[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
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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:]
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__________
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:]
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__________
Mr. Marino. Thank you. Professor Beermann?
TESTIMONY OF JACK M. BEERMANN, PROFESSOR OF LAW AND HARRY
ELDWOOD WARREN SCHOLAR, BOSTON UNIVERSITY SCHOOL OF LAW
Mr. Beermann. Thank you very much, Chairman Marino and
Ranking Member Johnson, and distinguished Members of the
Subcommittee. It is truly heartwarming as an administrative law
professor to see the Committee spending such dedicated time and
attention to this important issue that many of us have been
working on for years. And I am a Chevron skeptic, as the
material included with my written submission reveals, and the
language of H.R. 4768 would certainly be a complete reversal of
Chevron and related doctrines.
But while I share the view that the Chevron doctrine has
gone too far and has become too confusing, the long history of
judicial deference to agency legal decisions may point in favor
of a less complete rejection of deference.
Long before Chevron, it was generally understood that
reviewing courts should pay close attention to agency reasoning
when reviewing agency legal decisions, especially agency
construction of the agency's enabling act in order to ensure
that agencies remained within their delegation from Congress.
What was extreme about Chevron was its assumption that
statutory silence or ambiguity virtually always indicates
Congress's intent to delegate interpretive authority to the
administrative--to the administering agencies. Even if this
assumption was erroneous, that does not mean that Congress does
not sometimes delegate interpretive authority to an agency. In
highly technical or sensitive areas in which Congress expects
agencies to apply expertise, ambiguity might be an indication
that Congress might want a reviewing court to be highly
attentive to the agency's views.
For example, when Congress delegated authority to the
Federal Communications Commission to award broadcast licenses
in the public interest, convenience, and necessity, Congress
certainly intended for the agency to be primarily responsible
for determining the meaning of those general terms. It would be
a fundamental shift if H.R. 4768 were understood to forbid
reviewing courts from deferring to agency determinations of
that or similar statutory language.
It has also been suggested that H.R. 4768 would have the
salutary effect of introducing strict construction of
delegations of authority to agencies, and that this would be
positive. There are reasons, however, to be cautious on both of
these scores.
First, merely instituting de novo review of agency
interpretations of statutes would not necessarily mean that
such delegations would be construed narrowly. There are many
traditional methods of statutory construction that point toward
broad constructions of statutes, including delegations of
authority to agencies. Second, although there are circumstances
in which, as a policy matter, it is appropriate to read
delegations of authority narrowly, sometimes Congress intends
agencies to have broad authority to address the social problems
within its jurisdiction.
For example, narrowly construing agency delegations
regarding communicable diseases or chemical contamination could
have serious social negative--negative social effects. Before
Chevron, traditional legal doctrine was by and large successful
at distinguishing those situations in which broad
interpretation of agency authority is more appropriate than
narrow interpretation.
Also, while I share Chief Justice Roberts' concern that
agencies should not have free rein to determine their own
jurisdiction, I am afraid that it would be virtually impossible
to craft statutory language that would distinguish
jurisdictional from nonjurisdictional matters of statutory
interpretation. So, although I agree that H.R. 4768 is a
laudable effort to dispel some of the negative consequences and
confusion caused by the Chevron doctrine, I am afraid that it
would disable reviewing courts from taking into account the
views of an administering agency on questions of statutory
interpretation that would aid in advancing Congress's intent.
So in my prior testimony, I suggested language under which
Congress could react to all the problems of Chevron deference,
without totally ruling out judicial deference to agency views.
My suggestion would be, and I will repeat it here, to add
language to APA 706 as follows:
``Unless expressly required otherwise by statute, the
reviewing court shall decide all questions of law de novo, with
due regard for the views of the agency administering the
statute, and any other agency involved in the decision-making
process.''
Under this standard, courts would apply the pre-APA
Skidmore factors for determining how much to defer to agency
interpretation, with flexibility to shape deference to meet
modern concerns.
In my view, Skidmore includes a sensible set of criteria
for determining whether an agency interpretation is worthy of
deference. In fact, the term ``deference'' may be a misnomer in
this context. When Congress has delegated to an agency the
power to administer a statute, and the agency has thoroughly
considered a problem and provided persuasive, valid reasoning
for its consistent view of the meaning of the statutory term, a
reviewing court is likely to be convinced that the agency has
made a correct decision, or at least a decision that is as
likely to be correct as any contrary view advanced by the
challengers on judicial review.
So this reform, in my view, would restore to Congress the
ultimate decision to determine how much deference there should
be to agency legal decisions, and that is of course where such
authority belongs. Thank you.
[The prepared statement of Mr. Beermann follows:*]
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*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
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__________
Mr. Marino. Thank you. Mr. Clark?
TESTIMONY OF JEFFREY BOSSERT CLARK, SR.,
PARTNER, KIRKLAND & ELLIS LLP
Mr. Clark. Thank you, Chairman Marino, Ranking Member
Johnson, and distinguished Members of the Committee, and
thank--is it not on? There we go. Apologies.
Thank you, Chairman Marino and Ranking Member Johnson and
Members of the Committee, for the opportunity to appear before
you today to speak about the ``Separation of Powers Restoration
Act of 2016.'' It is important that the title that you gave to
this legislation--it indicates, you know, where you are coming
from, which I agree with.
You know, the separation of powers was an idea crystallized
by the French thinker Montesquieu, and the Founders knew a good
idea when they saw one, and they embedded that idea into the
structure of the constitution and the difference between
articles I, II, and III.
The Chevron doctrine is entirely foreign to that classical
conception of the Constitution, and I would submit to you that
there is zero evidence that the Congress that adopted the APA,
intended that to occur, intended such massive delegations or
intended to violate the separation of powers. And so I agree
with Professor Duffy that what your Act is doing is really
restoring not just the separation of powers, but the original
meaning of the APA which, in any event, even if there were
ambiguity, is something that should be interpreted consistent
with the Constitution, or to avoid separation of powers
concerns.
The Chevron doctrine was never squared with the separation
of powers, which makes it a defective decision on its own, and
there is a lot of talk about Chevron being a case about
expertise, but I would submit to you that it is a very curious
decision if that is what it is. It talks about expertise, but
the test that it adopts has ``expertise'' nowhere to be found
in it.
The first step of the Chevron two-step is to look at the
text of the statute, and the second step is, once again, to
look at the text of the statute in terms of whether the agency
has produced a reasonable construction of it. There is no
portion of the Chevron test that has expertise built into it,
so to defend the Chevron decision on expertise grounds, it
seems to me, makes little sense and is something that, if it is
being supported on that ground, it must be really supported
because of results that it produces that those who favor those
results like.
In practice--and this is a perspective I can help to bring
to you as being a practitioner, as being someone who served in
the government--I can tell you that, you know--and I set it out
in my analysis--there was a particular compromise that animated
Chevron. I think that the extent to which that compromise was
ever really adhered to, it has broken down. The approach that I
see--and I think, to be fair, I saw it not just in this
Administration, but I also saw it to some extent in the Bush
administration--I saw approaching the statute with a particular
idea in mind about what public policy in some area should be.
It did not look first to the statute to see what instructions
you, as Members of Congress, had given the executive branch in
a particular area.
It instead looked at those constraints as inconveniences to
be dealt with, essentially, and so various smart lawyers are
sicced on the problem of, ``How do we get this through the
Chevron two-step? How do we secure deference?'' And from that
perspective, Chevron, I think, has been a failed experiment as
well.
There has been a lot of talk about Sidmore deference as
well, and I would caution you, and disagree with those who say
that Sidmore deference should be the substitute, Chevron should
be wiped off the map, adopt Sidmore. My first question about is
Sidmore is, what work is it really doing? It is essentially
urging courts to take seriously the reasons that agencies have
given. That is, you know, number one, what courts already do
when they read briefs in the Supreme Court from the Solicitor
General or from the Justice Department in cases.
And in fact, the agency already has an immense
institutional advantage because it gets to pre-brief those
issues by writing the decision, and also, given administrative
law waiver doctrines that have risen up, it gets a preview of
all of those who object to the role as well, and gets to write
the reasons in light of those comments and objections that have
been filed or evidence that has come out in the adjudicative
process.
And my other objection to Sidmore is I think it is entirely
indeterminate. It is not rule-like. It would produce whatever
outcome the judges who are applying it would see fit to apply.
So, I applaud the Subcommittee and Congress for--and the
drafter of the legislation--for proposing this solution, which
I think is elegant, and the last thing I would like to do is
just offer to you a couple of second-bests in case there are
other ways, you know, to skin the cat, as it were, of too much
authority being given to the executive branch.
Number one is it is widely acknowledged the Chevron
doctrine's implied delegation rationale is a legal fiction, and
it is not something that Congress actually ever adopted itself.
You could more narrowly target reversal of that. Also, I agree
with the major questions doctrine enunciated in Brown &
Williamson and King v. Burwell. That is also something that you
could enshrine, even if you did not go as far as this
legislation.
And the last second-best I offer for you was to overrule
Brand X and allow that in situations where the courts get to a
question first, the agency should be bound; they should not be
able to override judicial decisions. That is turning the
separation of powers on its head.
So, in closing, thank you for the opportunity to speak
today, and the ultimate second-best is to write clear statutes,
and to think about how the administrative agencies might try to
circumvent them, and I would urge you always to keep that in
mind when you pass new legislation. Thank you.
[The prepared statement of Mr. Clark follows:]
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__________
Mr. Marino. Thank you. Mr. Walke?
TESTIMONY OF JOHN D. WALKE, ATTORNEY, CLEAN AIR DIRECTOR,
NATURAL RESOURCES DEFENSE COUNCIL (NRDC)
Mr. Walke. Thank you, Chairman Marino, Ranking Member
Johnson, and Members of the Subcommittee, for the opportunity
to testify today. H.R. 4768, the ``Separation of Powers
Restoration Act of 2016,'' is a deeply flawed and harmful bill
that should not become law.
My oral statement will address two basic topics: the
antiregulatory legislative context that the bill now joins, and
second, the bill's numerous flaws and harmful consequences.
These harms include impaired safeguards for public health,
safety, the environment, financial markets, consumer rights,
civil rights, and other social concerns that Federal regulatory
statutes address.
Additional harms include reduced political accountability,
even more or overburdened courts, increased judicial forum
shopping, greater uncertainty for regulated entities, and the
waste of public resources and tax dollars.
H.R. 4768 overthrows a longstanding and well-founded
framework for judicial review. When acknowledging a regulatory
process grounded in extensive administrative records, lengthy
processes of public input and expert evaluations, that
framework is ultimately carried out by officials appointed and
confirmed by elected officials working under an elected
president. H.R. 4768 substitutes for that system one in which
the judiciary may nullify agencies' reasonable regulations
because one judge or a set of judges may prefer a different
reasonable regulation or outcome. H.R. 4768 permits the
judiciary to ignore administrative records and expertise, and
to substitute its own inexpert views and limited information.
In my testimony I quoted Justice Scalia's opinion for the
Supreme Court in City of Arlington where he said a de novo
review standard practiced by 13 different courts of appeals
would end up applying a totality-of-the-circumstances test,
which Justice Scalia recognized not to be a test at all. He
wrote that ``this would simply be an invitation to ad hoc
judgments that would render the binding effects of agency rules
unpredictable, destroy the whole stabilizing purposes of the
Chevron doctrine, and result in chaos.''
To impose this kind of judicial fiat seems especially odd
coming from Members of Congress who have repeatedly condemned
supposed judicial overreach, and who constantly point out that
the judiciary is unelected. It seems that the bill's supporters
are so intent on overturning our system for protecting the
public through regulation that they are willing to empower a
Federal judiciary that they have long denounced, even though
Congress has the constitutional authority to change regulatory
statutes, or to alter or reject individual regulations anytime
it wishes. But Congress does not do that because the public
will not support it.
First, I would like to place H.R. 4768 in a broader
legislative context. Since the start of the 112th Congress,
there has been a wave of legislation embodying conservative
political and corporate attacks on our modern system of Federal
regulation and law enforcement by the executive branch. H.R.
4768 is the latest bill to join that wave.
During the 112th and 113th Congresses, there were 553 House
votes by the majority to weaken environmental and health
safeguards. These attacks failed. Having failed despite
repeated attempts to weaken substantive organic laws they do
not support, anti-regulatory politicians have retreated to
broad attacks on the legal infrastructure backing Federal
regulations. These include, for example, the REINS Act in its
one-chamber legislative veto of regulations.
Now H.R. 4768 joins that list. Members have promoted H.R.
4768 by condemning a runaway administrative state that is out
of control. Press releases promoting the bill have blasted
numerous Obama administration regulations that the Members
happen not to support. It is clear that support for the bill is
motivated as much as by opposition to Federal safeguards, as it
is by the tug-of-war over separations of power between the
branches. Next, I would like to address some of the numerous
harmful consequences the bill will produce.
First, agencies will issue fewer regulations to carry out
Federal laws and protect Americans. Many more congressional
deadlines will be missed. I expect that is precisely what some
opposed to regulation hope will happen.
Second, agencies will resort to simply repeating ambiguous
and unclear statutory language verbatim in regulations.
Third, for the same reasons regulations will contain far
fewer details to assist State and local regulators with
implementation.
Fourth, uneven application of national laws would adversely
impact the certainty with which businesses could operate across
the country. Justice Scalia's regulatory chaos would ensure.
Agencies also would find it more difficult to adopt
deregulatory rules that would be considered reasonable under
today's Chevron test. In my experience, it is true that starkly
deregulatory rulemakings in prior Administrations have
foundered more often at the first step of Chevron. That would
continue to be the case were H.R. 4768 to become law.
One suspects, therefore, that political and corporate
opponents of regulation, and proponents of deregulation, have
made a calculation that the bill would have disproportionate
adverse impacts on regulations rather than deregulation. That
is almost certainly true, and is a central reason why the bill
should not become law. For all of these reasons, I urge Members
of the Subcommittee to oppose this legislation. Thank you.
[The prepared statement of Mr. Walke follows:]
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__________
Mr. Marino. Thank you. Professor Levin?
TESTIMONY OF RONALD M. LEVIN, WILLIAM R. ORTHWEIN DISTINGUISHED
PROFESSOR OF LAW, WASHINGTON UNIVERSITY IN ST. LOUIS
Mr. Levin. Chairman Marino, Ranking Member Johnson, and
Members of the Subcommittee, thank you for the privilege of
testifying at this hearing. My basic message today is to urge
the Subcommittee to be cautious about trying to legislate on
the challenging and subtle topic of the manner in which courts
should review agency interpretations of statutes and rules.
There has never been consensus about how to analyze these
issues, either before or after the Chevron decision.
For generations, courts have recognized that agencies have
some inherent advantages in interpreting their enabling
legislation. For example, agencies are more familiar with the
complexities in the field than a generalist court can be; they
have the responsibility to make the entire system work; and
they are accountable to the political process in a way that
life-tenured judges are not. At the same time, courts have
always balanced their deference with a commitment to uphold the
law if the agency's interpretation is untenable or
unreasonable.
Now, Chevron changed the way in which courts speak about
these problems, but it did not change the state of affairs very
much. The presumption that ambiguity constitutes a delegation
sounds odd, but we should never forget that it does not exist
in isolation. Courts have always found plenty of ways to work
within and around the two-step formula in order to exert
control over agencies, and the net results are not very
different from what you see in other contexts in which other
verbal formulas are used.
But still, courts and lawyers and judges have been
struggling with the complexities of this problem continuously
since well before the APA was adopted, and you are asking for
trouble if you assume that Congress can clear up these problems
by adding a handful of words to Section 706. Now, one of the
issues on the table today illustrates how difficult this is.
Should the amendment add only the words ``de novo'' to the APA,
or should it also codify the Sidmore test?
Well, if you do the former, you throw out two centuries of
tradition in which courts have found agency interpretations
important to their decision-making. That is what most people
would understand the words ``de novo'' to imply. On the other
hand, if you do the latter, you accomplish very little, because
the Chevron and Skidmore tests tend to lead to about the same
results, no matter what the wording of those tests seems to
say, and you also will send mixed messages that would cause a
great deal of confusion.
You know, until I read Professor Beermann's testimony, I
thought everybody in administrative law agreed that the law of
deference was disorderly and inconsistent prior to Chevron,
during the Sidmore era. So I seriously doubt that trying to
revive that regime by adding a few vague and conclusory phrases
to Section 706 would clear things up, and these days you cannot
use legislative history to cure these ambiguities.
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:]
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__________
Mr. Marino. Thank you. Professor White?
TESTIMONY OF ADAM J. WHITE, RESEARCH FELLOW, THE HOOVER
INSTITUTION, ADJUNCT PROFESSOR, THE ANTONIN SCALIA LAW SCHOOL
AT GEORGE MASON UNIVERSITY
Mr. White. Thank you. Chairman Marino, Ranking Member
Johnson, Chairman Goodlatte, and other Members of the
Subcommittee, thank you for inviting me today to testify on
this crucially important bill. In the last 3 decades, Chevron
deference's greatest offender was Justice Antonin Scalia. He
believed that Chevron struck a proper balance between judicial
decision-making under the rule of law, and regulatory policy-
making under constitutional principles of republican self-
government.
But in the last 5 years, Justice Scalia appeared to change
his mind, or at least, he began to reconsider all of this. He
hinted at this in opinions, and he is said to have expressed
significant doubt about Chevron in private conversations, and
one can surmise from Scalia's original pro-Chevron writings,
why he would have changed his mind.
Perhaps he concluded that lower courts were not enforcing
statutory limits rigorously enough. Perhaps he concluded that
modern administrative agencies simply did not respect statutory
limits anymore, and were leveraging Chevron to negate those
statutory limits. Or perhaps he looked around at his colleagues
at the Court and the lower courts, and seeing fewer or no
people--none of his colleagues willing to defend Chevron as
strongly as he had, he decided it was time for the law to move
in a direction that better reflects the realities of the modern
administrative state and the rule of law, which differ starkly
from three decades ago.
But whatever his reasons, Congress should follow his
example, not just in reforming Chevron, but in recalibrating
the law with an eye not just to courts, but also to agencies,
and to Congress itself. As Justice Scalia recognized, this area
of law affects the incentives motivating both Congress and the
agencies. The APA should be amended to improve those incentives
to promote better legislation and better administration.
For Scalia, Chevron's most important quality related not to
the courts or to the agencies, but to Congress. Specifically,
he believed that the law needed to set a stable, predictable
principle for Congress to have in mind as it drafted, enacted,
and amended Federal statutes.
Indeed, Chevron is from the beginning rooted in a
presumption about Congress, namely that Congress intended to
allocate interpretive authority largely to the agencies rather
than the courts. Whether that presumption was accurate or not,
now is a good time for Congress to engage the issue directly.
Whether it ultimately enacts the ``Separation of Powers
Restoration Act of 2016'' in its current form, or amends the
legislation to set other standards for judicial review,
Congress needs to take the lead. Perhaps the most pressing
constitutional debate of our time is that of the proper
relationship between Congress, the courts, and the
administrative state. It affects everything from financial and
environmental law to regulation of the Internet, and
increasingly to regulatory burdens on religious liberty.
Thank you for grappling with this issue, and thank you for
inviting me to testify today.
[The prepared statement of Mr. White follows:]
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__________
Mr. Marino. Thank you. The Chair now recognizes Chairman of
the full Committee, Chairman Goodlatte, for his 5 minutes of
questioning.
Mr. Goodlatte. Thank you very much, Mr. Chairman. Professor
Levin, I will start with you. I will pick up where you left
off. Congress should not meddle with this jockeying that is
going on between the judiciary and the regulatory bureaucracy
in terms of how the courts should decide what deference to give
them to how they interpret the regulations.
But, I mean, this is the very core of why Justice Scalia
was after the fact questioning the merits of the decision that
he was a part of, and that is why would Congress not want to
assert its legislative powers when what we are seeing more and
more--we do not need anecdotal evidence, we can just look at
the statistics of the rising number of regulations that are
written each year, and particularly the number of regulations
that come out based upon old laws, laws written 20, 30, 40
years ago where the bureaucracy comes back and says, ``You know
what?
We think that law is out of date now. We will just retool
our regulations,'' does not have to go back to Congress at all
for Congress to write a new law. All that has to happen is for
us to rewrite this regulation. The courts will look at it, and
the courts will say, ``Well, you know what, if that is what the
bureaucracy thinks that regulation means, then we should give
deference to that.'' So I very much disagree with that
assessment, and I would be happy to give you an opportunity to
respond.
Mr. Levin. Thank you for the chance to respond to that.
First, I do want to dissociate myself from Mr. White's claim
that Justice Scalia was rejecting Chevron. Whatever he said in
private conversations, in his public pronouncements in the City
of Arlington case in 2013, he strongly reaffirmed it,
challenged the dissent for taking it on. In his Michigan
decision shortly before his death, he----
Mr. Goodlatte. Well, let's get to the core of my point,
which is what is the role of the Congress if the regulatory
bureaucracy never has to come back here? When they see a need
for a change in the law, they just change it themselves.
Mr. Levin. Well, Mr. Chairman, as you may know, I have not
been a fan of the Committee's regulatory reform effort.
Mr. Goodlatte. I do not care whether you are a fan or not.
Reply to my question.
Mr. Levin. But what I am saying is Congress cannot
effectively deal with the scope of review in two or three
words, because it creates enormous complexities. It is just a
few words. There would be endless debates about what it means.
I am not saying it is beyond your province. I am just saying
you cannot effectively do it.
Mr. Goodlatte. But what do we do when a regulatory
bureaucracy says, ``You know what, we are going to reinterpret
this decades-old law and write new regulations because we think
those are more pertinent to the situation we are trying
today?''
Mr. Levin. I think you should rewrite the laws to say what
you want them to mean.
Mr. Goodlatte. Sure. But that is this Congress compared to
a Congress of 40 years ago. If we cannot get it back here, and
they 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]