Goodlatte Statment at Markup of 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 – isChevron 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 – is Chevron 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. Judicial deference under Chevron weakens the separation of powers, threatening liberty. It bleeds out of the judicial branch power to interpret the law, 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.” The “Separation of Powers Restoration Act of 2016” is timely, bold legislation directed straight at stopping our slide down that dangerous slope. In one fell swoop, it restores the separation of powers by legislatively overturning the Chevron doctrine and the related Auerdoctrine. This is reform that we must make reality for the good of the people. I thank Rep. Ratcliffe (R-Texas) for his introduction of this important legislation, I thank Subcommittee Chairman Marino (R-Pa.) for his work on the bill in the subcommittee, and I thank all of the bill’s cosponsors. I urge passage of the bill. Click here to learn more about today’s markup ###