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I rise in strong opposition to H.R. 4768, the “Separation of Powers Restoration Act of 2016.”

By eliminating judicial deference to agency determinations, the bill would make the already ossified rulemaking process even more time-consuming and costly, threatening the ability of federal regulatory agencies to protect public health and safety. 

This is true for several reasons.   Ironically, for a bill that purports to “restore” separation of powers, H.R. 4768 actually raises separation of power concerns.

Congress makes the laws and agencies implement them, while the courts are supposed to interpret the law. 

The Supreme Court has long recognized that Congress may constitutionally delegate its authority to agencies through statutes to promulgate rules to implement the laws it passes, with democratic accountability stemming from the fact that Congress can always rescind or narrow the scope of that delegation. 

We specifically entrust these agencies, not the courts, with broad policymaking authority.

Yet, by removing constraints on judicial review of agency action, H.R. 4768 would empower generalist and unelected courts to nullify agency action solely on policy grounds, substituting the administrative record with their own policy preferences.

Such authority would go beyond the traditional bounds of the judicial role, as the federal courts themselves have thus far recognized through their deference to agencies.

H.R. 4768 would upend the careful and longstanding balance among the three branches of government, all in the name of serving anti-regulatory corporate interests.

In addition, 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 and democratic accountability that agencies possess, through delegated authority from and oversight by the American people’s elected representatives.

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.

Finally, H.R. 4768 would result in regulatory paralysis and thereby undermine public health and safety. 

Regulations are the result of years—very often many years—of careful deliberation and expert analysis.  Typically, after an agency first proposes a rulemaking, it must solicit public comment. 

The agency then analyzes this input and, after further deliberation, promulgates a final rule. 

Additionally, for certain rules, agencies must undergo further procedures, such as conducting a cost-benefit analysis and a separate analysis of the rule’s potential impact on small businesses. 

This is a time-consuming process that many believe is already too inflexible.

According to a new report issued just last month by Pubic Citizen, the time it takes for agencies to issue regulations has grown to unprecedented lengths.

So far this year, for example, economically significant regulations have taken an average of 3.8 years to complete, which is nearly an entire presidential term. 

In recognition of the fact that agencies spend years formulating rules and have the specialized substantive expertise to do so, the courts have long applied the rule of judicial deference. 

Essentially, this means that the court, in reviewing a rulemaking, will not substitute its policy preferences for that of the agency. 

Yet, H.R. 4768 would overturn this longstanding practice and, in its stead, require federal courts to review all agency rulemakings and interpretations of statutes on a de novo basis.

In effect, the bill would empower a judge to ignore 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.

By eliminating judicial deference, the bill will force agencies to adopt even more detailed factual records and explanations, which would further delay the finalization of critical life-saving regulations. 

And, it will further encourage well-funded corporate interests to engage in dilatory litigation challenging agency action in order to derail regulations. 

As it is, large corporate interests—devoted only to maximizing profits—already have an unfair advantage in their ability to weaken regulatory standards by burying an agency with paperwork demands and litigation.

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

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.

Given these concerns and others presented by the bill, I accordingly must oppose H.R. 4768 and I urge my colleagues to vote against this seriously flawed measure.

I reserve the balance of my time.