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| <title> - SEPARATION OF POWERS RESTORATION ACT OF 2016</title> | |
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| [House Hearing, 114 Congress] | |
| [From the U.S. Government Publishing Office] | |
| SEPARATION OF POWERS RESTORATION ACT | |
| OF 2016 | |
| ======================================================================= | |
| HEARING | |
| BEFORE THE | |
| SUBCOMMITTEE ON | |
| REGULATORY REFORM, | |
| COMMERCIAL AND ANTITRUST LAW | |
| OF THE | |
| COMMITTEE ON THE JUDICIARY | |
| HOUSE OF REPRESENTATIVES | |
| ONE HUNDRED FOURTEENTH CONGRESS | |
| SECOND SESSION | |
| ON | |
| H.R. 4768 | |
| __________ | |
| MAY 17, 2016 | |
| __________ | |
| Serial No. 114-77 | |
| __________ | |
| Printed for the use of the Committee on the Judiciary | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| Available via the World Wide Web: http://judiciary.house.gov | |
| ______ | |
| U.S. GOVERNMENT PUBLISHING OFFICE | |
| 20-166 PDF WASHINGTON : 2016 | |
| ----------------------------------------------------------------------- | |
| For sale by the Superintendent of Documents, U.S. Government Publishing | |
| Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; | |
| DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, | |
| Washington, DC 20402-0001 | |
| COMMITTEE ON THE JUDICIARY | |
| BOB GOODLATTE, Virginia, Chairman | |
| F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan | |
| Wisconsin JERROLD NADLER, New York | |
| LAMAR S. SMITH, Texas ZOE LOFGREN, California | |
| STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas | |
| DARRELL E. ISSA, California STEVE COHEN, Tennessee | |
| J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr., | |
| STEVE KING, Iowa Georgia | |
| TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico | |
| LOUIE GOHMERT, Texas JUDY CHU, California | |
| JIM JORDAN, Ohio TED DEUTCH, Florida | |
| TED POE, Texas LUIS V. GUTIERREZ, Illinois | |
| JASON CHAFFETZ, Utah KAREN BASS, California | |
| TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana | |
| TREY GOWDY, South Carolina SUZAN DelBENE, Washington | |
| RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York | |
| BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island | |
| DOUG COLLINS, Georgia SCOTT PETERS, California | |
| RON DeSANTIS, Florida | |
| MIMI WALTERS, California | |
| KEN BUCK, Colorado | |
| JOHN RATCLIFFE, Texas | |
| DAVE TROTT, Michigan | |
| MIKE BISHOP, Michigan | |
| Shelley Husband, Chief of Staff & General Counsel | |
| Perry Apelbaum, Minority Staff Director & Chief Counsel | |
| ------ | |
| Subcommittee on Regulatory Reform, Commercial and Antitrust Law | |
| TOM MARINO, Pennsylvania, Chairman | |
| BLAKE FARENTHOLD, Texas, Vice-Chairman | |
| DARRELL E. ISSA, California HENRY C. ``HANK'' JOHNSON, Jr., | |
| DOUG COLLINS, Georgia Georgia | |
| MIMI WALTERS, California SUZAN DelBENE, Washington | |
| JOHN RATCLIFFE, Texas HAKEEM JEFFRIES, New York | |
| DAVE TROTT, Michigan DAVID N. CICILLINE, Rhode Island | |
| MIKE BISHOP, Michigan SCOTT PETERS, California | |
| Daniel Flores, Chief Counsel | |
| Slade Bond, Minority Counsel | |
| C O N T E N T S | |
| ---------- | |
| MAY 17, 2016 | |
| Page | |
| THE BILL | |
| H.R. 4768, the ``Separation of Powers Restoration Act of 2016''.. 3 | |
| OPENING STATEMENTS | |
| The Honorable Tom Marino, a Representative in Congress from the | |
| State of Pennsylvania, and Chairman, Subcommittee on Regulatory | |
| Reform, Commercial and Antitrust Law........................... 1 | |
| The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in | |
| Congress from the State of Georgia, and Ranking Member, | |
| Subcommittee on Regulatory Reform, Commercial and Antitrust Law 5 | |
| The Honorable Bob Goodlatte, a Representative in Congress from | |
| the State of Virginia, and Chairman, Committee on the Judiciary 6 | |
| WITNESSES | |
| John F. Duffy, Samuel H. McCoy II Professor of Law, University of | |
| Virginia School of Law | |
| Oral Testimony................................................. 9 | |
| Prepared Statement............................................. 12 | |
| Jack M. Beermann, Professor of Law and Harry Eldwood Warren | |
| SCholar, Boston University School of Law | |
| Oral Testimony................................................. 22 | |
| Prepared Statement............................................. 24 | |
| Jeffrey Bossert Clark, Sr., Partner, Kirkland & Ellis LLP | |
| Oral Testimony................................................. 35 | |
| Prepared Statement............................................. 37 | |
| John D. Walke, Esq, Clean Air Director, Natural Resources Defense | |
| Council (NRDC) | |
| Oral Testimony................................................. 46 | |
| Prepared Statement............................................. 48 | |
| Ronald M. Levin, William R. Orthwein Distinguished Professor of | |
| Law, Washington University in St. Louis | |
| Oral Testimony................................................. 61 | |
| Prepared Statement............................................. 63 | |
| Adam J. White, Research Fellow, The Hoover Institution, Adjunct | |
| Professor, The Antonin Scalia Law School at George Mason | |
| University | |
| Oral Testimony................................................. 83 | |
| Prepared Statement............................................. 85 | |
| LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING | |
| Prepared statement of the Honorable John Conyers, Jr., a | |
| Representative in Congress from the State of Michigan, and | |
| Ranking Member, Committee on the Judiciary..................... 111 | |
| OFFICIAL HEARING RECORD | |
| Unprinted Material Submitted for the Hearing Record | |
| Supplemental material submitted by Jack M. Beermann, Professor of Law | |
| and Harry Eldwood Warren Scholar, Boston University School of Law. | |
| This material is available at the Subcommittee and can also be | |
| accessed at: | |
| http://docs.house.gov/Committee/Calendar/ | |
| ByEvent.aspx?EventID=104928 | |
| SEPARATION OF POWERS RESTORATION ACT OF 2016 | |
| ---------- | |
| TUESDAY, MAY 17, 2016 | |
| House of Representatives, | |
| Subcommittee on Regulatory Reform, | |
| Commercial and Antitrust Law | |
| Committee on the Judiciary, | |
| Washington, DC. | |
| The Subcommittee met, pursuant to call, at 1 p.m., in room | |
| 2141, Rayburn House Office Building, the Honorable Tom Marino, | |
| (Chairman of the Subcommittee) presiding. | |
| Present: Representatives Marino, Goodlatte, Issa, Collins, | |
| Walters, Ratcliffe, Johnson, DelBene, and Peters. | |
| Staff Present: (Majority) Daniel Flores, Chief Counsel; | |
| Andrea Lindsey, Clerk; and (Minority) Slade Bond, Minority | |
| Counsel. | |
| Mr. Marino. The Subcommittee on Regulatory Reform, | |
| Commercial and Antitrust Law, will come to order. Without | |
| objection, the Chair is authorized to declare recess of the | |
| Committee at any time. We welcome everyone to today's hearing | |
| on H.R. 4768, the ``Separation of Powers Restoration Act of | |
| 2016.'' And I now recognize myself for an opening statement. | |
| Today's hearing continues our discussion and inquiry into | |
| the 30-plus-year-old Chevron doctrine. Our prior hearing gave | |
| us an opportunity to examine Chevron, and question whether or | |
| not it remains appropriate in light of the modern | |
| administrative state. | |
| Today, we turn to H.R. 4768, the ``Separation of Powers | |
| Restoration Act of 2016,'' a piece of legislation offered by my | |
| friend from Texas, Congressman Ratcliffe. I am proud to | |
| cosponsor this legislation that would begin the process of | |
| reeling in administrative overreach. | |
| As Chief Justice John Roberts correctly described it 2 | |
| years ago, in his dissent in City of Arlington v. FCC, ``The | |
| Framers could hardly have envisioned today's vast and varied | |
| Federal bureaucracy and the authority administrative agencies | |
| now hold over our economic, social, and political activities.'' | |
| My own experience as an industrial banker, prosecutor, and | |
| now legislator, have exposed me to the myriad levels of hurdles | |
| and complete unknowns of the modern administrative state. | |
| Navigating this morass is a daunting task, if not | |
| impossible; challenges for employers and workers across the | |
| Nation. Agencies often too numerous to count interject | |
| themselves into nearly every aspect of daily life. And to make | |
| matters worse, the bureaucrats writing regulation know how to | |
| shape their rules to satisfy Chevron and achieve their sought- | |
| after outcome. | |
| For regulated entities, especially small businesses, the | |
| deck is stacked against them from the start. But these citizens | |
| have sent us to Washington as representatives of their | |
| interests, hardship, and, we hope, success. It is a privilege | |
| we often take for granted, and an honor that we can repay | |
| through thoughtful, clear, and concise lawmaking. The Chevron | |
| doctrine represents an abdication of the legislative | |
| responsibility. | |
| Over 30 years of Chevron deference, we have seen the | |
| gradual creep of executive agencies from administrators of the | |
| legislative process to becoming legislators themselves. Rather | |
| than executing the will of Congress, agencies now have the | |
| freedom to define the law as they see fit. This is not a system | |
| that respects the checks and balances that have existed since | |
| the first days of our Nation. | |
| Chevron and its progeny are a departure not only from the | |
| Constitution, but from the Administrative Procedure Act, | |
| Congress' original effort to bring order to the rulemaking | |
| process. | |
| Today's discussion on the ``Separation of Powers | |
| Restoration Act of 2016'' presents an opportunity to reassert | |
| the lawmaking authority of Congress. It embodies the tripartite | |
| vision of governance established by our founders. The | |
| unfortunate nature of the 21st Century administrative state is | |
| its breadth and reach. | |
| As I said in March, while the Chevron doctrine may not be | |
| as glamorous or headline-worthy as other issues before | |
| Congress, its effect on the everyday lives of Americans cannot | |
| be understated, and its ability to fundamentally change the | |
| working of our government, and undo the guards long put in | |
| place to prevent tyranny and abuse, is profound. | |
| Our goal today is to examine the bill before us. Our hope | |
| is craft a final bill that creates stability in the rulemaking | |
| process, removes the power to legislate that has slowly found | |
| its way into the rulemaking process, and return the judiciary | |
| to its proper role and power to say what the law is. | |
| [The bill, H.R. 4768, follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. We are fortunate to have a panel of witnesses | |
| with a wide range of expertise and experience on this issue. I | |
| look forward to their testimony and an engaging discussion of | |
| this important issue. I now recognize the Ranking Member of the | |
| Subcommittee, Mr. Johnson from Georgia. | |
| Mr. Johnson. Thank you, Mr. Chairman. Judicial review of | |
| final agency action is a hallmark of administrative law, and is | |
| critical to ensuring that agency action does not harm or | |
| adversely affect the public. But as the Supreme Court held in | |
| Chevron v. Natural Resources Defense Council, reviewing courts | |
| may only invalidate an agency action when it violates a | |
| constitutional provision, or when an agency exceeds its | |
| statutory authority as clearly expressed by Congress. For the | |
| past 30 years, this seminal decision has required deference to | |
| the substantive expertise and political accountability of | |
| Federal agencies. | |
| Judicial deference is borne from principles of political | |
| accountability and separation of powers. As the Court explained | |
| in Chevron, ``Federal judges who have no constituency have a | |
| duty to respect legitimate policy choices made by those who do. | |
| The responsibilities for assessing the wisdom of such policy | |
| choices, and resolving the struggle between competing views of | |
| the public interest, are not judicial ones. | |
| Our Constitution vests such responsibility in the political | |
| branches.'' H.R. 4768, the ``Separation of Powers Restoration | |
| Act of 2016,'' so-called, would eliminate this longstanding | |
| tradition of judicial deference to agencies' interpretation of | |
| statutes and rules by requiring courts to review all agency | |
| interpretations of statutes and rules on a de novo basis. This | |
| misguided legislation is not the majority's first attempt to | |
| gum up the rulemaking process through enhanced judicial review. | |
| Since the 112th Congress, a number of deregulatory bills we | |
| have considered, such as H.R. 185, the ``Regulatory | |
| Accountability Act,'' would require generalist courts to | |
| supplant the expertise and political accountability of agencies | |
| in rulemaking process with their own judgments. Compare this | |
| approach with other deregulatory bills passed this Congress | |
| that would greatly diminish judicial review over deregulatory | |
| actions by dramatically shortening the statutes of limitations | |
| for judicial review, sometimes to just 45 days. | |
| In other words, the majority wants to have it both ways. | |
| When it benefits corporate interests, Republican legislation | |
| heightens scrutiny of agency rulemaking, threatening to impose | |
| years of delay and untold cost on taxpayers. When it benefits | |
| the public or our environment, Republican legislation slams the | |
| courthouse doors shut through sweeping restrictions on the | |
| court's ability to protect public health or the environment. | |
| These proposals, which are transparently the design of the | |
| donor class to minimize their exposure to legal accountability, | |
| are just another example of how some not only want the fox to | |
| guard the chicken coop, they want to give the fox the | |
| responsibility of keeping the chicken coop clean as well. H.R. | |
| 4768 is more of the same. | |
| In closing, I look forward to testimony from our esteemed | |
| panel, and I thank the witnesses for their testimony. And with | |
| that, I yield back. | |
| Mr. Marino. The Chair now recognizes the Chairman of the | |
| full Committee, Mr. Bob Goodlatte of Virginia, for his opening | |
| statement. | |
| Mr. Goodlatte. Thank you, Mr. Chairman. The modern Federal | |
| administrative state is an institution unforeseen by the | |
| Framers of our Constitution and rapidly mushrooming out of | |
| control. The ``Separation of Powers Restoration Act of 2016'' | |
| takes square aim at one of the biggest roots of this problem-- | |
| the Chevron doctrine, under which Federal courts regularly | |
| defer to regulatory agencies' self-serving interpretations of | |
| the statutes they administer. 1Similarly, the bill takes on the | |
| related Auer doctrine, under which courts defer to agencies' | |
| interpretations of their own regulations. | |
| In perhaps the most famous of Supreme Court's early | |
| decisions, Marbury v. Madison, Chief Justice Marshall declared | |
| for a unanimous Court that, ``It is emphatically the province | |
| and duty of the judicial department to say what the law is.'' | |
| Since the Chevron doctrine allows judges to evade | |
| interpreting the law and instead to defer to agencies' | |
| interpretations, one must ask--is Chevron faithful to Marbury | |
| and the separation of powers? | |
| In the ``Administrative Procedure Act of 1946,'' often | |
| called the ``Constitution'' of Administrative Law, Congress | |
| provided for judicial review of agency action in terms that | |
| were plain and direct. It stated that ``the reviewing court | |
| shall decide all relevant questions of law [and] interpret | |
| constitutional and statutory provisions.'' | |
| That standard is consistent with Marbury and the separation | |
| of powers. But since Chevron allows judges to escape | |
| interpreting statutory provisions themselves, one must ask--is | |
| Chevron unfaithful not only to Marbury and the separation of | |
| powers, but also the ``Administrative Procedure Act?'' | |
| These are not just academic questions. They are fundamental | |
| questions that go to the heart of how our government works, and | |
| whether the American people can still control it. | |
| The genius of the Constitution was that, by separating the | |
| legislative, executive, and judicial powers into three distinct | |
| branches, the ambitions of each branch would check and balance | |
| the ambitions of the others. As long as the separation is kept | |
| strong, that system of checks and balances preserves liberty-- | |
| as the Framers intended. | |
| But judicial deference under Chevron weakens the separation | |
| of powers, threatening liberty. It bleeds out the judicial | |
| branch power to say that what the law is, transfusing that | |
| power into the executive branch. And, it tempts Congress to let | |
| the hardest work of legislating bleed out of Congress and into | |
| the executive branch, since Congress knows judges will defer to | |
| agency interpretations of ambiguities and gaps in statutes | |
| Congress did not truly finish. | |
| This leads us down the dangerous slope James Madison warned | |
| against in Federalist 47--``the accumulation of all powers, | |
| legislative, executive, and judiciary, in the same hands,'' | |
| that ``may justly be pronounced the very definition of | |
| tyranny.'' | |
| This is what Americans across our Nation feel in their | |
| bones to be dangerous when they fear a Federal regulatory | |
| bureaucracy growing beyond limits, spinning out of control. | |
| They fear a government emboldened to burst our system of checks | |
| and balances, trespass without limit on their liberty, and | |
| threaten their way of life--all at the whim of ``swarms of | |
| administrators'' in a far-off capital. They fear an all- | |
| reaching, unaccountable bureaucracy that threatens our system | |
| of self-government by and with the consent of the people. | |
| The ``Separation of Powers Restoration Act of 2016'' is | |
| timely, bold legislation directed straight at this problem. In | |
| one fell swoop, it restores the separation of powers by | |
| legislatively overturning the Chevron doctrine and the related | |
| Auer doctrine. This is reform that we must make reality for the | |
| good of the people. | |
| I look forward to the testimony of our witnesses as we | |
| consider this crucial bill, and I am particularly interested in | |
| hearing their views on whether more terms should be added to | |
| the bill to further guide the judiciary on the appropriate | |
| interpretation of statutes and regulations as it resumes fully | |
| ``the province and duty of the judicial department to say what | |
| the law is.'' | |
| And I want to especially thank my colleague from Texas, Mr. | |
| Ratcliffe, for his leadership on this issue, and for | |
| introducing this fine legislation, and to Chairman Marino, for | |
| his work Chairing this Subcommittee and addressing this | |
| important subject. Mr. Chairman, I yield back. | |
| Mr. Marino. Thank you. Without objection, other Member's | |
| opening statements will be made part of the record. | |
| I will begin by swearing in our witnesses before | |
| introducing them. So would you please stand and raise your | |
| right hand? | |
| Do you swear that the testimony you are about to give | |
| before this Committee is the truth, the whole truth, and | |
| nothing but the truth, so help you God? | |
| Let the record reflect that the witnesses have answered in | |
| the affirmative. Please be seated. Thank you. | |
| I am going to read each of the witness'--each of your | |
| introductions. I will get through all six of you and then we | |
| will get back to you making your opening statements as well. | |
| Okay? | |
| John Duffy is the Samuel H. McCoy professor of law at the | |
| University of Virginia Law School. Prior to joining UVA's law | |
| school, Professor Duffy taught at the George Washington | |
| Benjamin N. Cardozo and William & Mary Schools of Law. He has | |
| also taught at the University of Chicago Law School. Professor | |
| Duffy served as an attorney advisor in the Department of | |
| Justice's Office of Legal Counsel, and practiced law with the | |
| firm of Covington and Burling. | |
| Professor Duffy is widely published, and a coauthor of a | |
| casebook on patent law. Professor Duffy earned his bachelor's | |
| degree in Physics from Harvard University, and his law degree | |
| from the University of Chicago, where he served as articles | |
| editor of the Law Review. Professor Duffy clerked for Judge | |
| Stephen Williams on the U.S. Court of Appeals for the D.C. | |
| Circuit, and for the late U.S. Supreme Court Justice Antonin | |
| Scalia. Welcome, professor. | |
| Jack Beermann is the Harry Elwood Warren Scholar at the | |
| Boston University School of Law. He previously taught at | |
| various universities, including Harvard, DePaul, the | |
| Interdisciplinary Center in Herzliya, Israel, and the China | |
| University of Political Science and Law. | |
| Professor Beermann is published widely in top-ranked | |
| journals. He has authored and coauthored four books on | |
| administrative law, including a widely-used casebook and the | |
| Emanuel Law Outline on the subject. Professor Beermann earned | |
| his bachelor's degree in political science and philosophy from | |
| the University of Wisconsin, Madison. He holds a law degree | |
| from the University of Chicago Law School, where he was elected | |
| Order of the Coif and served as editor of the Law Review. | |
| Welcome, Professor. | |
| Jeffrey Clark is a partner at the law firm of Kirkland and | |
| Ellis, LLP, and specializes in complex trial and appellate | |
| litigation. Mr. Clark has been with the firm since 1996, with | |
| the exception of 2001 to 2005, when he served as the Deputy | |
| Assistant Attorney General for the Environment and Natural | |
| Resources Division of the Justice Department. During his | |
| appointment at Justice, Mr. Clark supervised the division's | |
| Appellate Section, 50 lawyers and staff, and Indian Resources | |
| Section, 25 lawyers and staff. He has argued and won the noted | |
| Massachusetts v. EPA case in the D.C. circuit, and is rated AV | |
| preeminent, 5.0 out of 5, by the Martindale Hubbell, the | |
| highest level of professional excellence. | |
| Prior to joining Kirkland and Ellis, Mr. Clark was a law | |
| clerk for Judge Danny J. Boggs of the United States Court of | |
| Appeals for the Sixth Circuit. He has written and appeared | |
| extensively in public on topics in energy efficiency, clean | |
| air, and water law, administrative law, and constitutional law. | |
| Mr. Clark is an elected member of the Governing Council of | |
| the ABA Administrative Law Section, and is currently serving as | |
| co-chair of the ABA Section of Administrative Law and | |
| Regulatory Practice's Committee on Environmental and Natural | |
| Resources Regulation. | |
| Mr. Clark graduated with an AB in economics and Russian/ | |
| Soviet history, cum laude, from Harvard University; an MA in | |
| urban affairs and public policy, summa cum laude, from the | |
| University of Delaware; and the J.D., magna cum laude, from | |
| Georgetown University Law School. Welcome, sir. | |
| Mr. Walke is a Senior Attorney and Clean Air Director for | |
| Natural Resources Defense Council in Washington, D.C. He is | |
| responsible for NRDC's national clean air advocacy program | |
| before Congress, the courts, and the U.S. Environmental | |
| Protection Agency. Prior to joining NRDC, Mr. Walke worked for | |
| the EPA in the Air and Radiation Law Office of the Office of | |
| General Counsel. At the EPA, he worked on permitting, air | |
| toxics, monitoring, and enforcement issues under the Clean Air | |
| Act. | |
| Prior to working for EPA, Mr. Walke was an associate at | |
| Beveridge and Diamond in Washington, D.C. Mr. Walke graduated | |
| from Duke University with a BA in English, and earned his JD | |
| from Harvard Law School. Thank you, Mr. Walke, for being here. | |
| Ronald Levin is the William R. Orthwein Distinguished | |
| Professor of Law at Washington University in St. Louis. Mr. | |
| Levin is the coauthor of a casebook, State and Federal | |
| Administrative Law. Professor Levin has chaired the Section of | |
| Administrative Law and Regulatory Practice of the American Bar | |
| Association, a group of which he is still an active member. He | |
| served as the ABA's advisor to the drafting committee to revise | |
| the Model State Administrative Procedure Act. | |
| Professor Levin also served as a public member of the | |
| Administrative Conference of the United States, and the chair | |
| of its Judicial Review Committee. Professor Levin clerked for | |
| the Honorable John C. Godbold of the U.S. Court of Appeals for | |
| the Fifth Circuit, and practiced with the Washington, D.C., | |
| firm of Sutherland, Asbill, and Brennan. Mr. Levin received his | |
| BA from Yale and his JD from the University of Chicago. | |
| Welcome, Mr. Levin. | |
| Adam White is a fellow at the Hoover Institution, and the | |
| Adjunct Professor at the Antonin Scalia Law School at George | |
| Mason University. Prior to joining Hoover, he was an adjunct | |
| fellow at the Manhattan Institute. Mr. White practiced law with | |
| Baker Botts, working on various constitutional and regulatory | |
| matters, including energy infrastructure regulation. | |
| He also practiced law with Boyden Gray and Associates, | |
| where he wrote briefs on constitutional and regulatory issues | |
| in the Supreme Court and various other Federal courts. He | |
| continues to be of counsel to the firm in three pending cases | |
| involving the Consumer Financial Protection Bureau, and the | |
| Federal Communications Commission. Mr. White writes on the | |
| courts and the administrative state for such publications as | |
| the Weekly Standard, The Wall Street Journal, Commentary, The | |
| Harvard Journal of Law and Public Policy, and SCOTUSblog. In | |
| 2015, he was appointed to the Leadership Council of the | |
| American Bar Association's Section of Administrative Law and | |
| Regulatory Practice. | |
| He co-chairs the Section's Judiciary Review Committee, and | |
| co-directs its Supreme Court Series. Mr. White received his | |
| bachelor's degree in Economics from the University of Iowa | |
| College of Business, and his law degree from Harvard Law | |
| School, where he graduated cum laude. He clerked for Judge | |
| David B. Sentelle of the United States Court of Appeals for the | |
| D.C. Circuit. Welcome, sir. | |
| Each of the witnesses' written statements will be entered | |
| into the record in its entirety. I ask that each witness | |
| summarize his or her testimony in 5 minutes or less. | |
| To help you stay within that time, there is a timing light | |
| in front of you, and it is--I do not know the colors because I | |
| am color-blind, but what I will do is as it gets down to the | |
| last color, which I am told is the red light, I will just | |
| diplomatically pick up my little gavel here and let you know | |
| that: would you please finish as soon as possible. | |
| Professor Duffy, you are on. | |
| TESTIMONY OF JOHN F. DUFFY, SAMUEL H. McCOY II PROFESSOR OF | |
| LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW | |
| Mr. Duffy. Thank you. Chairman Marino, Chairman Goodlatte, | |
| Ranking Member Johnson, and the distinguished Members of the | |
| Subcommittee, thank you for inviting me to testify before you | |
| today. | |
| At the outset, I would like to compliment the Subcommittee | |
| for devoting time and attention to this matter, and to this | |
| important piece of legislation, H.R. 4768, the ``Separation of | |
| Powers Restoration Act of 2016.'' The proposed legislation | |
| would be a welcome path out of the ever-growing morass of | |
| complex case law that these doctrines have generated over the | |
| past several decades. | |
| Importantly, the proposed legislation is admirable in its | |
| elegance and brevity, filling up less than a page of | |
| legislative text, and adding a mere two words, de novo, plus | |
| some accompanying stylistic changes, to the first sentence of | |
| Section 706 of the APA. | |
| This is a highly desirable approach to supplanting the | |
| Chevron doctrine and other judge-made doctrines of deference | |
| with a clear, easily understood, and theoretically sound | |
| principle to govern judicial review of all legal issues arising | |
| in administrative cases. My written statement and prior | |
| testimony sets forth in detail why I believe that the proposed | |
| legislation is not really changing the APA, but is instead | |
| confirming the statute's original meaning. | |
| I will mention one point in particular right now, which is | |
| that so strong are the statutory arguments in favor of de novo | |
| review: a de novo standard of review for legal questions from | |
| the original APA, that when Federal courts of appeals have | |
| focused on the relevant statutory language, they have | |
| interpreted the APA as requiring de novo review of statutory | |
| interpretation, even in the years after the Supreme Court | |
| decision in Chevron. | |
| One of the most important benefits of the proposed | |
| legislation is that it would eliminate the uncertainties and | |
| needless complexities of current decisional law. The Chevron | |
| doctrine as it exists today, and indeed the entire set of | |
| judge-made doctrines requiring deference to agency legal | |
| positions, is riddled with complexities and exceptions. | |
| Indeed, so pervasive are the exceptions that it would be | |
| wrong to assert that the proposed legislation would overrule or | |
| overturn the Chevron doctrine, or other doctrines requiring | |
| judicial deference on legal issues. It is far more accurate to | |
| say the legislation would get rid of what is left of these | |
| doctrines, and as discussed--as I have discussed in my written | |
| statement, what is left is not so much in many areas. | |
| Chevron and other doctrines requiring judicial deference on | |
| legal issues have come under increasing intellectual scrutiny | |
| over the past 2 decades, and because of the inherent | |
| theoretical weaknesses of the doctrine, the Supreme Court has | |
| made exceptions to them. As a result, the doctrines are both | |
| weakened and unpredictable. | |
| Just last year, the Supreme Court in King v. Burwell held | |
| that Chevron deference is inapplicable to any issue of deep | |
| economic and political significance that is central to a | |
| statutory scheme. King's exception to Chevron, which might be | |
| called a ``too big to defer'' exception, creates a major | |
| limitation on Chevron, and also increases the opportunity for | |
| more litigation about whether Chevron should apply at all in | |
| any particular case, making the doctrine less valuable for | |
| agencies, and more burdensome on all litigants. | |
| Another example about the complexities of this doctrine | |
| comes from the patents system, an area of administrative | |
| regulation in which I teach and write. Under consistent lower | |
| court precedent and Supreme Court practice, the Patent Office | |
| gets no deference in its interpretation of the substantive | |
| provisions of the Patent Act, but why? | |
| Under the reasoning of Chevron, which stresses the need for | |
| deference to expert politically accountable agencies, the | |
| Patent Office would seem to be a leading candidate to receive | |
| deference. There are, of course, doctrinal reasons for the | |
| absence of deference in this area, but those doctrinal reasons | |
| nearly underscore the complexity and incoherence of the case | |
| law spawned by Chevron. Though the proposed legislation would | |
| clearly end judicial deference to agency legal positions, it | |
| would not foreclose several unobjectionable judicial practices | |
| detailed in my written statement that are sometimes confused | |
| with deference. | |
| I will not detail those doctrines in my oral statement, but | |
| just say that those statements--those additional principles do | |
| not need to be codified in this proposed legislation, and I | |
| think the legislation as it exists now is an admirable and | |
| elegant vehicle. | |
| In closing, I once again commend the Subcommittee for | |
| devoting time to this important matter, and for devising an | |
| elegant way to restore the traditional role of Federal courts | |
| to say what the law is. Thank you for your time and attention | |
| to these issues, and thank you for the invitation to speak to | |
| the Subcommittee. | |
| [The prepared statement of Mr. Duffy follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Thank you. Professor Beermann? | |
| TESTIMONY OF JACK M. BEERMANN, PROFESSOR OF LAW AND HARRY | |
| ELDWOOD WARREN SCHOLAR, BOSTON UNIVERSITY SCHOOL OF LAW | |
| Mr. Beermann. Thank you very much, Chairman Marino and | |
| Ranking Member Johnson, and distinguished Members of the | |
| Subcommittee. It is truly heartwarming as an administrative law | |
| professor to see the Committee spending such dedicated time and | |
| attention to this important issue that many of us have been | |
| working on for years. And I am a Chevron skeptic, as the | |
| material included with my written submission reveals, and the | |
| language of H.R. 4768 would certainly be a complete reversal of | |
| Chevron and related doctrines. | |
| But while I share the view that the Chevron doctrine has | |
| gone too far and has become too confusing, the long history of | |
| judicial deference to agency legal decisions may point in favor | |
| of a less complete rejection of deference. | |
| Long before Chevron, it was generally understood that | |
| reviewing courts should pay close attention to agency reasoning | |
| when reviewing agency legal decisions, especially agency | |
| construction of the agency's enabling act in order to ensure | |
| that agencies remained within their delegation from Congress. | |
| What was extreme about Chevron was its assumption that | |
| statutory silence or ambiguity virtually always indicates | |
| Congress's intent to delegate interpretive authority to the | |
| administrative--to the administering agencies. Even if this | |
| assumption was erroneous, that does not mean that Congress does | |
| not sometimes delegate interpretive authority to an agency. In | |
| highly technical or sensitive areas in which Congress expects | |
| agencies to apply expertise, ambiguity might be an indication | |
| that Congress might want a reviewing court to be highly | |
| attentive to the agency's views. | |
| For example, when Congress delegated authority to the | |
| Federal Communications Commission to award broadcast licenses | |
| in the public interest, convenience, and necessity, Congress | |
| certainly intended for the agency to be primarily responsible | |
| for determining the meaning of those general terms. It would be | |
| a fundamental shift if H.R. 4768 were understood to forbid | |
| reviewing courts from deferring to agency determinations of | |
| that or similar statutory language. | |
| It has also been suggested that H.R. 4768 would have the | |
| salutary effect of introducing strict construction of | |
| delegations of authority to agencies, and that this would be | |
| positive. There are reasons, however, to be cautious on both of | |
| these scores. | |
| First, merely instituting de novo review of agency | |
| interpretations of statutes would not necessarily mean that | |
| such delegations would be construed narrowly. There are many | |
| traditional methods of statutory construction that point toward | |
| broad constructions of statutes, including delegations of | |
| authority to agencies. Second, although there are circumstances | |
| in which, as a policy matter, it is appropriate to read | |
| delegations of authority narrowly, sometimes Congress intends | |
| agencies to have broad authority to address the social problems | |
| within its jurisdiction. | |
| For example, narrowly construing agency delegations | |
| regarding communicable diseases or chemical contamination could | |
| have serious social negative--negative social effects. Before | |
| Chevron, traditional legal doctrine was by and large successful | |
| at distinguishing those situations in which broad | |
| interpretation of agency authority is more appropriate than | |
| narrow interpretation. | |
| Also, while I share Chief Justice Roberts' concern that | |
| agencies should not have free rein to determine their own | |
| jurisdiction, I am afraid that it would be virtually impossible | |
| to craft statutory language that would distinguish | |
| jurisdictional from nonjurisdictional matters of statutory | |
| interpretation. So, although I agree that H.R. 4768 is a | |
| laudable effort to dispel some of the negative consequences and | |
| confusion caused by the Chevron doctrine, I am afraid that it | |
| would disable reviewing courts from taking into account the | |
| views of an administering agency on questions of statutory | |
| interpretation that would aid in advancing Congress's intent. | |
| So in my prior testimony, I suggested language under which | |
| Congress could react to all the problems of Chevron deference, | |
| without totally ruling out judicial deference to agency views. | |
| My suggestion would be, and I will repeat it here, to add | |
| language to APA 706 as follows: | |
| ``Unless expressly required otherwise by statute, the | |
| reviewing court shall decide all questions of law de novo, with | |
| due regard for the views of the agency administering the | |
| statute, and any other agency involved in the decision-making | |
| process.'' | |
| Under this standard, courts would apply the pre-APA | |
| Skidmore factors for determining how much to defer to agency | |
| interpretation, with flexibility to shape deference to meet | |
| modern concerns. | |
| In my view, Skidmore includes a sensible set of criteria | |
| for determining whether an agency interpretation is worthy of | |
| deference. In fact, the term ``deference'' may be a misnomer in | |
| this context. When Congress has delegated to an agency the | |
| power to administer a statute, and the agency has thoroughly | |
| considered a problem and provided persuasive, valid reasoning | |
| for its consistent view of the meaning of the statutory term, a | |
| reviewing court is likely to be convinced that the agency has | |
| made a correct decision, or at least a decision that is as | |
| likely to be correct as any contrary view advanced by the | |
| challengers on judicial review. | |
| So this reform, in my view, would restore to Congress the | |
| ultimate decision to determine how much deference there should | |
| be to agency legal decisions, and that is of course where such | |
| authority belongs. Thank you. | |
| [The prepared statement of Mr. Beermann follows:*] | |
| --------------------------------------------------------------------------- | |
| *Note: Supplemental material submitted by Mr. Beermann is not | |
| reprinted in this record but is on file with the Committee, and can | |
| also be accessed at: | |
| http://docs.house.gov/Committee/Calendar/ | |
| ByEvent.aspx?EventID=104928 | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Thank you. Mr. Clark? | |
| TESTIMONY OF JEFFREY BOSSERT CLARK, SR., | |
| PARTNER, KIRKLAND & ELLIS LLP | |
| Mr. Clark. Thank you, Chairman Marino, Ranking Member | |
| Johnson, and distinguished Members of the Committee, and | |
| thank--is it not on? There we go. Apologies. | |
| Thank you, Chairman Marino and Ranking Member Johnson and | |
| Members of the Committee, for the opportunity to appear before | |
| you today to speak about the ``Separation of Powers Restoration | |
| Act of 2016.'' It is important that the title that you gave to | |
| this legislation--it indicates, you know, where you are coming | |
| from, which I agree with. | |
| You know, the separation of powers was an idea crystallized | |
| by the French thinker Montesquieu, and the Founders knew a good | |
| idea when they saw one, and they embedded that idea into the | |
| structure of the constitution and the difference between | |
| articles I, II, and III. | |
| The Chevron doctrine is entirely foreign to that classical | |
| conception of the Constitution, and I would submit to you that | |
| there is zero evidence that the Congress that adopted the APA, | |
| intended that to occur, intended such massive delegations or | |
| intended to violate the separation of powers. And so I agree | |
| with Professor Duffy that what your Act is doing is really | |
| restoring not just the separation of powers, but the original | |
| meaning of the APA which, in any event, even if there were | |
| ambiguity, is something that should be interpreted consistent | |
| with the Constitution, or to avoid separation of powers | |
| concerns. | |
| The Chevron doctrine was never squared with the separation | |
| of powers, which makes it a defective decision on its own, and | |
| there is a lot of talk about Chevron being a case about | |
| expertise, but I would submit to you that it is a very curious | |
| decision if that is what it is. It talks about expertise, but | |
| the test that it adopts has ``expertise'' nowhere to be found | |
| in it. | |
| The first step of the Chevron two-step is to look at the | |
| text of the statute, and the second step is, once again, to | |
| look at the text of the statute in terms of whether the agency | |
| has produced a reasonable construction of it. There is no | |
| portion of the Chevron test that has expertise built into it, | |
| so to defend the Chevron decision on expertise grounds, it | |
| seems to me, makes little sense and is something that, if it is | |
| being supported on that ground, it must be really supported | |
| because of results that it produces that those who favor those | |
| results like. | |
| In practice--and this is a perspective I can help to bring | |
| to you as being a practitioner, as being someone who served in | |
| the government--I can tell you that, you know--and I set it out | |
| in my analysis--there was a particular compromise that animated | |
| Chevron. I think that the extent to which that compromise was | |
| ever really adhered to, it has broken down. The approach that I | |
| see--and I think, to be fair, I saw it not just in this | |
| Administration, but I also saw it to some extent in the Bush | |
| administration--I saw approaching the statute with a particular | |
| idea in mind about what public policy in some area should be. | |
| It did not look first to the statute to see what instructions | |
| you, as Members of Congress, had given the executive branch in | |
| a particular area. | |
| It instead looked at those constraints as inconveniences to | |
| be dealt with, essentially, and so various smart lawyers are | |
| sicced on the problem of, ``How do we get this through the | |
| Chevron two-step? How do we secure deference?'' And from that | |
| perspective, Chevron, I think, has been a failed experiment as | |
| well. | |
| There has been a lot of talk about Sidmore deference as | |
| well, and I would caution you, and disagree with those who say | |
| that Sidmore deference should be the substitute, Chevron should | |
| be wiped off the map, adopt Sidmore. My first question about is | |
| Sidmore is, what work is it really doing? It is essentially | |
| urging courts to take seriously the reasons that agencies have | |
| given. That is, you know, number one, what courts already do | |
| when they read briefs in the Supreme Court from the Solicitor | |
| General or from the Justice Department in cases. | |
| And in fact, the agency already has an immense | |
| institutional advantage because it gets to pre-brief those | |
| issues by writing the decision, and also, given administrative | |
| law waiver doctrines that have risen up, it gets a preview of | |
| all of those who object to the role as well, and gets to write | |
| the reasons in light of those comments and objections that have | |
| been filed or evidence that has come out in the adjudicative | |
| process. | |
| And my other objection to Sidmore is I think it is entirely | |
| indeterminate. It is not rule-like. It would produce whatever | |
| outcome the judges who are applying it would see fit to apply. | |
| So, I applaud the Subcommittee and Congress for--and the | |
| drafter of the legislation--for proposing this solution, which | |
| I think is elegant, and the last thing I would like to do is | |
| just offer to you a couple of second-bests in case there are | |
| other ways, you know, to skin the cat, as it were, of too much | |
| authority being given to the executive branch. | |
| Number one is it is widely acknowledged the Chevron | |
| doctrine's implied delegation rationale is a legal fiction, and | |
| it is not something that Congress actually ever adopted itself. | |
| You could more narrowly target reversal of that. Also, I agree | |
| with the major questions doctrine enunciated in Brown & | |
| Williamson and King v. Burwell. That is also something that you | |
| could enshrine, even if you did not go as far as this | |
| legislation. | |
| And the last second-best I offer for you was to overrule | |
| Brand X and allow that in situations where the courts get to a | |
| question first, the agency should be bound; they should not be | |
| able to override judicial decisions. That is turning the | |
| separation of powers on its head. | |
| So, in closing, thank you for the opportunity to speak | |
| today, and the ultimate second-best is to write clear statutes, | |
| and to think about how the administrative agencies might try to | |
| circumvent them, and I would urge you always to keep that in | |
| mind when you pass new legislation. Thank you. | |
| [The prepared statement of Mr. Clark follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Thank you. Mr. Walke? | |
| TESTIMONY OF JOHN D. WALKE, ATTORNEY, CLEAN AIR DIRECTOR, | |
| NATURAL RESOURCES DEFENSE COUNCIL (NRDC) | |
| Mr. Walke. Thank you, Chairman Marino, Ranking Member | |
| Johnson, and Members of the Subcommittee, for the opportunity | |
| to testify today. H.R. 4768, the ``Separation of Powers | |
| Restoration Act of 2016,'' is a deeply flawed and harmful bill | |
| that should not become law. | |
| My oral statement will address two basic topics: the | |
| antiregulatory legislative context that the bill now joins, and | |
| second, the bill's numerous flaws and harmful consequences. | |
| These harms include impaired safeguards for public health, | |
| safety, the environment, financial markets, consumer rights, | |
| civil rights, and other social concerns that Federal regulatory | |
| statutes address. | |
| Additional harms include reduced political accountability, | |
| even more or overburdened courts, increased judicial forum | |
| shopping, greater uncertainty for regulated entities, and the | |
| waste of public resources and tax dollars. | |
| H.R. 4768 overthrows a longstanding and well-founded | |
| framework for judicial review. When acknowledging a regulatory | |
| process grounded in extensive administrative records, lengthy | |
| processes of public input and expert evaluations, that | |
| framework is ultimately carried out by officials appointed and | |
| confirmed by elected officials working under an elected | |
| president. H.R. 4768 substitutes for that system one in which | |
| the judiciary may nullify agencies' reasonable regulations | |
| because one judge or a set of judges may prefer a different | |
| reasonable regulation or outcome. H.R. 4768 permits the | |
| judiciary to ignore administrative records and expertise, and | |
| to substitute its own inexpert views and limited information. | |
| In my testimony I quoted Justice Scalia's opinion for the | |
| Supreme Court in City of Arlington where he said a de novo | |
| review standard practiced by 13 different courts of appeals | |
| would end up applying a totality-of-the-circumstances test, | |
| which Justice Scalia recognized not to be a test at all. He | |
| wrote that ``this would simply be an invitation to ad hoc | |
| judgments that would render the binding effects of agency rules | |
| unpredictable, destroy the whole stabilizing purposes of the | |
| Chevron doctrine, and result in chaos.'' | |
| To impose this kind of judicial fiat seems especially odd | |
| coming from Members of Congress who have repeatedly condemned | |
| supposed judicial overreach, and who constantly point out that | |
| the judiciary is unelected. It seems that the bill's supporters | |
| are so intent on overturning our system for protecting the | |
| public through regulation that they are willing to empower a | |
| Federal judiciary that they have long denounced, even though | |
| Congress has the constitutional authority to change regulatory | |
| statutes, or to alter or reject individual regulations anytime | |
| it wishes. But Congress does not do that because the public | |
| will not support it. | |
| First, I would like to place H.R. 4768 in a broader | |
| legislative context. Since the start of the 112th Congress, | |
| there has been a wave of legislation embodying conservative | |
| political and corporate attacks on our modern system of Federal | |
| regulation and law enforcement by the executive branch. H.R. | |
| 4768 is the latest bill to join that wave. | |
| During the 112th and 113th Congresses, there were 553 House | |
| votes by the majority to weaken environmental and health | |
| safeguards. These attacks failed. Having failed despite | |
| repeated attempts to weaken substantive organic laws they do | |
| not support, anti-regulatory politicians have retreated to | |
| broad attacks on the legal infrastructure backing Federal | |
| regulations. These include, for example, the REINS Act in its | |
| one-chamber legislative veto of regulations. | |
| Now H.R. 4768 joins that list. Members have promoted H.R. | |
| 4768 by condemning a runaway administrative state that is out | |
| of control. Press releases promoting the bill have blasted | |
| numerous Obama administration regulations that the Members | |
| happen not to support. It is clear that support for the bill is | |
| motivated as much as by opposition to Federal safeguards, as it | |
| is by the tug-of-war over separations of power between the | |
| branches. Next, I would like to address some of the numerous | |
| harmful consequences the bill will produce. | |
| First, agencies will issue fewer regulations to carry out | |
| Federal laws and protect Americans. Many more congressional | |
| deadlines will be missed. I expect that is precisely what some | |
| opposed to regulation hope will happen. | |
| Second, agencies will resort to simply repeating ambiguous | |
| and unclear statutory language verbatim in regulations. | |
| Third, for the same reasons regulations will contain far | |
| fewer details to assist State and local regulators with | |
| implementation. | |
| Fourth, uneven application of national laws would adversely | |
| impact the certainty with which businesses could operate across | |
| the country. Justice Scalia's regulatory chaos would ensure. | |
| Agencies also would find it more difficult to adopt | |
| deregulatory rules that would be considered reasonable under | |
| today's Chevron test. In my experience, it is true that starkly | |
| deregulatory rulemakings in prior Administrations have | |
| foundered more often at the first step of Chevron. That would | |
| continue to be the case were H.R. 4768 to become law. | |
| One suspects, therefore, that political and corporate | |
| opponents of regulation, and proponents of deregulation, have | |
| made a calculation that the bill would have disproportionate | |
| adverse impacts on regulations rather than deregulation. That | |
| is almost certainly true, and is a central reason why the bill | |
| should not become law. For all of these reasons, I urge Members | |
| of the Subcommittee to oppose this legislation. Thank you. | |
| [The prepared statement of Mr. Walke follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Thank you. Professor Levin? | |
| TESTIMONY OF RONALD M. LEVIN, WILLIAM R. ORTHWEIN DISTINGUISHED | |
| PROFESSOR OF LAW, WASHINGTON UNIVERSITY IN ST. LOUIS | |
| Mr. Levin. Chairman Marino, Ranking Member Johnson, and | |
| Members of the Subcommittee, thank you for the privilege of | |
| testifying at this hearing. My basic message today is to urge | |
| the Subcommittee to be cautious about trying to legislate on | |
| the challenging and subtle topic of the manner in which courts | |
| should review agency interpretations of statutes and rules. | |
| There has never been consensus about how to analyze these | |
| issues, either before or after the Chevron decision. | |
| For generations, courts have recognized that agencies have | |
| some inherent advantages in interpreting their enabling | |
| legislation. For example, agencies are more familiar with the | |
| complexities in the field than a generalist court can be; they | |
| have the responsibility to make the entire system work; and | |
| they are accountable to the political process in a way that | |
| life-tenured judges are not. At the same time, courts have | |
| always balanced their deference with a commitment to uphold the | |
| law if the agency's interpretation is untenable or | |
| unreasonable. | |
| Now, Chevron changed the way in which courts speak about | |
| these problems, but it did not change the state of affairs very | |
| much. The presumption that ambiguity constitutes a delegation | |
| sounds odd, but we should never forget that it does not exist | |
| in isolation. Courts have always found plenty of ways to work | |
| within and around the two-step formula in order to exert | |
| control over agencies, and the net results are not very | |
| different from what you see in other contexts in which other | |
| verbal formulas are used. | |
| But still, courts and lawyers and judges have been | |
| struggling with the complexities of this problem continuously | |
| since well before the APA was adopted, and you are asking for | |
| trouble if you assume that Congress can clear up these problems | |
| by adding a handful of words to Section 706. Now, one of the | |
| issues on the table today illustrates how difficult this is. | |
| Should the amendment add only the words ``de novo'' to the APA, | |
| or should it also codify the Sidmore test? | |
| Well, if you do the former, you throw out two centuries of | |
| tradition in which courts have found agency interpretations | |
| important to their decision-making. That is what most people | |
| would understand the words ``de novo'' to imply. On the other | |
| hand, if you do the latter, you accomplish very little, because | |
| the Chevron and Skidmore tests tend to lead to about the same | |
| results, no matter what the wording of those tests seems to | |
| say, and you also will send mixed messages that would cause a | |
| great deal of confusion. | |
| You know, until I read Professor Beermann's testimony, I | |
| thought everybody in administrative law agreed that the law of | |
| deference was disorderly and inconsistent prior to Chevron, | |
| during the Sidmore era. So I seriously doubt that trying to | |
| revive that regime by adding a few vague and conclusory phrases | |
| to Section 706 would clear things up, and these days you cannot | |
| use legislative history to cure these ambiguities. | |
| Well, where does this ill-conceived initiative to amend | |
| Section 706 come from? Partly it comes from a desire to shrink | |
| government, but expanding judicial power to overturn agency | |
| actions is a poor way to accomplish this, because in the long | |
| run, liberal judges can use that power to overturn conservative | |
| actions just as easily as the other way around. | |
| The initiative also stems from a belief that this amendment | |
| would recapture the original meaning of the APA, and I find | |
| that notion remarkable. For 70 years, administrative lawyers | |
| have taken it for granted that Section 706 allows courts to | |
| make their own judgments of how to decide questions of law, | |
| with or without deference. So it is startling to hear claims | |
| that all these lawyers, over three generations, have been wrong | |
| about that point in hundreds of thousands of cases. | |
| And ironically, as every member of this panel knows, | |
| Section 706 has been dramatically reinterpreted in multiple | |
| ways over the years to serve the changing needs of the | |
| administrative law system. Those changes range from the Hard- | |
| Look doctrine to the rulemaking record principle. So the sudden | |
| absorption with original intent seems quite baffling to me. | |
| Finally, this initiative grows out of the imaginative | |
| theory that deference to agency interpretations of their own | |
| regulations, so-called Auer deference, poses special dangers | |
| because it gives agencies too much incentive to write | |
| regulations vaguely. And yet, there is no evidence at all that | |
| agencies actually do act on that incentive. You know, people | |
| sometimes criticize Congress for relying too heavily on | |
| anecdotes, but nobody can say that here, because the critics of | |
| Auer deference have not even got an anecdote that supposedly | |
| supports their theory about its impact. Yet, on the basis of | |
| this completely speculative theory, they want to throw out a | |
| doctrine that courts have found helpful for at least three | |
| generations or more. To me, that attack on Auer is not | |
| credible. | |
| In conclusion, Mr. Chairman, the courts are actively | |
| engaged in trying to answering challenging questions about the | |
| right way to reconcile the advantages of deference with the | |
| need for judicial controls. They should be allowed to continue | |
| that process on their own and the legislature should stay out | |
| of it. That concludes my remarks, and I will be happy to answer | |
| any questions. | |
| [The prepared statement of Mr. Levin follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Thank you. Professor White? | |
| TESTIMONY OF ADAM J. WHITE, RESEARCH FELLOW, THE HOOVER | |
| INSTITUTION, ADJUNCT PROFESSOR, THE ANTONIN SCALIA LAW SCHOOL | |
| AT GEORGE MASON UNIVERSITY | |
| Mr. White. Thank you. Chairman Marino, Ranking Member | |
| Johnson, Chairman Goodlatte, and other Members of the | |
| Subcommittee, thank you for inviting me today to testify on | |
| this crucially important bill. In the last 3 decades, Chevron | |
| deference's greatest offender was Justice Antonin Scalia. He | |
| believed that Chevron struck a proper balance between judicial | |
| decision-making under the rule of law, and regulatory policy- | |
| making under constitutional principles of republican self- | |
| government. | |
| But in the last 5 years, Justice Scalia appeared to change | |
| his mind, or at least, he began to reconsider all of this. He | |
| hinted at this in opinions, and he is said to have expressed | |
| significant doubt about Chevron in private conversations, and | |
| one can surmise from Scalia's original pro-Chevron writings, | |
| why he would have changed his mind. | |
| Perhaps he concluded that lower courts were not enforcing | |
| statutory limits rigorously enough. Perhaps he concluded that | |
| modern administrative agencies simply did not respect statutory | |
| limits anymore, and were leveraging Chevron to negate those | |
| statutory limits. Or perhaps he looked around at his colleagues | |
| at the Court and the lower courts, and seeing fewer or no | |
| people--none of his colleagues willing to defend Chevron as | |
| strongly as he had, he decided it was time for the law to move | |
| in a direction that better reflects the realities of the modern | |
| administrative state and the rule of law, which differ starkly | |
| from three decades ago. | |
| But whatever his reasons, Congress should follow his | |
| example, not just in reforming Chevron, but in recalibrating | |
| the law with an eye not just to courts, but also to agencies, | |
| and to Congress itself. As Justice Scalia recognized, this area | |
| of law affects the incentives motivating both Congress and the | |
| agencies. The APA should be amended to improve those incentives | |
| to promote better legislation and better administration. | |
| For Scalia, Chevron's most important quality related not to | |
| the courts or to the agencies, but to Congress. Specifically, | |
| he believed that the law needed to set a stable, predictable | |
| principle for Congress to have in mind as it drafted, enacted, | |
| and amended Federal statutes. | |
| Indeed, Chevron is from the beginning rooted in a | |
| presumption about Congress, namely that Congress intended to | |
| allocate interpretive authority largely to the agencies rather | |
| than the courts. Whether that presumption was accurate or not, | |
| now is a good time for Congress to engage the issue directly. | |
| Whether it ultimately enacts the ``Separation of Powers | |
| Restoration Act of 2016'' in its current form, or amends the | |
| legislation to set other standards for judicial review, | |
| Congress needs to take the lead. Perhaps the most pressing | |
| constitutional debate of our time is that of the proper | |
| relationship between Congress, the courts, and the | |
| administrative state. It affects everything from financial and | |
| environmental law to regulation of the Internet, and | |
| increasingly to regulatory burdens on religious liberty. | |
| Thank you for grappling with this issue, and thank you for | |
| inviting me to testify today. | |
| [The prepared statement of Mr. White follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Thank you. The Chair now recognizes Chairman of | |
| the full Committee, Chairman Goodlatte, for his 5 minutes of | |
| questioning. | |
| Mr. Goodlatte. Thank you very much, Mr. Chairman. Professor | |
| Levin, I will start with you. I will pick up where you left | |
| off. Congress should not meddle with this jockeying that is | |
| going on between the judiciary and the regulatory bureaucracy | |
| in terms of how the courts should decide what deference to give | |
| them to how they interpret the regulations. | |
| But, I mean, this is the very core of why Justice Scalia | |
| was after the fact questioning the merits of the decision that | |
| he was a part of, and that is why would Congress not want to | |
| assert its legislative powers when what we are seeing more and | |
| more--we do not need anecdotal evidence, we can just look at | |
| the statistics of the rising number of regulations that are | |
| written each year, and particularly the number of regulations | |
| that come out based upon old laws, laws written 20, 30, 40 | |
| years ago where the bureaucracy comes back and says, ``You know | |
| what? | |
| We think that law is out of date now. We will just retool | |
| our regulations,'' does not have to go back to Congress at all | |
| for Congress to write a new law. All that has to happen is for | |
| us to rewrite this regulation. The courts will look at it, and | |
| the courts will say, ``Well, you know what, if that is what the | |
| bureaucracy thinks that regulation means, then we should give | |
| deference to that.'' So I very much disagree with that | |
| assessment, and I would be happy to give you an opportunity to | |
| respond. | |
| Mr. Levin. Thank you for the chance to respond to that. | |
| First, I do want to dissociate myself from Mr. White's claim | |
| that Justice Scalia was rejecting Chevron. Whatever he said in | |
| private conversations, in his public pronouncements in the City | |
| of Arlington case in 2013, he strongly reaffirmed it, | |
| challenged the dissent for taking it on. In his Michigan | |
| decision shortly before his death, he---- | |
| Mr. Goodlatte. Well, let's get to the core of my point, | |
| which is what is the role of the Congress if the regulatory | |
| bureaucracy never has to come back here? When they see a need | |
| for a change in the law, they just change it themselves. | |
| Mr. Levin. Well, Mr. Chairman, as you may know, I have not | |
| been a fan of the Committee's regulatory reform effort. | |
| Mr. Goodlatte. I do not care whether you are a fan or not. | |
| Reply to my question. | |
| Mr. Levin. But what I am saying is Congress cannot | |
| effectively deal with the scope of review in two or three | |
| words, because it creates enormous complexities. It is just a | |
| few words. There would be endless debates about what it means. | |
| I am not saying it is beyond your province. I am just saying | |
| you cannot effectively do it. | |
| Mr. Goodlatte. But what do we do when a regulatory | |
| bureaucracy says, ``You know what, we are going to reinterpret | |
| this decades-old law and write new regulations because we think | |
| those are more pertinent to the situation we are trying | |
| today?'' | |
| Mr. Levin. I think you should rewrite the laws to say what | |
| you want them to mean. | |
| Mr. Goodlatte. Sure. But that is this Congress compared to | |
| a Congress of 40 years ago. If we cannot get it back here, and | |
| they can bypass the Congress by writing regulations that they | |
| want to write--and for us to change that, we have to have it | |
| passed through the House, have to have it passed through the | |
| Senate where they have archaic rules requiring a 60-vote | |
| majority, and then we have to withstand a presidential veto if | |
| the President so chooses, whereas the bureaucrat--all they have | |
| to do is rewrite regulations on laws that were written long | |
| ago, and in no way contemplated the new uses that they are | |
| imputing to those old laws. What do we do about that? | |
| Mr. Levin. Well, I think you have mechanisms of oversight. | |
| But I think you have to recognize that when you give agencies | |
| authority to act, then they exercise that authority and they | |
| have the legal right to act in that authority. | |
| Mr. Goodlatte. So what is wrong with telling the courts | |
| ``you look at the law yourselves; do not give deference to one | |
| side or the other in court case?'' | |
| Mr. Levin. If Congress tells the agency to use discretion, | |
| the court would be defying the statute if it did not allow the | |
| agency to use the discretion. | |
| Mr. Goodlatte. I do not think many statutes overtly say, | |
| ``Use discretion.'' I think what we do is we do not fill in all | |
| the details. We expect them to do so within the black-letter | |
| law that is in front of them. And when they do not do that and | |
| then the courts look at those regulations, I think the courts | |
| are well within their authority to make their own decision | |
| rather than give deference to the bureaucracy, because you are | |
| just simply--both the courts and the Congress are then | |
| transferring power to the executive branch that we should not. | |
| Mr. Levin. Sometimes what we call deference is simply | |
| recognizing that they used legally delegated authority that the | |
| court may not second-guess, and that is often considered a | |
| question of law, and if you pass a statute saying the court | |
| shall not allow the agency to use that discretion, which this | |
| statute appears to do---- | |
| Mr. Goodlatte. Mr. Duffy, would you like to jump in here? | |
| Mr. Duffy. I certainly agree that--he just made a point | |
| that Jack Beermann made in his testimony, which is that a lot | |
| of times, the practice is not really deference. In Chevron | |
| itself--and this is actually exactly what you said, that | |
| sometimes Congress writes a framework, and expects the | |
| administrative agency to put in reasonable rules. That actually | |
| what was happening in Chevron, and I was just looking back at | |
| my article that dealt with this some years ago. | |
| The Solicitor General appearing before the court in Chevron | |
| itself did not come up with some newfangled deference test. | |
| Instead, they began their legal argument with quoting the | |
| rulemaking power of the agency in full, which is what this | |
| Congress gave to the agency. | |
| And the basic point of my testimony, I think, and also, I | |
| think, Professor Beermann's testimony, is that this legislation | |
| would force the agencies to justify their authority on the | |
| basis of statutory law. And that is, I think, the core of what | |
| is at stake here and I very much believe that Congress does | |
| have something to say about this. | |
| The entire APA, which is something that all of us law | |
| professors teach in administrative law and have taught for | |
| decades, that is Congress' view about how agencies should be | |
| structured. I think that is perfectly appropriate for | |
| representative democracy to have the greatest deliberative body | |
| in that democracy think about how power should be allocated. So | |
| I strongly disagree with the idea that Congress should not have | |
| anything to do with it. That is the very statute that I teach | |
| through a course called ``administrative law.'' I think that | |
| your legislation is perfect to try to force the courts to go | |
| back and say, ``What we are really looking for is to find | |
| administrative--to find agency authority if they have it.'' | |
| Mr. Goodlatte. Thank you. I agree. Thank you, Mr. Chairman. | |
| I yield back. | |
| Mr. Marino. The Chair recognizes the Ranking Member, Mr. | |
| Johnson. | |
| Mr. Johnson. Thank you. Gosh, we are talking about | |
| regulatory reform, judicial deference to agency rulemaking, | |
| restoring, as you put it, Professor Duffy, restoring the | |
| traditional role of courts to determine what the law is. When | |
| has there ever been a time when there has not been judicial | |
| deference to agency rulemaking? | |
| Mr. Duffy. If that is a question to me, I think that---- | |
| Mr. Johnson. It is. | |
| Mr. Duffy. I think that the answer is that even today, for | |
| example, with the patent system there is no deference to the | |
| Patent Office's view of what the law is, and that is a good | |
| example of why the reasoning of Chevron does not even hold up | |
| in modern doctrine. The Patent Office is highly expert. They | |
| are not even an independent agency, they are in the Department | |
| of Commerce. It is a very complicated statute that has vague | |
| words in it, and yet the courts have always--and I am not just | |
| talking about for 20 years or 30 years, I am talking about for | |
| hundreds--for over 100 years, the courts have determined the | |
| meaning of those statutory words ``de novo.'' | |
| Mr. Johnson. Well, Professor Levin, would you respond to | |
| that, whether or not the--in the situation of the Patent | |
| Office, de novo review. | |
| Mr. Levin. Well, I think Professor Duffy is more the expert | |
| on the patents system than me. I do know that there is a | |
| specialized court--the Federal circuit--that passes on patent | |
| cases, and so Congress has specifically set an expert tribunal | |
| where you would expect to have more intrusive judicial review | |
| than elsewhere. But I would say generally the norm is | |
| deference, and has been throughout our history. | |
| Mr. Johnson. So, when the Congress decides that it wants to | |
| clarify by statute a rule that has been interpreted and placed | |
| in effect by Federal agency, a rule that has been promulgated, | |
| and the Congress decides that it wants to clarify that area of | |
| the law by statute, it always has the ability to do so. Is that | |
| not correct? | |
| Mr. Levin. It can revise the substance of the law, if that | |
| is what your question is, and that is true. The Chairman did | |
| point out that it is hard to get such a law passed, but it is | |
| within the power of Congress to do it. | |
| Mr. Johnson. And that is due to, basically, legislative | |
| ossification. We talk about regulatory or rulemaking | |
| ossification, but we have had legislative ossification around | |
| here for about 5 years or so, and I get---- | |
| Mr. Levin. That is because of the legislative ossification | |
| of the past 5 years plus the inherent nature of the | |
| constitutional system with bicameralism and presentment. | |
| Mr. Johnson. Which is a good thing when it works. | |
| Mr. Levin. Right. | |
| Mr. Johnson. If there is gridlock and it does not work, | |
| then we do not get anything done and we continue to ossify our | |
| legislation which then impacts what Federal agencies would do | |
| to try to bring a rule up to modern standards and practical | |
| realities of the day. | |
| Do you contend, Professor Duffy, that Federal judges are | |
| politically accountable and should undertake the construction | |
| of rulemaking with their awesome power and their lifetime | |
| power? Are they---- | |
| Mr. Duffy. I do not contend that Federal judges are | |
| politically accountable. The Framers of our Constitution made | |
| the Federal judiciary very independent by giving them life | |
| tenure. | |
| Mr. Johnson. So is it not consistent then that the Federal | |
| courts would--or that there would be judicial deference to | |
| agency rulemaking? | |
| Mr. Duffy. No, I do not think so. I think that the crucial | |
| question is what does Congress want? Now, if Congress wants an | |
| agency to have a lot of power, it can give an agency rulemaking | |
| power and that will be a lot of power. You do not need | |
| deference to understand---- | |
| Mr. Johnson. Every agency has rulemaking power. | |
| Mr. Duffy. If the agency has rulemaking power, I still do | |
| not think you need deference. I think you just need to say that | |
| the agency has power to promulgate reasonable rules as to---- | |
| Mr. Johnson. Mr. Walke, what would your response be? | |
| Mr. Walke. My response to much of this talk is that I think | |
| Americans are actually more concerned about the harms to the | |
| real world that would be unleashed and imposed by this bill. | |
| The press release is touting this bill--identify a laundry list | |
| of regulations and safeguards that Members happen not to | |
| support but do not muster the votes under the Congressional | |
| Review Act to overturn, and that is what Americans care about. | |
| And Marbury v. Madison and the like is very interesting, but | |
| this bill would create more harms and impose them on Americans. | |
| Mr. Johnson. Because it would hurt the ability of our | |
| Federal Government to protect the health, safety, and welfare | |
| of the people? | |
| Mr. Walke. That is correct. The supporters of the bill are | |
| touting the fact that it would overturn more regulations than | |
| are overturned today. | |
| Mr. Johnson. Thank you, and I yield back. | |
| Mr. Marino. The Chair now recognizes the gentleman from | |
| Texas, Congressman Ratcliffe. | |
| Mr. Ratcliffe. Thank you, Chairman Marino. I want to thank | |
| the witnesses for being here today. You know, the reason I | |
| drafted this legislation is because if you talk to everyday | |
| Americans, as I do, particularly small business owners, you | |
| hear a consistent message, and that is that our regulatory | |
| system is broken when we have got unelected bureaucrats taking | |
| ambiguously written laws and issuing regulations that vastly | |
| overstate their power. | |
| And, you know, I have not found myself in agreement with | |
| Chief Justice Roberts often recently, but even he agrees with | |
| me on this issue. | |
| As the Chairman pointed out, just a few years ago he wrote, | |
| ``The administrative state wields vast power and touches almost | |
| every aspect of daily life. The Framers could hardly have | |
| envisioned today's vast and varied Federal bureaucracy and the | |
| authority administrative agencies now hold over our economic, | |
| social, and political activities.'' | |
| The practice of courts deferring to agencies' expansive | |
| interpretation of their power as directed under Chevron has | |
| created a serious problem with our regulatory system, and it is | |
| one that really has eroded our constitutional systems of checks | |
| and balances. And as you will hear me say frequently as we move | |
| through this process, this is not a partisan issue, or at least | |
| it should not be. | |
| This is not about Republicans versus Democrats, it is about | |
| article I versus article II. It is about respecting | |
| constitutional lanes of authority. This is not so much about | |
| executive overreach as it is about legislative under-reach. | |
| Congress is supposed to make laws, not unelected bureaucrats in | |
| the executive branch. | |
| And so I would urge my colleagues, my colleagues across the | |
| aisle, Republicans and Democrats should support this as a | |
| solution to a problem that all Americans, Republicans and | |
| Democrats, want to see fixed. | |
| And, Professor Duffy, I agree with you. This situation | |
| should never have occurred in the first place. The legislative | |
| history of the Administrative Procedures Act resulted in the | |
| explicit agreement amongst the lawmakers that there should be | |
| no deference on issues of law, and that the reviewing courts | |
| should decide all relevant questions of law and interpret | |
| constitutional and statutory provisions. | |
| I think the legislative history here is very clear, and in | |
| drafting H.R. 4768, my goal was to restore court review of | |
| agency interpretation as intended under the Administrative | |
| Procedures Act, and to restore the proper role of the judicial | |
| branch under the constitution as enumerated in Marbury v. | |
| Madison. And I think that this bill accomplishes that, and I | |
| know that a majority of you here agree with me, at least in | |
| part. | |
| Professor Duffy, I want to start with you. I want you to | |
| speculate with me for a minute. If the bill were to be enacted | |
| with the stylistic technical corrections that you offer, how do | |
| you think this would impact the regulatory process? | |
| Specifically, I want to know--how do you think it would | |
| impact rulemaking, and in turn, how would the rulemaking impact | |
| litigation? Because I know Professor Levin here has indicated | |
| that he thinks that litigation would increase, whereas I think | |
| from your testimony you agree with me that in fact it would be | |
| reduced. So if you would address those for me. | |
| Mr. Duffy. Yes. I think, as I said in my written testimony, | |
| that increasingly there is an enormous amount of litigation | |
| around Chevron, which is completely collateral to the basic | |
| question of whether the agency has authority under the | |
| statutory law to do what it wants to do. | |
| So instead of a brief focusing on that central issue, which | |
| is about what the law written by this Congress intended for the | |
| agency to do--and some of the provisions that the agency can | |
| rely on, of course, are rulemaking powers which give the agency | |
| quite a bit of power--but instead of focusing on that central | |
| issue and focusing on the law, we have an enormous set of | |
| doctrines now about Chevron, when it does apply, when it does | |
| not apply, and when there is just this giant hole through it | |
| which King v. Burwell created just last year that says, ``Well, | |
| if it is really important, then it does not apply at all.'' | |
| And already I have seen that the litigation at the D.C. | |
| circuit has increased on these issues. For example, in the case | |
| about the Internet, the FCC's regulation of the internet, there | |
| is an entire collateral litigation about whether Chevron | |
| applies or not, that the court will have to go through before | |
| it gets to the basic question which I think is the central | |
| question, which is whether or not this Congress gave the | |
| requisite authority to the agency to write the rules. And so I | |
| think the legislation--I think it is great. | |
| I think it is very elegant, and it would simplify things | |
| and force courts to focus more on statutory law, which I think | |
| is a good thing. | |
| Mr. Ratcliffe. Thank you, Professor. Professor White, I | |
| appreciated your comments about Justice Scalia and the shift | |
| there, and I will correct Professor Levin; it is more than just | |
| cocktail talk. In Perez v. Mortgage Bankers, Justice Scalia in | |
| the concurring judgment said, ``The problem is bad enough and | |
| perhaps insoluble if Chevron is not to be uprooted.'' | |
| But I wanted to ask you, Professor White, about--you | |
| referenced Professor Walker in your testimony and the fact | |
| that, in his findings, that 94 percent of rule drafters that he | |
| surveyed knew Chevron deference by name and 90 percent | |
| indicated they drafted rules with Chevron in mind. So, in your | |
| opinion, how do you think rulemaking with Chevron in mind | |
| changes the ultimate outcome of the rule? | |
| Mr. White. Well, administrators writing rules with an eye | |
| to Chevron understand that they have more room to play within | |
| the scope of the statute, that they already have a thumb on | |
| their side of the scale in litigation that will ensue, that | |
| they can take more aggressive legal positions with less | |
| thorough reasoning than they might need to if they were put to | |
| a harder test on judicial review. | |
| Now, Professor Walker did not, if I recall correctly, did | |
| not get into the specific ramifications. He talked about the | |
| fact that there was broad awareness of Chevron at the agencies, | |
| so I do not want to say too much, but it does not take a Ph.D. | |
| in political science to see how the incentives are going to | |
| work under Chevron. It is what Justice Scalia recognized, for | |
| better and for worse, throughout his career. | |
| Mr. Ratcliffe. Thank you. My time has expired, but Mr. | |
| Chairman, if I can just--I want to address something that Mr. | |
| Walke said, because you referred in both your written testimony | |
| and your oral testimony, saying that my legislation is ``deeply | |
| flawed and harmful bill that should not become law,'' which did | |
| not exactly hurt my feelings. | |
| But as I read on in your testimony, when you compared it to | |
| a wave of legislation attacking, ``modern system of Federal | |
| regulation akin to the REINS Act,'' I know you intended that as | |
| a harsh criticism, but I have got to tell you, that is about as | |
| high praise and compliment as I could ask for. So while you did | |
| not intend that as an endorsement, I appreciate it, and I yield | |
| back. Thank you. | |
| Mr. Marino. The Chair now recognizes the gentleman from | |
| California, Congressman Issa. | |
| Mr. Issa. Thank you. And, Professor Duffy, I am going to | |
| follow up because you made a good point and it got sort of cast | |
| away a little bit by Professor Levin. The fed circuit was set | |
| up to review, and they do review somewhat de novo, even that de | |
| novo review by the district courts, and it was because the | |
| decisions coming out of the district courts sometimes, or | |
| often, were going all the way to the Supreme Court. | |
| So the Special Appellate exists only because of the | |
| importance of not clogging the Supreme Court. Is that not true? | |
| That is basically why the fed circuit exists for purposes of | |
| patents. | |
| Mr. Duffy. Well, the Federal circuit was created for a | |
| variety of reasons that are complex, and I want to make it | |
| clear that the absence of deference long predated the Federal | |
| circuit. | |
| Mr. Issa. Exactly, and it is interesting; the Federal | |
| circuit does not show a lot of deference toward the district | |
| court decisions. But I want to get one thing quickly in the | |
| record. Markman, which is a recent Supreme Court ruling back | |
| in--well, not recent anymore. | |
| I have been here 15 years; it predated my congressional | |
| time. But the decision in the Markman case that, in fact, the | |
| judge was to rule on the meaning of the patent, not--and did | |
| not have to rely--could rely on the source documents and the | |
| record, the wrapper, if you will, and did not have to rely on | |
| any conclusion that either the patent holder or even the PTO | |
| reached. Is that not true? | |
| Mr. Duffy. Well, the Court did say that the job of | |
| determining the meaning of the patent was for the courts alone, | |
| and that certainly is true. In that particular case, they did | |
| not have before it an agency construction of the patent, so | |
| they did not, I think, address the relationship between the | |
| courts and the agency in that case, but one would think that, | |
| at least on issues of law, that there would be--of pure law-- | |
| that there would be no deference. | |
| Mr. Issa. You know, there is a number of cases in the FCC | |
| and their theory that they have authority that they did not | |
| have for the first 20 or so years of the internet, that | |
| suddenly they believe they have, or the Federal Trade | |
| Commission that has decided that cyber security over personal | |
| identifiable information, meaning hackers getting into your | |
| site, they have authority. These forms of overreach are not the | |
| same ones we are talking about often, because they are not | |
| about rulemaking, they are about seizing authority, are they | |
| not? | |
| Mr. Duffy. Well, they do create--they do seize this | |
| authority usually through their rulemaking authority, though I | |
| guess the Federal Trade Commission might do it through a | |
| variety of other ways as well. | |
| Mr. Issa. Okay. So, for all of us here on this side of the | |
| dais, would you say that there is--and this is not--does not | |
| specifically go to this legislation--but that, at the time the | |
| Congresses passes a law and the first set of rules are being | |
| created, clean air, clean water, et cetera, that there is a-- | |
| and I will let others opine on this--there tends to be a set of | |
| rules that often resemble what Congress intended, and that it | |
| is the continued and unfettered rulemaking over generations | |
| that often create the ability for an agency to take something | |
| never intended in the law, and simply create a rule because | |
| some new problem existed, a problem not envisioned in the law, | |
| but also not envisioned to be handed with that law to the | |
| regulators. Is that kind of a fair statement about the effect | |
| of time? | |
| Mr. Duffy. Well, I think the effect of time is interesting | |
| because, again, my overall overarching theme is that the courts | |
| and the agencies should look to the Congress to figure out what | |
| Congress--what kind of power Congress wanted to give the | |
| agencies. | |
| Mr. Issa. And that is a moment in time not adjusted for the | |
| time 20 years later in which they are making a new rule, is | |
| what I was saying. | |
| Mr. Duffy. One thing I think is interesting is some | |
| agencies have a super-rulemaking power that expressly allows | |
| them to modify statutory law, so rulemaking powers exist on a | |
| continuum. And if Congress wants to give an agency broad | |
| rulemaking authority, even as some agencies have like--in | |
| certain areas the FCC has this power; in certain areas---- | |
| Mr. Issa. Or the Securities Exchange Commission. There are | |
| a number of them. | |
| Mr. Duffy. You can give that power to the agencies. So I | |
| again think that it depends on what the Congress wants. If | |
| Congress wants to give very broad rulemaking power, it is | |
| within their authority. | |
| Mr. Issa. Again, I am going to follow up just with a sort | |
| of a last question, because we are out of time. Congress has | |
| obviously not intended to have new laws created decades and | |
| decades after without a review, but Congress also did not-- | |
| often did not put in a stop on rulemaking or, in fact, a sunset | |
| on an agency if not reauthorized. Are those not two of the | |
| elements that would not impact, if you will, Professors Levin | |
| and Walke, your statement that somehow we are all going to be | |
| hurt? | |
| Because the basic concept of reauthorizing rulemaking and/ | |
| or reauthorizing agencies and thus their rulemaking would not | |
| be a great burden for the Congress, but ultimately might rein | |
| in this question of what is happening decades later without | |
| action. Mr. Clark? | |
| Mr. Clark. I agree with that, Congressman Issa, very much. | |
| Mr. Issa. So, even though it is not in the bill, would you | |
| all agree that those are elements in legislative activity that | |
| we should consider when making laws, notwithstanding your | |
| disagreement on other parts? Professor? | |
| Mr. Levin. Is this question should you have a sunset | |
| provision for rules to be periodically reauthorized? That has | |
| not worked out very---- | |
| Mr. Issa. Or, in fact, a new rule is to be proposed. In | |
| other words, the authority--an agency under a given law relying | |
| on that law with no intervening activity, let's say 5 or 10 | |
| years, you must either reauthorize the act or reauthorize the | |
| continued rulemaking, for example. And my reason for it is | |
| simple: It does appear, having looked at your testimony, having | |
| looked at how Chevron is often used against ancient rulings of | |
| Congress and modern dilemmas, do we not--in fact, part of | |
| taking back our responsibility could or should be to set a | |
| limit? | |
| I pass a new law, the Affordable Care Act. You get X amount | |
| of years to write legislation and you do not get to come back | |
| to us--or you must come back to us either for reauthorization | |
| of the Act, or reauthorization of rulemaking. Otherwise, the | |
| fact is how long do we let you make law after we pass one? And | |
| I think I am going to have to call it quits here. Any final | |
| comments? | |
| Mr. Walke. My fear, in light of recent years of Congress, | |
| was that it would result in kind of a default nullification of | |
| laws and---- | |
| Mr. Issa. It would not be nullification of laws. It would | |
| be no new laws. Anyone else on the other side of that one want | |
| to weigh in? | |
| Mr. Beermann. I just want to point out without going too | |
| deeply into it that the sort of activity you are talking about | |
| is viewed much more skeptically applying the Sidmore factors | |
| than it has been under the Chevron factors in that if a statute | |
| that was passed long ago suddenly gets radically reinterpreted | |
| the courts tend to be skeptical about that, whereas under | |
| Chevron, as long as the statute is ambiguous or silent on the | |
| issue, the courts would defer. | |
| Mr. Issa. Thank you. Thank you, Mr. Chairman. | |
| Mr. Marino. Thank you. The Chair recognizes Mr. Johnson. | |
| Mr. Johnson. Mr. Chairman, I ask that the statement of the | |
| Ranking Member be submitted for the record without objection. | |
| Mr. Marino. So ordered. | |
| [The prepared statement of Mr. Conyers follows:] | |
| [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] | |
| __________ | |
| Mr. Marino. Gentlemen, we are going to go vote. I am going | |
| to forego our asking questions because I do not want to keep | |
| you here. I would love to come back because I would have you | |
| all to myself for the rest of the night, but I will not do that | |
| to you. | |
| So this concludes today's hearing. Thanks to all the | |
| witnesses for attending. Any Member and all Members will have 5 | |
| legislative days to submit additional written questions for the | |
| witnesses or additional material for the record. The hearing is | |
| adjourned. | |
| [Whereupon, at 2:23 p.m., the Subcommittee adjourned | |
| subject to the call of the Chair.] | |
| [all] | |
| </pre></body></html> | |