“YES” on Separation of Powers Restoration Act (H.R. 4768)

This week, the House is expected to vote on H.R. 4768, the Separation of Powers Restoration Act (SOPRA), sponsored by Rep. John Ratcliffe (R-TX) 95%.  

As one of the legislative proposals in the Constitution Task Force, SOPRA would end decades of excessive judicial deference to executive branch agencies when interpreting statutes, a practice known as Chevron Deference. Established by a 1984 Supreme Court decision, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., Chevron deference has created a dangerous precedence of having the court defer to the agency when reviewing interpretation of an ambiguous law, as long as the agency’s interpretation is not “unreasonable.”  But by doing so, the courts have made the executive branch stronger at the expense of Congress.

As Elizabeth Slattery, Senior Legal Fellow at The Heritage Foundation, has written in her article Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference:

“The Supreme Court should reconsider when and how much deference is owed to administrative agencies, given the inconsistent application of Chevron deference as well as broader concerns about the judicial branch’s duty to act as a check on abuses by the political branches in appropriate cases or controversies. Courts should exercise independent judgment rather than simply accept an agency’s “reasonable” interpretation of the law. 

“… As Justice Scalia has noted, ‘Too many important decisions of the Federal Government are made nowadays by unelected agency officials … rather than by the people’s representatives in Congress.’…

“….In a recent case, Justice Samuel Alito seemed eager to throw out another deference doctrine, highlighting the ‘aggrandizement of the power of administrative agencies.” In the same case, Justice Clarence Thomas explained, “This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent.’.”

 Passing SOPRA into law will instruct the courts to interpret the laws in just the ways suggested by Justices Scalia, Alito, and Thomas above.  The bill amends the Administrative Procedure Act, requiring courts to conduct a “de novo”, or new, review of all relevant questions of law, including the interpretation of constitutional and statutory provisions and the provisions of agency rules. This will essentially overturn the 1984 decision leading to the creation of Chevron deference, requiring courts to interpret the law rather than defer to an agency’s interpretation and thereby restoring balance in the court’s decisions between executive authority and legislative intent.

 As Congress works to reclaim its status as a co-equal branch of government, and the only branch with the power to make laws, reining in the ever-increasing administrative state and slowing the proliferation of unlawful regulations is a critical first step.  Executive branch agencies are not impartial actors – and they are aware of the leeway afforded to them by the courts under Chevron. One can reasonably wonder if the Obama Administration would still have issued regulations like the EPA’s Clean Power Plan, or guidance like the Department of Justice and Department of Education’s joint guidance on the President’s radical transgender bathroom agenda, if they didn’t have Chevron deference to hide behind in court.

 When introducing the bill, Rep. Ratcliffe said:

“For too long, federal regulators have been allowed to run free and loose in their interpretation of the laws that Congress writes, resulting in a dangerous and unconstitutional culmination of power. The government works for the people – not the other way around – and I’m proud to help lead this effort to ensure the separation of powers is respected as our Founding Fathers intended. 

“We’ve already seen unelected bureaucrats try to tell people what kind of light bulbs they can buy, attempt to regulate puddles in people’s backyards and fail immensely at taking over Americans’ health care. We must ensure the integrity of our three co-equal branches of government, and this legislation will stop administrative agencies from taking powers the Constitution does not give them.” 

One of the greatest threats to personal liberty and conservative policy is an unchecked Executive branch full of unelected bureaucrats making laws under the guise of regulation.  Rep. Ratcliffe’s legislation will help ensure that Courts interpret the law as written by the only lawmaking body in our government: Congress.

Heritage Action supports H.R. 4768 and will include it as a key vote on our legislative scorecard.