Date: 2016-07-11
Speaker: JACKSON LEE (democrat)
Chamber: H

I would be willing to look at discussing this further by looking at what are the holes. where do we think we are not being effective on behalf of the American people. That is reasonable legislation and legislative discourse. if you will. But I cant look at something that tells me that I have got to take something involving the Childrens Health Insurance Program or the 1191 waiver that deals with Medicaid. and I have got to untangle it. go into a court because someone challenged it. and I have got people waiting in line for healthcare relief and hospitals that are looking for payment on uncompensated care. and I have got a court that has to now ramp up. And individual courts dont have the vastness of research that agencies have to be experts on health care and to be experts on a variety of issues that are so very important to us. I would hope that we can send this legislation back. I hope that we could lookwhat are we trying to fix? I think the three branches of government are very clear. We legislate. the executive has its powers. and there are agencies. But the citizens have a right to seek a review of a regulatory structure or a regulation. They have judicial review. Section 702 of the APA. in its current form. subjects agency rulemaking to judicial review for any person suffering legal wrong because of agency action. or adversely affected or aggrieved by agency action within the meaning of a relevant statute. Courts in particular retain an important role in determining whether an agency is permissible. arbitrary. or capricious. Mr. Chairman. that is within the context of what this Administrative Procedure Act does. It has been effective for 70 years plus. And what we are doing iswe are not detangling. We are tangling. and we are blocking the good government work that these agencies do to help the American people be safe in water. in the environment. in public lands. in security. I ask my colleagues. lets go back to the drawing board before we move forward on this legislation. Mr. Chair. I stand in opposition to H.R. 4768. the Separation of Powers Restoration Act of 2016. a bill to address purported constitutional and statutory deficiencies in the judicial review of agency rulemaking. I am opposed to H.R. 4768 because this bill is unfortunately deeply flawed and harmful to our nations fundamental and wellestablished federal rulemaking process. Specifically. H.R. 4768 would abruptly shift the scope and authority of judicial review of agency actions away from federal agencies by amending Section 706 of the Administrative Procedures Act (APA) to "require that courts decide all relevant questions of law. including all questions of interpretation of constitutional. statutory. and regulatory provisions. on a de novo basis without deference to the agency that promulgated the final rule". Effectively. H.R. 4768 would abolish judicial deference to agencies statutory interpretations in federal rulemaking and create harmful and costly burdens to the administrative process. Enacted in 1946. the APA establishes the minimum rulemaking and formal adjudication requirements for all administrative agencies. And for the past 70 years the APA has served and guided administrative agencies and the affected public in a manner that is flexible enough to accommodate the variety of agencies operating under it inclusive of changes through time. In addition to the APA. numerous other procedural and analytical requirements have been imposed on the rulemaking process by Congress and various presidents. Generally. agencies development of new rules is an extensive process that is fully vetted with appropriate avenues for judicial relief where necessary. Namely. Section 702 of the APA in its current form subjects agency rulemaking to judicial review for "any person suffering legal wrong because of agency action. or adversely affected or aggrieved by agency action within the meaning of a relevant statute." Courts in particular retain an important role in determining whether an agency action is permissible. arbitrary. or capricious. And while. the APA requires reviewing courts to decide all relevant questions of law. interpret statutes. and determine the meaning of agency action. it is wellestablished that courts "must give substantial deference to an agencys interpretation of its own regulations." Indeed. the Supreme Court has routinely observed that the scope of judicial review is narrow and a court is not to substitute its judgment for that of the agency. Rather. it is wellsettled that courts must give considerable weight to an agencys construction of a statute it administers. Such deference was established as bedrock administrative law in the 1984 Supreme Court case Chevron v. Natural Resources Defense Council. now known as the Chevron deference. Chevron deference has been upheld by hundreds of federal courts since and has been endorsed by both conservative and liberal Supreme Court justices and federal court judges. H.R. 4768 would override the Chevron doctrine enabling courts to ignore administrative records and expertise and to substitute their own inexpert views and limited information. Such a measure would radically transform the judicial review practice and make the rulemaking process more costly and timeconsuming by forcing agencies to adopt more detailed factual records and explanations. effectively imposing more procedural requirements on agency rulemaking. This cumulative burden would have the effect of further ossifying the rulemaking process or dissuading agencies from undertaking rulemakings altogether. H.R. 4768 marks an unprecedented and dangerous move away from traditional judicial deference towards a system of that would enhance powers for corporate lobbyists and weaken protections for consumers and working families. Congressional consideration for an enhanced judicial review standard or a legislative override of judicial deference is not one we are unfamiliar withbut it is a matter we have long ago rejected along with our nations leading administrative law scholars and experts. H.R. 4768 is an unnecessary and misguided bill that would burden the rulemaking process and not simplify it. For these reasons. I am opposed to H.R.