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H.R. 4768, the “Separation of Powers Restoration Act of 2016,” would eliminate judicial deference to agencies and require federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis.

As a result, the bill would empower a judge to override the determinations of agency experts and to substitute his or her judgment, regardless of the judge’s technical knowledge and understanding of the underlying subject matter.

This legislation is harmful for several reasons. To begin with, H.R. 4768 would make the federal rulemaking process even more time-consuming and costly. 

This process is already severely ossified.  As the Nation’s leading administrative law scholars observed, agency rulemaking is hampered by many burdens imposed by both the courts and Congress. 

By eliminating any deference to agencies, H.R. 4768 would exacerbate this problem by forcing agencies to adopt even more detailed factual records and explanations, which would further delay the finalization of critical life-saving regulations. 

We are talking about regulations that protect the quality of the air we breathe, the water we drink, and the food we consume. 

 Slowing down the rulemaking process means that rules intended to protect the health and safety of American citizens will take longer to promulgate and become effective, thereby putting us all at risk.

And, H.R. 4768 could also have the perverse effect of undermining agency accountability and transparency by encouraging clandestine rulemaking through civil enforcement actions, for instance.  

I am also concerned that H.R. 4768 will deter public participation in the rulemaking process. As the nonpartisan Congressional Research Service has observed, “[p]ublic participation in agency decision making is highly sensitive to cost and delay.” 

By imposing greater scrutiny of agency rulemaking, the bill will skew the fact-finding process in favor of those with significant resources. Large corporate interests – devoted only to maximizing profits for the benefit of their shareholders – already have the edge with their vast resources to weaken regulatory standards by burying an agency with paperwork demands and litigation.

Rather than giving more opportunities for corporate interests to prevail, we should be evaluating ways to ensure that that the voices of the public have a greater role in the rulemaking process. 

Finally, H.R. 4768 would encourage judicial activism.

By eliminating judicial deference, the bill would effectively empower the courts to make public policy from the bench even though they lack the specialized expertise that agencies possess.

Although the Supreme Court has had numerous opportunities to expand judicial review of rulemaking, the Court has rejected this approach in recognition of the fact that generalist courts simply lack the subject-matter expertise of agencies, are politically unaccountable, and should not engage in making substantive determinations from the bench.

It is somewhat ironic that those who have long decried “judicial activism,” would now support facilitating a greater role for the judiciary in agency rulemaking.

Given these concerns and others presented by the bill, I accordingly must oppose H.R. 4768.