1The prepared statement of Mr. Cooper appears in the Appendix on page 44. 

is not the exclusive mechanism for this. The political branches have 

far more effective means to check each other, and real reform will 

require action from Congress, the Executive and the courts. 

Thank you. 

Senator LANKFORD. Mr. Cooper. 

TESTIMONY OF CHARLES J. COOPER,1 PARTNER, COOPER & 

KIRK, PLLC 

Mr. COOPER. Thank you, Chairman Lankford, and thank you, 

Ranking Member Heitkamp. It is a real pleasure to be here, and 

I want to thank both of you for inviting me to discuss this very important subject matter this morning. 

As Chief Justice Roberts has recently lamented, the Framers 

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

our economic, social and political activities. The Chief Justice 

added a warning about the danger posed by the growing power of 

the administrative State, and the danger he had in mind was the 

danger to our liberties, our individual liberties that the separation 

of powers was designed by the Framers to protect. 

The modern administrative state has become a sovereign unto 

itself, I would submit to the Subcommittee, a one-branch government whose regulatory grasp reaches into virtually every human 

activity. The focus of my remarks this morning will be on Chevron 

and Seminole Rock, two judge-made doctrines of judicial deference 

to agencies that have placed the administrative state’s regulatory 

power, I would submit to you, on steroids. 

Now, Chairman Lankford has previously described those doctrines and I will not repeat that here in the interest of time. But 

I will say that both of the doctrines have been extended to the full 

reach of their logic in the decade since they were announced. Time 

is too short to walk through the various precedents following Chevron and Seminole Rock, but the bottom line, I submit to you, is 

that these two cases, and their progeny, have transformed the administrative state into a kind of super court, vested with the last 

word—binding even on the Supreme Court—as to the meaning of 

ambiguous statutory and regulatory provisions in those areas 

where those doctrines are applied. 

Since the early part of the 20th Century, the administrative state 

has been permitted to accumulate and exercise legislative, executive and judicial power, despite the Constitution’s careful and exclusive allocation of these powers to the Congress, the president 

and the courts. And, although the powers wielded by the administrative state are vast, it is essentially politically accountable neither to Congress, nor for the most part, to the president. 

Chevron and Seminole Rock exacerbate these serious separation 

of powers concerns by ensuring that the administrative State also 

largely escapes meaningful legal accountability to the courts. I believe that these doctrines of deference are at war with the Constitution’s separation of powers, and for that matter, also with the 

original design of the APA itself, as Chairman Lankford alluded to 

in his opening remarks. 
8 

Turning first to our Constitutional system. As Alexander Hamilton wrote in the Federalist No. 78, the interpretation of the laws 

is the proper and peculiar providence of the courts. Accordingly, it’s 

been clear, at least since ‘‘Marbury against Madison,’’ that the authority to conclusively say what the law is is a judicial power, one 

that Article 3 vests exclusively in the judicial department, not the 

executive. And since the Constitution does not give the legislative 

branch any share of the judicial power, Congress cannot delegate 

that power or any part of it to an agency. 

It follows, I would submit to you, that the courts must retain the 

sole authority to issue binding interpretations of law. Chevron and 

Seminole Rock, by licensing the wholesale transfer of this authority 

to agencies, are at war with Article 3. To be sure, this analysis assumes that when an agency purports to resolve a statutory or regulatory ambiguity, it is exercising interpretative—and by that I 

mean judicial, essentially judicial power. 

And there are some scholars and jurists—and I think we will 

hear from one momentarily—who dispute this assertion, arguing 

instead that in such cases the agency is exercising legislative authority implicitly delegated by Congress, and I too agree that that 

is a much more reasonable way to understand the rationale of 

Chevron. 

But I think that any attempt to justify Chevron and Seminole 

Rock on that ground runs headlong not into Article 3, but into Article 1 of the Constitution, which vests all legislative powers exclusively in Congress, powers that under the original design of the 

Constitution cannot be delegated. 

And I have just another minute or so, Mr. Chairman, if you will. 

Senator LANKFORD. Yes, sir. 

Mr. COOPER. And although the non-delegation doctrine has lain 

largely dormant since the 1930s, we just heard that the Supreme 

Court’s continuing reluctance to police the line drawn by the Constitution between legislative and executive power cannot deprive 

Congress of its authority—indeed, I would submit to you its responsibility—to recognize and maintain that critical constitutional 

boundary. That is equally the responsibility of this Congress to do 

so. 

The constitutional problems created by Chevron and Seminole 

Rock, as I mentioned earlier, are of the judiciary’s own making. 

Congress never intended that the courts defer to agency legal interpretations. Indeed, I think that much is plain from the text of Section 706 of the APA previously quoted by the Chairman. It instructs the reviewing court to decide all relevant questions of law, 

to interpret any statutory provisions and determine the meaning of 

the terms of an agency action, such as a regulation. 

That language is imperative, commanding the that courts shall 

decide all questions of law. Yet under Chevron and Seminole Rock, 

the agency under review, not the reviewing court, authoritatively 

decides the relevant questions of law. Chevron and Seminole Rock, 

I believe, it cannot be reconciled with the original design and the 

test of Section 706. 

I want to close by urging Congress, and I think welcoming Congress’ consideration of this important question and congressional 

reforms designed to abrogate Chevron and Seminole Rock for those 
9 

1The prepared statement of Mr. Herz appears in the Appendix on page 70. 

reasons. I do not think there can be any question that Congress 

has the power to do so. Both Chevron and Seminole Rock purport 

to be rooted in the background presumption of congressional intent 

to delegate these authorities to the agencies. 

So Congress clearly has the power to rebut that presumption by 

language, language that this Committee and this Congress will 

have to frame in a way even more explicit than Section 706 already 

is so that it is inescapably clear to the courts that deference is not 

what Congress contemplates. 

And thank you, Mr. Chairman. Thank you again, Ranking Member. 

Senator LANKFORD. Thank you. Mr. Herz. 

TESTIMONY OF MICHAEL HERZ,1 ARTHUR KAPLAN 

PROFESSOR OF LAW, CARDOZO SCHOOL OF LAW 

Mr. HERZ. Chairman Lankford, Ranking Member Heitkamp, 

Members of this Subcommittee, it is an honor to appear before you 

today. I have been teaching and writing about administrative law 

for almost three decades, and like all professors of administrative 

law, I have spent an inordinate amount of that time grappling with 

Chevron. Whatever other effects Chevron may have, it has been 

great for law professors. 

And I am suspicious of, but reconciled to, Chevron. I am suspicious because, exactly as the chairman said in his opening remarks, judicial review of administrative action, in particular judicial review to ensure compliance with statutory limits and commands, is an essential pillar of our constitutional democracy. One 

would not want to send agencies out into the world to do what they 

want. They are creatures of statute. They have only the authority 

Congress has given them. They must comply with congressional 

limits, and judicial review is essential to ensure that they do so. 

I completely agree with all that. That is a long-standing understanding of how our system works. And the question is whether 

Chevron throws that overboard or not, and I would suggest it does 

not, that properly read and applied, Chevron retains and respects 

the courts’ essential role in this regime. The doctrine is messy. It 

is inconsistently applied, like all doctrines, but at the end of the 

day, Chevron is not the threat that has been described. 

I want to just say a couple of things drawing on my submitted 

testimony, and then a couple other things, and then I will stop. If 

Senate testimony had titles, mine would be ‘‘What Chevron is Not.’’ 

Let’s think about the real Chevron, not a caricature. And so a few 

things that Chevron is not. 

First, Chevron is not judicial abdication. First of all, there are a 

whole bunch of situations where Chevron just does not apply. 

There is an agency interpretation out there and the court more or 

less ignores it. At the Supreme Court level, that is the vast majority of cases. In lower court level, that’s less true, but still true. 

Second, when Chevron applies, courts do a lot of work in what 

we call step one, the step where they are trying to figure out, did 

Congress address this issue? They do more work—they spend more 

time in step one than you would think from reading Chevron itself, 
10 

where Justice Stevens, in, I think, a completely infelicitous phrase, 

says that the court should determine if Congress had an intent on 

‘‘the precise question at issue,’’ and if there is nothing, we are off 

to step two, and defer. 

Congress almost never had an intent on the precise question at 

issue, at least in a case that is actually litigated to judgment. That 

is why there is a lawsuit. And Congress cannot be expected to anticipate, to have a clear specific intent about, every application of 

the statute. But Congress still may have answered the question, 

and courts realize that and spend a fair amount of time in step 

one. That is what courts should be doing. 

And finally, step two, when deference kicks in, it does not involve 

handing the judicial role over to agencies, as Mr. Cooper said. My 

view is that what is happening in step two is not fairly called interpretation. A court gets to step two because it concludes the statute 

does not answer the question. ‘‘We could come up with an answer,’’ 

says Justice Stevens—paraphrasing—in Chevron, ‘‘but we would be 

making it up.’’ There is just not an answer in the statute, and at 

that point, when law has given out, it is not really a legal question. 

There is a policy judgment to be made, and if it is a policy question, better it should be made by the agency, which has some expertise and electoral accountability and is exercising delegated authority from Congress, than by courts. 

For that reason, I do not think there is anything unconstitutional 

about Chevron. But the key thing that I think is emerging from the 

testimony of all three of us today is actually a certain common 

ground about where the problem lies. The issue is about delegation 

more than it is about interpretation, and this resonates a little 

with the Ranking Member’s opening comments. The constitutional 

argument based on Article 3, I think, is completely meritless, and 

I am not sure how strong either of my fellow panelists think it is. 

They seem more focused on the Article 1, non-delegation argument. 

That seems to me a completely plausible argument. Absolutely, 

what Chevron rests on is a frank acknowledgement that Congress 

hands a lot of power to agencies and does not answer a lot of questions. 

Now, is that constitutional? The other two witnesses think it is 

not, and of course, the court’s doctrine here is famously toothless. 

I disagree, but that is not our question today, the non-delegation 

doctrine. The key point from a Chevron point of view, if I could just 

take one more minute—the key point is to see that if you get rid 

of Chevron, if all review is de novo and nothing else changes, statutes are still just as unclear. Law still gives out. 

It just means that courts will be inventing answers and calling 

it interpretation instead of agencies. That does not give Congress 

any more power. It arguably gives Congress less power. And the 

underlying problems are exacerbated rather than ameliorated. I 

will stop there. Thank you so much. 

Senator LANKFORD. Thank you, all three of you. It will just be 

an open dialogue today, back and forth, and so feel free to jump 

in at any point. We will be able to talk through this. 

Mr. Herz, let me pick up right where you left off there. Your 

statement there about courts will invent answers without a Chevron type structure, what would prohibit courts, when they get to 
11 

a decision where they have stated in the past for Chevron that the 

policy questions, the agencies have the greatest expertise in that 

area, the courts are more generalists, what would deter a court 

from instead of inventing an answer to saying this is an answer 

that Congress did not address, and so Congress needs to write a 

statute on it, so until Congress writes a statute on it, there is not 

a law on this? 

Mr. HERZ. Well, obviously, the question is going to arise in different circumstances. In many settings, it is clear that Congress 

has given regulatory authority to the agency. Take the Waters of 

the United States, or take Chevron itself, and the question is, what 

is the flexibility the agency has and what is the scope of that authority? Someone has to say what are Waters of the United States? 

The statute just is not much help. What the statute actually says 

is you need a permit for a discharge into navigable waters, and 

then weirdly, it defines navigable waters as waters of the United 

States. 

The legislative history suggests that what Congress wanted to do 

was reach to the greatest extent of its constitutional authority, but 

that is the legislative history. There is just not a lot to work with 

there, whether you are an agency or a court, and the court cannot 

just say, oh well, the agency has no authority under the Clean 

Water Act. It is inescapable that it has to regulate. 

Senator LANKFORD. There is not the ability for the court to be 

able to step back and say this is unclear at this point, the Congress 

needs to give clarity on this, so we cannot move beyond this point 

of what has been done until we get greater clarity? Going back to 

the Ranking Member’s statement before—— 

Mr. HERZ. Right. 

Senator LANKFORD [continuing]. That Congress has the responsibility to be able to define this, if Congress failed on its responsibility, shouldn’t Article 3 push back and say Article 1 needs to do 

their job? 

Mr. HERZ. Yes. I think there are two approaches the court might 

take if it shared that concern. One is in the setting where the statute applies directly to private conduct as opposed to a statute that 

tells the agency to do something, and then the agency—— 

Senator LANKFORD. Correct. 

Mr. HERZ [continuing]. Statute that applies to the agency, there 

is a due process issue. A really vague statute, like a really vague 

regulation, if we just do not know what it means, is unconstitutional under the due process clause, indeed that could be a regulation or a statute. 

But the more common Chevron setting is we are talking about 

what this term means as it applies to the agency, and then it is 

just a non-delegation issue. What you are suggesting is a non-delegation doctrine with teeth. The court is saying to the Congress, you 

just did not decide the question, go back and do it right, because 

this—— 

Senator HEITKAMP. I think in the Courts’ experience, many times 

when they do do that, they do not get an answer. I am going to 

point you to a case that I was involved in called ‘‘Quill,’’ the famous 

multi-state tax case. The court deferred to Congress and said, yes, 

we can make a determination whether this is in violation of the 
12 

Interstate Commerce Clause. We are going to do that, but the Congress has control over the Interstate Commerce Clause. That case 

was decided in 1992. 

We now have had a whole growth of remote sellers accessing 

markets in competition with other sellers and no answer. And recently, Justice Kennedy, in a concurring opinion on a tax anti-injunction case, basically said, we are tired of waiting for Congress. 

And so you take a look at all these contentious issues, whether it 

is Dodd-Frank, whether it is the Affordable Care Act, they are full 

of ambiguities that, quite frankly, if I were on the Court, I would 

be tired of cleaning it up. I would be tired of hearing it. I would 

be saying Congress is not doing its job under delegation. 

Now, Mr. Cooper, you said something that I thought was really 

interesting. You said this is binding on the Supreme Court. I had 

to laugh when we were talking about Cardozo, because every firstyear law student loved reading a Cardozo opinion because they 

were all so well written and fun. So he is fairly famous for firstyear law students. 

But also first-year law students, says none of this is binding. 

Chevron is not binding on the Supreme Court. The Supreme Court 

could reverse Chevron tomorrow. They could change the doctrine 

tomorrow, right? I mean, can we all agree as lawyers that is true. 

Mr. COOPER. True. 

Senator HEITKAMP. So why don’t they? If it is in violation of Article 3, which should be the province and the concern of the Supreme 

Court in terms of their range of responsibilities, why don’t they reverse Chevron? They have been asked many times to do that. And 

it has been conservative and liberal courts that have dodged that 

question. 

Mr. COOPER. Ranking Member Heitkamp, I find that many of 

your comments resonate very well with me. I completely agree that 

much of the problem in this area has been Congress’—— 

Senator HEITKAMP. It is right here. 

Mr. COOPER. It is Congress’ inability really to focus and answer 

difficult political public policy questions. And that has led to, in the 

absence of a non-delegation doctrine, Mr. Chairman, essentially, to 

wholesale legislative lawmaking at the agency level in a way that 

I do not believe is consistent with our separation of powers. 

You are right, the Chevron case is judge made. It can be judge 

unmade. I cannot really tell you why it is that the courts have, in 

my opinion, through Chevron, through Seminole Rock, abdicated 

their judicial responsibility, but I do believe it has led to a problem 

of constitutional dimension that is well within this body’s authority. 

When I say that agency interpretations or agency lawmaking are 

binding on even the Supreme Court, well that is the necessary result of Chevron if it is honestly applied. If you are deferring to an 

agency’s decision—— 

Senator HEITKAMP. But if the court did find that in violation of 

Article 3, wouldn’t the court make a correction? Wouldn’t the court 

reverse Chevron? 

Mr. COOPER. Yes. 

Senator HEITKAMP. I am with Mr. Herz. I think that the issue 

here really is delegation. It is really who all ultimately gets to de-
13 

cide. And I think that the biggest problem that we have is the lack 

of political courage and political will to make the tough decisions. 

We move them to the agency. The agency looks at this, and depending upon how you view the agency, either says we have to decide this or goodie, we get to decide this. 

And so the agency now has built up a whole lot of we are not 

going to ask Congress for clarification. We are just going to do it 

because we are not going to get it from Congress. So we do, I have 

a real concern about delegation of legislative authority. 

Mr. COOPER. Yes. 

Senator HEITKAMP. I do not discount that at all. My problem is 

that when we look to who should be fixing that, it should be the 

entity, the branch of government that is being infringed upon, 

which is the U.S. Congress. And it should not be about telling the 

Judiciary what judicial doctrines they should be applying, but telling ourselves it is time to do our job. 

Mr. COOPER. Well, not—— 

Senator HEITKAMP. And so why is that not the answer, I guess, 

rather than telling the court, you cannot apply Chevron? 

Mr. COOPER. I think Chevron tells the agencies that Congress’ 

job is yours and we are not going to interfere. I think that is what 

Chevron says. And I very much welcome Chairman Lankford’s observation that when, as Professor Herz puts it, when a statute does 

not answer the question, when law has given out—in other words, 

Congress has not legislated on the subject at issue—it would be, in 

my opinion, the proper judicial response to say, there is no law, 

there is no law before me as a judge to apply. 

And that is a delegation issue, to be sure, that would require a 

robust non-delegation doctrine. But the Congress would simply 

say—excuse me—the court would simply say the agency’s answer 

is the agency’s answer, it is not Congress, and Congress is the one 

that has Article 1 obligation and authority, an obligation to decide 

this question. 

It is Congress who is politically accountable to the people, and 

if they do not like what Chairman Lankford or Ranking Member 

Heitkamp have done, they can call them home and do something 

about it. That is not the case with agency legislation. So yes, that 

would be, to my mind, Mr. Chairman, a perfectly legitimate, and 

the appropriate judicial response. When law has given out, there 

is no law. 

Senator LANKFORD. So the challenge that we have is Congress 

only acts when it has to. If there is a deadline, if there is some imposing reason to act, then Congress acts because the pressure of 

the American people come on for action. And Congress has found 

over the previous several decades the ability to be able to hand off 

to agencies, to someone else, to take that action. 

And the challenge is now, I think the courts are also doing the 

same thing. Courts are now saying, well, this is also something 

handed to us, but we are going to hand it to someone else as well. 

And everyone is passing around the hot potato here, when ultimately, we have to push this back to do your job, do your job, do 

your job. If you do not do your job, no one else can do your job. 
14 

And Congress is not doing its job because it has found a way to 

be able to hand off to the courts, or to the Executive Branch, a way 

for their job to be done by someone else. 

Mr. COOPER. And if the courts stopped playing that game, and 

if Congress required them to do so, to essentially use the common 

canons of statutory construction to decide ambiguous questions, 

and sometimes to decide there is no law here, law has given out, 

if they did that, then there would be no choice but for it to come 

back to Congress and this body to—— 

Senator LANKFORD. And put the pressure back on everyone to actually get the task done. And that becomes a key issue. The challenge that I have with this as well is when the Court treats statute 

as they do the Constitution—and that is open to interpretation in 

the sense of, the Constitution, of course, was a broad written document, 200-plus years old. Of course, they could not speak to cars. 

Of course, they could not speak to airplanes. 

And so you look at an EPA Clean Air Act, or a Clean Water Act, 

and say, well, Congress, of course, did not know about this 40 years 

ago, so what would they have done if they would have known about 

that? When this begins to open up and to say there has not been 

a policy statement made on this because at the time that Congress 

did not know about this or chose not to act on this statement, it 

seems to be an interpretation of the process for the court to say, 

what did the Congress mean if this would have been true at the 

time rather than what does the policy say? 

Does that make sense? 

Mr. COOPER. It does to me. 

Senator LANKFORD. Mr. Herz, go ahead. 

Mr. HERZ. So I will just make three very quick points in response 

to this. First, to my ear, Mr. Cooper is asking for a level of legislative specificity which simply is impossible to achieve. That is to 

say, law will always run out at some point. Congress cannot possibly—no drafter, no instructor—can possibly anticipate everything. 

If my wife tells me, go out and get some milk, and now I am at 

the store and suddenly, wait, a quart, a half-gallon, skim, 2 percent, whole? She did not tell me. Is that unconstitutional? No. I figure it out, that is always going to be the case. And if she said a 

quart, then I still have the skim question, et cetera. There will always be something. And so it cannot be—— 

Senator LANKFORD. Correct. 

Mr. HERZ [continuing]. Just that, any uncertainty means, oh it 

is an unconstitutional statute. We do not want to make your job 

harder than it already is. 

The second thing is that the key thing, I think, to bear in mind 

is Chevron is about the allocation of authority as between courts 

and agencies. And if the problem is over delegation, it does not 

matter which one of those is exercising the delegated authority. If 

the problem is Congress has not decided something, agencies can 

make it up or courts can make it up. That is still a problem constitutionally. 

And then just the third thing, just as you said, Senator Lankford, 

courts can do some crazy things, right? I mean, you are worried 

about agencies, but you can also be worried about courts. The 

Sunstein article you mentioned in your opening remarks, abso-
15 

lutely shows an ideological influence in Chevron, but the question 

is always, compared to what? There is obviously an ideological influence without Chevron as well, and many studies show that. Getting rid of Chevron is not going to abandon, and may actually exacerbate, the ideological influence that is in the courts. 

Senator LANKFORD. Right. 

Senator HEITKAMP. Can I just make a point that, Mr. Cooper, 

there is a whole range of decisions agencies make. I would put Waters of the United States over here, because it is a jurisdictional 

question. It is a threshold, baseline question in terms of legally. I 

think legally you have complicated facts given hydrology, given everything that they do. But that is a tough question. 

On the other side is tank car rules, right, tank car rules that say 

we need to make the railroad safe, we are moving a lot of oil on 

tank cars, we need to reinforce these, we did not engage early 

enough, now these are the new standards for breaking in tank car 

rules. 

Does the court really want to evaluate the gauge of the steel of 

the tank car, or do they want to defer to the agency? And I understand the difference between, interpretations of law and the implementations of law. But it goes back to what Mr. Herz is saying, 

those would be two examples. At some point in the middle, the vast 

majority of the issues are going to be in the middle. And if we litigate and kick back to Congress everything in the middle and the 

court says, now Congress wants to rehear this because we just 

passed a law that says if you do not like what the agency has done, 

kick it back to us, I fear for the union given what I have seen since 

I have been here. 

And so, I mean, I think Mr. Herz, your milk example is right on. 

I mean, you forgot organic or—— 

Senator LANKFORD. Except maybe you should just call your wife 

and she would tell you what it is. 

Senator HEITKAMP. She might tell you and then you knew you 

were supposed to get organic. But I think because the regulatory 

world has become so complex, it just becomes so extraordinarily difficult. And that is just my point. 

Senator LANKFORD. Let me make one comment, too. And Senator 

Ernst just joined us as well. I want to bring in Ms. Rao on this, 

because there are different ways—we talk about Chevron. There 

are different ways to do this. The permissible construction that is 

Chevron, compare that to the Skidmore most persuasive and as far 

as the different thresholds of giving deference. Because there will 

be deference. 

I get the milk illustration, except there is a pushback to say at 

some point, I did not get clarity, let me go check in with who originally gave the orders here at this point. When we deal with a most 

persuasive versus permissible construction, what do you think the 

boundaries are of that when you deal with statutes? 

Ms. RAO. I do think Skidmore and Chevron present different 

standards. Because in Skidmore, the Court is really still retaining 

the authority to say what the law is, and they take into account 

the practice of the Executive Branch, or their interpretations. And 

so I think that does leave more power with the courts. 
16 

I think also, in relation to the discussion that we have been having, I think one thing is important to note, which is that this idea 

that when law gives out, either the agency has to make it up or 

the Court has to make it up. I think that in many instances that 

that is not quite right, because there is another answer. I think, 

as Mr. Cooper said, which is, the Court can simply say there is no 

law here, which doesn’t necessarily mean it goes back to Congress. 

It can also just go back to the agency, right, to do something that 

is within the law, and they do not necessarily have to redefine steel 

standards to say that the steel standards are not within the statute. 

So I think it is not the case that you are always replacing judicial policymaking with agency policymaking. 

Senator LANKFORD. Right. 

Ms. RAO. It just may be that there is—— 

Senator LANKFORD. That could be a statement of the State needs 

to rule on this or there needs to be another statute, or you need 

to be within the bounds of the statute. 

Ms. RAO. Right. 

Senator LANKFORD. But this is not spoken to in a specific year. 

Ms. RAO. That’s right. 

Senator LANKFORD. This is not the authority of—— 

Ms. RAO. I think the idea that one or the other has to make it 

up has a very strong assumption that is pro-regulatory, which is 

someone has to do something. And I think in our system of government that is not the case, right, if there is no law under which a 

government actor can act, then nothing happens. And if Congress 

actually wants regulatory action, then they may have to make 

some changes. 

Senator LANKFORD. Senator Ernst. 

OPENING STATEMENT OF SENATOR ERNST 

Senator ERNST. Thank you, Mr. Chairman. I appreciate this. 

This is such an important topic. We are spending a second Subcommittee hearing on this, and I want to thank the witnesses for 

being with us today. 

Mr. Cooper, I would like to start with you, because I want to expand a little bit on this discussion that is going on right now. And 

notwithstanding the legislation that is in front of us today, and 

Senator Lankford has been really championing that, what, in your 

opinion, would be considered the ideal deference balance? A lot of 

different opinions out here, but what would you think is the ideal 

balance? 

Mr. COOPER. Well, earlier, the chairman mentioned, and Professor Rao spoke to, the Skidmore standard. I think the Skidmore 

standard would be an acceptable one to me, because I believe that 

basically it is a court saying, taking all of the available information 

bearing on the meaning of this law in front of me, including the 

persuasiveness of the agency’s analysis, what is the correct answer 

to the question at hand? What is the correct answer? 

The most recent, I think, Chevron decision from the Supreme 

Court was ‘‘King against Burwell.’’ And the Court rejected application of Chevron, and once it rejected application of Chevron on the 

theory that well, this is a question of such surpassing economic and 
17 

political consequence within the statute, we are not going to apply 

Chevron. Well, what was the question then? What is the correct 

legal answer? What is the correct interpretation of that provision, 

36B of the ACA? I think that is the question. 

So what are the typical sources of evidence that the Court calls 

upon to determine the meaning of a statute? I could cite to you the 

traditional canons of construction, because that is what they use, 

for example, at Chevron step one, and that is what they used purportedly—I think, erroneously, profoundly erroneously—in ‘‘King 

against Burwell’’. But the Court purported to apply there the traditional canons of statutory construction to find out what is the correct meaning, not what is a plausible meaning, and therefore, we 

accepted and deferred to it. 

Senator ERNST. And then what, in your opinion, too, would be 

the guidelines as far as a timeframe? If you take a look at an act 

that was passed 10, 20 years ago, and regulatory agencies are continuing to develop regulation for something that was passed so long 

ago, do you see that as an issue? And I would use the Clean Water 

Act and what we see going on with WOTUS right now. 

When does that timeframe start to interfere with OK, well, we 

understand the original construct, the intent of those legislators to 

make sure that waters that were covered were navigable waters, 

well now it has gotten to a point we are including Iowa. 97 percent 

of dry land is now considered waters of the United States. 

Is there a timeframe that should be considered in that, or, how 

would you respond to that? 

Mr. COOPER. I do not really look at it so much in terms of timeframes, as if there is some kind of temporal limit or range within 

which Congress has provided the law that is to be applied. I do believe that the advance of technology and the advance of, information in our understanding sometimes presents new questions that 

old statutes do not answer and that that is why this body is a continuing one. 

And then, obviously, because there are new and pressing questions, regulatory agencies with general jurisdiction over those subject matters will naturally feel they need to provide an answer 

even in the absence of congressional guidance or seizing upon congressional statutes that really do not provide the adequate standards to guide and channel their decisions. 

So I think I grasp the concern that you have here. I do not have 

specific comments, Senator Ernst, on the Waters of the United 

States problem that has come up. Frankly, I have not studied that 

specifically and carefully. I think my colleagues may have. But my 

general answer to you is that in law, new problems arise every day 

in areas in which there is legislation but that that legislation does 

not answer. Then it becomes your job. 

Senator ERNST. I would agree. I think there is a point in time 

and that we can have all kinds of discussions about that, but we 

need to revisit the topics. And I guess my opinion would be that 

it is Congress’ job to take a look at the way things have progressed 

through the years. Are we still following the original intent of the 

law? If not, Congress needs to revisit that, not an agency making, 

10 years of changes to rules and regulations to keep up with the 

times. 
18 

I think at some point it needs to come back to this body for a 

second look. And then we set now the new intent of whatever act 

we might decide to pass. 

Mr. COOPER. And may I—— 

Senator ERNST. Yes, go ahead, please. 

Mr. COOPER. I just wonder if on this question of navigable waters 

there was a time when that word was perfectly serviceable in a 

regulatory context and in a judicial context. What led to the events 

that now allow that word to cover 97 percent of your State’s dry 

land? 

Senator ERNST. Exactly. 

Mr. COOPER. Something is not right there. And I think that was 

an aggressive interpretation and application beyond the place 

where Congress could reasonably have intended for that word to 

extend. So if that is the case, then it seems to me that it may well 

be Congress’ obligation now to define it with greater specificity. 

Senator ERNST. Absolutely. I agree. And do you mind if I—— 

Senator LANKFORD. Go ahead. 

Senator ERNST. One more. I am sorry. We will keep going, because I want to jump in a little bit further there. But in talking 

about the change and taking legislation—and it eventually changes 

over the years or is implemented—but just 3 days before the Supreme Court overturned the utility Mercury and Air Toxic Standards (MATS) rule, EPA Administrator McCarthy bragged to HBO’s 

Bill Maher that the Supreme Court’s decision would not matter because it took 3 years to get the Supreme Court to act, and by then, 

her quote, ‘‘The investments have been made’’. 

Unfortunately, most of our Nation’s facilities were forced to already comply with this rule before it was overturned by the Supreme Court. And I point out this quote because this is the main 

concern that I have with deference, is that we have agencies that 

are able to really push their own agenda knowing that the investments will be made before there is time for the court system to 

react to that. So they really are getting their agenda through without going through the court system. They can get those investments made. 

And that is exactly what I think will happen with WOTUS, is 

that people will go ahead and make the investments and they will 

start putting the regulations in place before it actually makes it 

through the judicial system. 

Any thoughts on that? And I would open it to any of you. 

Senator LANKFORD. Can I make just a quick comment on that to 

add to what you are saying on it? Christopher Walker is assistant 

professor of law at Ohio State University. Did a study, and he just 

basically inventoried seven different Federal agencies and their 

regulators there, asking questions. He found that of the regulators 

that are in those seven agencies, 94 percent of them knew the term 

‘‘Chevron deference’’ by name. 

So what Senator Ernst is talking about, to say that there is this 

sense within the agencies that they are familiar with this doctrine, 

know it, and know that they are promulgating rules, are aware 

that, hey there is a chance I am going to get Chevron deference on 

this, that is a big issue when you’ve got 94 percent of the folks 

making regulations that know what Chevron deference is—— 
19 

Senator ERNST. I understand that. 

Senator LANKFORD [continuing]. Specifically. So I apologize for 

interrupting. 

Senator ERNST. Yes. No, thank you very much. 

Senator LANKFORD. I wanted to add to that. 

Ms. RAO. Yes, Senators, I do have some thoughts about that, 

which is, I think you are absolutely right that it is the case agencies often rely on the fact that there is a long lag for litigation, and 

even at the end of the litigation process, there is a good chance 

that the courts will defer to what the agency has done. And even 

if they do not, as you say, the investments have been made. 

I would also want to flag another problem, which is that agencies 

often can take actions that affect private industries without going 

through rulemaking. So they have all sorts of ways of kind of forcing investments that are not even challengeable in court, right? So 

you have the problem of regulating by speeches or by, FAQs that 

they post on their website. 

And if you talk to people in industry, they say, well, we need to 

do what the head of the agency said in their speech, even though 

it has not gone through any process and there is no way to challenge it. And so, there is a problem of deference. And there is also 

a problem that these agencies just act like general lawmaking bodies where they can say something and expect people to comply, 

which is, I think, an even further problem. 

Senator ERNST. Right. Certainly. Thank you. Mr. Herz. 

Mr. HERZ. So I am not going to dispute that agencies sometimes 

get out of control. The agencies do, right? All institutions abuse 

their authority from time to time. But I think that some of the 

most recent comments have moved us away from, and are not good 

examples of, whatever the abuses produced by Chevron may be. 

So to the extent agencies are regulating by speeches or regulating by press release, that may be a problem. It is not a Chevron 

problem because those do not get Chevron deference. The black letter law is no court would give Chevron deference to those. So if 

they have an impact, it is not because of Chevron. 

Likewise, Michigan against EPA may well illustrate something 

that went profoundly wrong, but the court set aside the regulation 

in Michigan against EPA. It did not defer, and therefore, it cannot 

be a very good example of a Chevron problem. It may be an example of another problem, but Michigan against EPA reminds us, as 

I said in my initial comments, that actually courts do set aside 

agency action under Chevron. It is not a complete rubber stamp. 

And then with regard to WOTUS, obviously, the 97 percent figure is pretty astonishing. I am surprised by it, but I defer, so to 

speak. Assuming it is true, I think a court will and should strike 

down that regulation under Chevron. If it really is affecting 97 percent, it is inconsistent with Congress’ intent and with the statute. 

And so that is the work Chevron does. Some teeth remain in judicial review, notwithstanding Chevron. 

Senator ERNST. Thank you. Thank you very much. 

Mr. COOPER. May I just make the point that I really do disagree 

with the notion that, for example, the regulation at issue in ‘‘Michigan against EPA’’ was not a Chevron problem? I do believe that 

Chevron is well known by every regulatory agency, that Chevron 
20 

essentially licenses those regulatory agencies to not try to find the 

correct answer, and I understand that that cannot be found with 

respect to a lot of the enactments, Madam Ranking Member, that 

Congress puts forward. 

But with respect to even those where there is a correct answer, 

that is not something the agencies have to find or even have to look 

for. They only have to look for a plausible answer, and I do believe 

that that ensures that they will regulate to the limits and beyond 

the limits of what is plausible in obedience to whatever their regulatory agenda is. 

Mr. HERZ. I half agree with that. 

Mr. COOPER. And yes, there will be occasions when they so far 

exceed it that they go beyond even what is a plausible interpretation of Congress’ meaning, in the case of ambiguity, that the courts 

will say, well, no, we have to step in here. But that is a Chevron 

problem, in my opinion. 

Mr. HERZ. If I could just very briefly half agree with what you 

said, even though I would be expected to completely disagree. 

Senator LANKFORD. Is that a 49 percent agree or a 51 percent? 

Mr. HERZ. I think it is 51. In the interest of bipartisanship, it 

is 51. As everybody knows, there has been a lot of empirical work 

done to try and find a Chevron effect in the courts. Are courts, in 

fact, upholding agencies more often or less often than before Chevron or than in a hypothetical world without Chevron? And by and 

large, those findings have indicated that if you look at outcomes, 

you do not see a significant effect. In the Supreme Court, absolutely not, but the Supreme Court is the Supreme Court. They do 

what they want. 

But even in the lower courts, which is a more complicated picture, but basically, if you just count outcomes, it seems like Chevron does not have much impact. I will say, there is a lot of work 

that suggests it does not matter what the standard of review is. 

Agencies get upheld 70 percent of the time regardless of standard 

of review, and if that is right, we should just end the hearing now 

and all go home. I mean, we are wasting our time. 

The obvious conclusion to this is to say, ‘‘ah, see, Chevron does 

not matter. Courts are not giving away the store’’. The response is 

exactly what Chuck was saying, and the Chris Walker article you 

cite as an example of this. There is an older article by Don Elliott 

that makes the same point—I forget the cite; Don Elliott was general counsel of EPA in the first Bush Administration—that says 

agencies are taking more and more aggressive interpretations because they know they are protected by Chevron. 

And to the extent that is happening, then if the affirmance rate 

remains the same, that does not mean Chevron is not having an 

effect. Chevron is having an effect. And that is where one would 

really need to look. I think the Walker article is a good one. I think 

more work needs to be done there to get an empirical answer, but 

that is the critical point. 

Senator ERNST. Thank you very much. Thank you, Mr. Chairman. 

Senator PORTMAN. First, I want to thank Chairman Lankford 

and Ranking Member Heitkamp, one for holding this hearing, and 

for continuing to probe on this issue, as we have in a number of 
21 

other hearings, but second for their deference to other Members of 

the Committee to be able to ask questions, because, we all have 20 

things going on at once. 

But this is a fascinating topic for us to grapple with. I just left 

the Farm Bureau where we talked about Waters of the United 

States, and you know, we talked about the EPA regulations, and 

there has been discussion today, I am sure, about immigration and 

the Affordable Care Act and the fact that the agencies in promulgating their rules are playing a bigger and bigger role in our lives. 

I thought your Ohio State professor analysis of the number of 

people in the agencies who know what is going on with regard to 

the specific issue of Chevron deference was interesting, but the fact 

is, it is almost like we have this fourth branch that is playing a 

bigger and bigger role in all of our lives. 

So we have talked a lot about Chevron today. I think that is important. I think the Office of Information and Regulatory Affairs 

(OIRA) doctrine is just as important, and I think that is something—if you do not mind, I would like to probe just for a second. 

There is a bill that I have introduced in every Congress that I have 

been here in the Senate, and it is called the Regulatory Accountability Act. Some of you have been involved with that, and I appreciate your work on it. It was something that this year Senator 

Angus King and I introduced. It is bipartisan. It has been in the 

past. And it is really the first time I think in almost a half century 

that we have had some significant reform, if we can get it passed 

in the EPA, which is really where a lot of this should rest in my 

view. I was looking at the Administrative Procedure Act and, what 

did it mean and how does it apply to our current situation? 

The judicially created deference in Chevron, Seminole Rock, 

OIRA and so on, I think has taken us away from some of the 

checks and balances that our Founders intended, but also what is 

in the APA. So under the Regulatory Accountability Act, judicial 

deference to the agency’s interpretation of its own regulations 

changes. It is not automatic. 

And I think this again is really an important part of what we are 

talking about that does not get as much attention as the agency 

in being able to interpret its own regulations. It would be based on 

the persuasiveness and the thoroughness of agencies’ reasoning behind it. It would also repeal this OIRA deference in that regard. 

And this bill, by the way, has the support now of over 80 groups, 

including some you would expect, like the National Association of 

Manufacturers, the Chamber, the Business Roundtable, but also a 

lot of scholars, a lot of former public officials, some officials who 

have been involved with OIRA over the years on both sides of the 

aisle. 

So my question to you, I guess, would be—and if you do not 

mind, Mr. Cooper, since I know you have been spending a lot of 

time on this issue, Section 706 of the APA again, it is the law of 

the land—says, quote, ‘‘The reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of 

an agency action.’’ 

That is in law. And Scalia wrote in ‘‘Perez v. Mortgage Bankers 

Association,’’ that the Supreme Court has been quote, ‘‘Heedless of 
22 

the original design of the APA’’ in, quote, ‘‘its elaborate law of deference to agency interpretations of statutes and regulations.’’ 

We have talked a lot about Antonin Scalia in the last few weeks. 

This is one where I think he got it right, that you need to go back 

to the APA and look at what it says, and it does not seem to fit 

with some of this. So I guess I would just ask you, Mr. Cooper, do 

you think that the APA itself is, as it was originally intended and 

written, is at odds with Chevron, Seminole Rock and for that matter, the deference that is established in OIRA? 

Mr. COOPER. Senator Portman, thank you for that question. And 

yes, I do. And I have tried to outline my thoughts in some detail 

in the written submission that I have provided to the Subcommittee. But I do think the language of 706 is quite imperative. 

It makes clear that it is the courts’ responsibility; the courts shall 

interpret all statutes. And it is equally clear with respect to agency 

actions, including, obviously, regulations. 

I find it extraordinary, really, extraordinary that the Chevron 

doctrine and the Seminole Rock, now Auer, doctrines have proceeded with no one really particularly noticing that this is very difficult to square with the plain language of the APA, the congressional statute that governs the administrative process and judicial 

review of the work of the administrative agencies. 

So yes, I do agree. I have suggested earlier in my testimony that 

I believe that amending Section 706 now is in order to use language that cannot be ignored and cannot be escaped by the courts 

to abrogate both Chevron and Seminole Rock. 

Senator PORTMAN. Well, I appreciate that, and that is what we 

intend to do in the Regulatory Accountability Act, is to make more 

clear what I think is already clear, as Justice Scalia has said, in 

the very language of the APA. But, frankly, it is a new world, and 

there have been new, as I said, fourth estate intrusions on what 

I think is rightfully both in the legislative and in the judicial 

branch, and that is understandable. 

It is a more sophisticated economy and society and there are lots 

of issues that have come up. But the question is, how can you be 

sure that we do have that appropriate balance that, again, I think 

goes back to the Founders, but certainly you can take it right back 

to the Administrative Procedure Act and Section 706. 

On this issue of notice and comment rulemaking, someone said 

that the agencies rely on Seminole Rock deference to expand their 

authority without going through the process of notice and comment. You may have talked about this earlier today, and I apologize, I did not hear it, but do you think that the Seminole Rock deference influences the behavior of agencies or agency staff, and do 

you think it creates an incentive for agencies to take advantage of 

ambiguous terms and statutes that they are asked to administer? 

Mr. COOPER. Senator Portman, I certainly do. I do not see how 

it could not, I mean, human nature being what it is. The notice and 

comment procedure required under the APA is one that is designed 

to ensure that the agency solicits and considers all of the information that it can from the public in order to ensure that its decisions 

made pursuant to congressional statute are reasonable, never arbitrary and capricious, and are as close to congressional design as 

possible. That is its purpose. 
23 

If to whatever extent under Seminole Rock it can regulate in a 

vague and general way, it then has freed itself from essentially the 

binds of notice and comment rulemaking because once it has a general regulation and it is free under Seminole Rock to interpret that 

regulation in a way that the courts must defer, it has given itself 

an entirely new flexibility to effectively make law. 

And I cannot cite to you—perhaps my colleagues on either side 

who study this day in and day out—I am always intimidated frankly when I am with the professors of administrative law. 

Senator HEITKAMP. You do not seem very intimidated. 

Mr. COOPER. I do not study the agencies day in and day out. I 

sue them day in and day out, and so Chevron, honestly, is typically 

my enemy in that litigation. And I confess my bias upfront, but I 

cannot cite to you particular episodes when Seminole Rock has 

been abused in the fashion that I am suggesting it has, but I do 

agree with Justice Scalia that it is happening. 

Senator PORTMAN. I am over my time here, but I will say, the 

other issue that we—at least I have not addressed, that I saw in 

Ms. Rao’s testimony, you addressed, which is, right back to us. I 

mean, Congress has, I think you said ‘‘passed the buck.’’ Because 

we do live in a more complicated, difficult world, and it is easier 

to say, we are not going to figure out how to deal with this in the 

statute. We are just going to give it to some expert in an agency. 

And I think Congress has a role here too in writing statutes that 

provide more guidance and clarity. 

And thank you all very much. Thanks for the deference, Mr. 

Chairman. 

Senator HEITKAMP. I mean, we see this over and over again. As 

Senator Portman said, and as I said in my opening comments, this 

abrogation of responsibility that we see in Congress, whether it is 

getting Government Accountability Office (GAO) reports or Inspector General (IG) reports and not following up, not holding people 

accountable, not coming together to try and clarify. Think about 

the cost of the litigation of Waters of the United States, and we are 

operating in uncertainty. 

A lot of people are happy for the stay. I am happy for the stay. 

I have a bill that changes this. It has become so difficult to actually 

legislate in a toxic environment. But the one point that I want to 

make is that so many people look at this as a partisan issue. This 

is a structural issue. This is a constitutional issue, and you have 

to balance it. And you can say, well, this is all designed to get even 

with somebody’s agency, but I go back to the Massachusetts case 

that directed EPA to begin to look at regulating carbon. They made 

a decision. That decision was not given deference, and now we are 

in the clean power plan regime. 

This is not about partisan politics. This is about the balance of 

authority and power, and as we live in a more complicated world 

with less ability to make simple decisions here in a complicated environment and hand over those simple decisions, say good luck, I 

think a fair amount of agencies who would be watching this would 

say, look, you didn’t give me enough direction. You want me to do 

my job and regulate and you have not told me what to do, and so 

what am I supposed to do? I just throw up my hands and say, not 

going to meet the statutory requirement to get these regulations 
24 

out in time, so I am going to get dinged on that, but I do not know 

what you intended, and this is a lot more complicated, and we cannot take it back. 

And so I want to just say this has been very stimulating. And 

I think we will continue this discussion. But I want to put it in the 

context of this is not a liberal/conservative decision. This is a constitutional issue about balance of power and delegation, and we approach it that way. We may not agree. I mean, I quite frankly, 

think if the Court does not like Chevron, reverse it, give us a different standard. I do not feel obligated to reverse Chevron for the 

courts. The courts can reverse Chevron. But I do feel obligated to 

start identifying those areas that we in Congress have an obligation to clarify these ambiguities and take that responsibility seriously. 

And so thank you. You have been a very engaging and enlightening panel. 

Senator LANKFORD. Thank you. Let me do a quick wrap up, and 

I have one last question as well. It is interesting to me, as recently 

as yesterday, I met with some leadership from the Corps of Engineers about a piece of statute that Congress passed last year, or 

actually, 2 years ago in this particular piece. And we walked 

through the details of it, and their comment, because my question 

to them was this has not been implemented, and they said, well, 

we are going to try to get with you and your staff, because we do 

not have good parameters of what to do with this. We know the intent. We do not know how to do it. 

And so they were literally coming back as an agency, back to 

Congress to say, we need additional help and additional legislation 

to provide us greater clarity. They were not willing to make a guess 

to try to determine what is permissible construction. In some ways, 

it was gosh, this seems very plain to me, and the other way, I 

thought, OK, let’s have the conversation, what is missing? 

But it forced that conversation, exactly what we have talked 

about. They were not going to move on permissible construction because they were not confident 100 percent of what we needed. And 

so they were coming back to us on it. 

Let me ask this last question on this, and I know I am going to 

open up Pandora’s Box with it, but I want to try to limit our time 

on this, because you have all been terrific to be able to walk 

through these issues. If we were to pass something or to try to lay 

something before the courts and say the reviewing courts should 

review the meaning of statutory provisions de novo, what happens? 

Mr. Herz. 

Mr. HERZ. So I am speaking off the top of my head. 

Senator LANKFORD. I understand. That is what professors do. 

Mr. HERZ. Right. 

Senator LANKFORD. You draw from your experience. 

Mr. HERZ. Yes, but also I am very nervous because I am sitting 

next to a real lawyer. First of all, I do not think there is any doubt 

about the constitutionality of such a bill. Congress has the authority to pass such a law under the Constitution. In essence, as Senator Portman was pointing out, it did so already in 706. This would 

be a modification of 706. 
25 

Second, I think that it would be only partially effective, because 

to say de novo review, as I would read it, seems to say not only 

not Chevron, but not Skidmore. Skidmore came up earlier. Just de 

novo, on your own, ignore the agencies. Apart from the fact that 

I do not think courts should do that, I do not think courts would 

do it. The idea that courts should take agency view seriously is a 

very old idea. It did not start with Chevron. 

And it is imbued in the judiciary, and it is a kind of natural instinct, and I think an appropriate instinct. So my guess is that 

courts would continue to pay some attention to what agencies had 

to say. I do think it would shift the law and shift the practice. But 

I do not think it would actually produce pure de novo review in reality. Compliance with Skidmore, is impossible to police. A Court 

can say oh, we are applying Skidmore, but we are not persuaded, 

and who knows if they were or not, right? 

But likewise, compliance with de novo would be impossible to police. They could say it is de novo, but in fact, they might take the 

agencies quite seriously. I think they probably would. 

Senator LANKFORD. Thank you. Other comments? 

Mr. COOPER. I would just add, I really do not think de novo— 

first of all, I would welcome that amendment to 706 and I would 

be delighted, as this Subcommittee continues to explore how best 

to address this problem if you conclude ultimately, Ranking Member, that it is a problem. 

But I do not think that de novo review would require that the 

courts blind themselves to what the agency has said. I think they 

could and would review that in the same way they would review 

the amicus briefs and briefs that are before them in terms of what 

does this mean? Using again the usual canons of statutory construction, what is the correct answer, as the court put it in ‘‘King 

against Burwell’’? And looking to see how the agency itself has analyzed that question would be illuminating. 

It would be illuminating in the same way that a brief before 

them is illuminating. If to the extent it persuades, it persuades. To 

the extent it does not, it does not. 

Senator LANKFORD. Ms. Rao. 

Ms. RAO. Sure. I think one of the difficult things about legislating the standard of judicial review, in my understanding, is that 

the proposal is to try to restore the Court’s independent judicial review of agency action. And I am not sure if the term ‘‘de novo’’ captures that, and I am not sure what language would necessarily capture we want you to exercise your traditional independent role of 

judicial review. 

Because frankly, the independent judgments and judicial review 

are kind of a complex matter, right, very hard to sort of spell out. 

And so like the others, I think that it is a great thing for Congress 

to think about and consider, how do we sort of get the APA to say 

we meant what we said in the APA originally? But what precise 

language is used I think is maybe harder to pin down. 

Senator LANKFORD. Yes, welcome to Congress. 

Ms. RAO. Yes. 

Senator LANKFORD. Why we end up with laws that are ambiguous as well, because of interpretation on the other side. I appreciate all of your input, your preparation for this and being a part 
26 

of this conversation today and bringing this to the national conversation. This is a long-term conversation. It is not new to today, 

as you know very well. As you talked about, often this comes up 

in the classroom setting as well. 

This one we have to find some sort of resolution for, because I 

think the trend line is, this continues to get fuzzier as time goes 

on rather than clearer. And so if we can provide some sort of clarity to this in the direction that it goes, I think we continue to drift. 

So I appreciate very much the overarching conversation. Any 

other comments, Ranking Member. 

Senator HEITKAMP. Just that it is all about staying in your lane. 

What is the lane? And we have not defined the lane. I agree with 

Professor Herz. We have the ability to do that, but so does the 

Court have the ability to decide, and probably with more certainty 

and quicker. And I think at some point here they are going to have 

to revisit Chevron and either make the modification or the clarifications that give the message that this is not unfettered discretion. You do not have unfettered discretion. 

And I think a lot of people look at Chevron, say that is what 

Chevron means; you just check the box. Well, there are hundreds 

of cases out there where Chevron applied, resulting in the overturning of a rule or a regulation. And so we cannot say that it is 

unfettered discretion. 

And so the question becomes, how do you fix the problem of overreach? How do you fix the problem of lack of clarity? And Congress 

has to do its job, which is to legislate and protect its prerogatives, 

which is in fact legislating and not over-delegating the responsibility. 

And rather than telling the courts what to do, I would like to 

have a discussion broadly with my colleagues about what we are 

supposed to be doing, because I think that is really where the rubber meets the road. 

Senator LANKFORD. And I would agree with the Ranking Member 

on that one. And hopefully we can work through some legislative 

solutions and have some things that would be resolved. That—— 

Senator HEITKAMP. Because that is not painful. 

Senator LANKFORD [continuing]. Clearly the Congress’ responsibility. Before we adjourn, I would like to announce that on April 

12, the Subcommittee will examine efforts to improve USAJobs’ 

website and hold a hearing later in April reviewing the rulemaking 

records of independent regulatory agencies. 

That concludes today’s hearing. I would like to thank the witnesses again for their testimony. The hearing record will remain 

open for 15 days, to the close of business on April 1—no kidding 

on that one—for the submission of statements and questions for 

the record. 

With that, this hearing is adjourned. 

[Whereupon, at 10:29 a.m., the Subcommittee was adjourned.] 
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