Chairman Goodlatte Statement at Hearing on H.R. 4768, the “Separation of Powers Restoration Act of 2016”

Chairman Goodlatte: The modern federal administrative state is an institution unforeseen by the Framers of our Constitution and rapidly mushrooming out of control. The “Separation of Powers Restoration Act of 2016” takes square aim at one of the biggest roots of this problem – the Chevron doctrine, under which federal courts regularly defer to regulatory agencies’ self-serving interpretations of the statutes they administer.  Similarly, the bill takes on the related Auer doctrine, under which courts defer to agencies’ interpretations of their own regulations. In perhaps the most famous of the Supreme Court’s early decisions, Marbury v. Madison, Chief Justice Marshall declared for a unanimous court that, “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” Since the Chevron doctrine allows judges to evade interpreting the law, and instead to defer to agencies’ interpretations, one must ask – is Chevron faithful to Marbury and the separation of powers? In the “Administrative Procedure Act of 1946”, often called the “constitution” of administrative law, Congress provided for judicial review of agency action in terms that were plain and direct.  It stated that “the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions[.]” That standard is consistent with Marbury and the separation of powers. But since Chevron allows judges to escape interpreting statutory provisions themselves, one must ask – isChevron unfaithful, not only to Marbury and the separation of powers, but also to the “Administrative Procedure Act”? These are not just academic questions. They are fundamental questions that go to the heart of how our government works and whether the American people can still control it. The genius of the Constitution was that, by separating the legislative, executive and judicial powers into three distinct branches, the ambitions of each branch would check and balance the ambitions of the others. As long as the separation is kept strong, that system of checks and balances preserves liberty – as the Framers intended. But judicial deference under Chevron weakens the separation of powers, threatening liberty.  It bleeds out of the Judicial Branch power to say what the law is, transfusing that power into the Executive Branch. And, it tempts 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. This leads us down the dangerous slope James Madison warned against in Federalist 47 – “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands,” that “may justly be pronounced the very definition of tyranny.” This is what Americans across our Nation feel in their bones to be dangerous when they fear a federal regulatory bureaucracy growing beyond limits, spinning out of control. They fear a government emboldened to burst our system of checks and balances, trespass without limit on their liberty, and threaten their way of life – all at the whim of “swarms of administrators” in a far-off capital. They fear an all-reaching, unaccountable bureaucracy that threatens our system of self-government by and with the consent of the people. The “Separation of Powers Restoration Act of 2016” is timely, bold legislation directed straight at this problem.  In one fell swoop, it restores the separation of powers by legislatively overturning the Chevron doctrine and the related Auer doctrine. This is reform that we must make reality for the good of the people. I look forward to the testimony of our witnesses as we consider this crucial bill. I am particularly interested in hearing their views on whether more terms should be added to the bill to further guide the Judiciary on the appropriate interpretation of statutes and regulations as it reassumes fully “the province and duty of the Judicial Department to say what the law is.” I yield back the balance of my time. Click here to learn more about today’s hearing. ###