On the first day of the 115th Congress, Republicans promptly introduced legislation to explicitly weaken the powers of federal agencies in promulgating regulations. For example, in the House of Representatives, the Regulatory Accountability Act (H.R. 5) brings together six separate reform bills that have already passed the House in the previous Congress. H.R. 5 is being sponsored by Rep. Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee. One of those bills—the Separation of Powers Restoration Act—would eliminate the so-called Chevron Deference. This doctrine derives from a 1984 Supreme Court opinion and has been an extraordinarily powerful judicial weapon wielded by federal agencies forced to defend their rules in court.
Stop overreaching rules
The Regulatory Accountability Act is a major step to reverse the negative effects regulations are having on our economy,” said Goodlatte in a statement. “The bill promotes making the regulatory process more transparent for the American people; increases the power of the people’s elected representatives and the courts to stop overreaching new rulemaking; and lets the public have the full say they deserve in the rulemaking process. The barriers regulations have built halt economic growth, but those burdens can be lifted, and Congress has the opportunity to make our economy work for hardworking Americans again.”
The Chevron Deference
The Chevron Deference emerged from a challenge environmental groups unsuccessfully mounted against an EPA Clean Air Act rule. In the decades since that ruling, no other federal agency has benefited more from the doctrine. Simply stated, the Supreme Court said that when a statute does not clearly state a requirement, courts should defer to the judgment of the implementing agency, provided a reasonable explanation for the requirement is provided. The court specifically stated:
“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
De novo review
The Separation of Powers Restoration Act, which passed the House in 2016, would amend the Administrative Procedure Act by requiring courts to conduct a de novo—or new—review of all relevant questions of law, rather than leaving such interpretation to federal agencies.
“This important legislation ends the needless deference to unelected bureaucrats established by the Supreme Court under the Chevron ruling and reasserts basic constitutional rights to separated powers and judicial review,” commented Americans for Tax Reform when the bill passed.
H.R. 5 contains five additional actions proposed in separate bills:
- Require agencies to choose the lowest-cost rulemaking alternative that meets statutory objectives and require greater opportunity for public input and vetting of critical information—especially for major and billion-dollar rules. (Regulatory Accountability Act)
- Require agencies to account for the direct, indirect, and cumulative impacts of new regulations on small businesses—and find flexible ways to reduce them. (Small Business Regulatory Flexibility Improvements Act)
- Prohibit new billion-dollar rules from taking effect until courts can resolve timely filed litigation challenging their promulgation. (REVIEW Act)
- Force agencies to publish, online, timely information about regulations in development and their expected nature, costs, and timing. (ALERT Act)
- Publish plain-language, online summaries of new proposed rules so the public can understand what agencies actually propose to do. (Providing Accountability Through Transparency Act)