House Judiciary Committee Chairman Bob Goodlatte (R-Va.)
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) | flickr, the commons

Separation of Powers Act seeks to check power of executive agencies

The House Judiciary Committee on Wednesday passed a bill to the House floor that would overturn two widely cited legal doctrines and end the practice of federal judges deferring to executive branch agencies to interpret their own rules and regulations.

Judiciary Committee Chairman Bob Goodlatte (R-Va.) told the committee that H.R. 4768, the "Separation of Powers Restoration Act of 2016," would legislatively overturn both "the Chevron doctrine, under which federal courts regularly defer to regulatory agencies’ self-serving interpretations of the statutes they administer," as well as the "Auer doctrine, under which courts defer to agencies’ interpretations of their own regulations."

The Chevron doctrine arose out of a 1984 Supreme Court case, Chevron v. National Resources Defense Council. In that case, the court said that judges must defer to a federal agency's interpretation of administrative rules when the rules were ambiguous, and the agency's interpretation of those rules was reasonable.

The court reasoned that the doctrine would put the burden for interpreting rules and regulations in the hands of a politically accountable branch of government, as opposed to leaving those questions to unelected judges.

The much older Auer deference stems from a 1945 Supreme Court decision, which held that agency interpretations of rules had “controlling weight unless it is plainly erroneous or inconsistent with the regulation.”

Conservatives have increasingly viewed both doctrines as unconstitutional delegations of power, an item that has gained greater importance with the death of Justice Antonin Scalia earlier this year. 

In a 2013 Supreme Court case challenging an Environmental Protection Agency's interpretation of the Clean Water Act, Scalia, writing in a partial dissent, questioned the legitimacy of the Auer deference.

"For decades, and for no good reason," Scalia wrote, "we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.”

Chief Justice John Roberts and Justice Clarence Thomas have also showed an inclination to move away from courts deferring to federal agencies, and toward a more active judicial role in interpreting regulations.

Conservatives are eager to see a new justice pick up where Scalia left off, but are hedging their bets with the new legislation.

In Wednesday's hearing, Goodlatte said federal courts' deference to the two legal doctrines "weakens the separation of powers, threatening liberty."

"It bleeds out of the judicial branch power to interpret the law," Goodlatte said, shifting that power instead to the executive branch, while tempting 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."

Representative John Conyers (D-Mich.), the committee's ranking member, disagreed, calling the legislation "harmful."

Conyers said the bill "would empower a judge to override the determinations of agency experts and to substitute his or her judgement, regardless of ... the judge's technical knowledge and understanding of the underlying subject matter."

He said the bill would make the federal rule-making process, which he described as "already severely ossified," even longer and more costly, with the potential to delay approval of regulations on food and health safety, and the environment.

Conyers said the bill would "skew" the rule making process to large corporations, who, he believes "would bury an agency under paperwork demands."

The bill's House sponsor, Rep. John Ratcliffe (R-Texas), said his aim is to rein-in "unelected bureaucrats" who, he said, "interpret the law to mean whatever they want."

Ratcliffe said the Chevron doctrine allows agencies to create regulations serving their political goals over congressional intent.

"It's the American people," he said, "who lose out by this circumvention of our Constitution."

Ratcliffe put some of the blame for the shift in power on Congress, saying it has delegated "too much" of its lawmaking authority to the executive branch.