The Separation of Powers Restoration Act

OUR POSITION: CSS opposes the bill and urges members of Congress to vote against it.

Capitol hill

The misleadingly named Separation of Powers Restoration Act does the opposite of its title: It empowers the courts over the legislative and executive branches. The bill seeks to end judicial deference to agency expertise and thwart crucial public protections.

When a federal regulation is challenged in court as arbitrary, capricious or in violation of a statute, the court begins by trying to discern Congress’ intent in the authorizing statute. But sometimes the normal tools of statutory construction fail to answer the question at hand. The court may determine that the statutory meaning is ambiguous or that Congress gave the agency discretion. In such cases, the court will defer to the agency’s interpretation of the statute, in recognition of its subject matter expertise and its role as one of the two policymaking branches of government.

This principle of judicial deference dates to not long after our nation’s founding. But it was established as a bedrock principle of administrative law by the U.S. Supreme Court in the 1984 case, Chevron v. Natural Resources Defense Council. Known as Chevron deference, this principle has been applied in hundreds of federal court cases and has been endorsed with little controversy by countless conservative, moderate and liberal Supreme Court justices and federal court judges.

Eliminating Chevron deference would encourage additional lawsuits, as well-funded corporate interests would invite potentially sympathetic judges to substitute their own policy preferences in lieu of agencies’ reasoned decision-making. The results would be a rulemaking process that is further rigged in favor of powerful corporations, greater consolidation of power in the hands of judges who are less accountable to the public, and further delays in a regulatory process that already is slow to protect the public.

 


 

CSS Resources

Regulatory Accountability Act Is a Frankenstein’s Monster Built to Block and Delay Public Protections
Press Release: January 5, 2017

Overturning Judicial Deference to Agencies Would Turn Judges Into Policymakers
Press Release: July 11, 2016

CSS Urges House to Oppose the Separation of Powers Restoration Act (H.R. 4768)
Letter to Members: July 11, 2016

CSS Urges House Judiciary Committee to Oppose the Separation of Powers Restoration Act (H.R. 4768)
Letter to Members: June 8, 2016

 


 

Resources From CSS Allies

Conservative Heads Spin as House GOP Backs Judicial Activism
Natural Resources Defense Council: July 13, 2016

Letter of Opposition to the Separation of Powers Restoration Act
American Lung Association: July 7, 2016

Groups Oppose the Separation of Powers Restoration Act
Public Citizen et. al.: July 5, 2016

Statement of Administration Policy Against the Separation of Powers Restoration Act
The White House: June 22, 2016

House Launches Frenzy of Attacks on CFPB, Public Protections
U.S. PIRG: June 22, 2016

Administrative Law Academics Air Concerns About the Separation of Powers Restoration Act
Center for Progressive Reform: June 8, 2016

Separation of Powers Restoration Act Undermines Essential Judicial Procedures
Public Knowledge: June 7, 2016

The Separation of Powers Restoration Act Should Not Become Law
Natural Resources Defense Council: May 17, 2016

Prof. Levin: Proposed Separation of Powers Restoration Act Is Misconceived
Washington University Law: May 17, 2016

 


 

Press Coverage

Gorsuch Nomination Puts Spotlight on Agency Powers
The New York Times: February 6, 2017

The Quiet GOP Campaign Campaign Against Government Regulation
The Atlantic: January 26, 2017

Ryan Backs Bill to ‘Curb Agency Overreach’
The Hill: July 11, 2016

Conservatives Will Probably Lose the Legal Fight for Small Government. Here’s Why.
The Washington Post: July 8, 2016

The Supreme Court’s Post-Scalia Term
The New York Times: June 23, 2016

Properly Viewed, Chevron Honors the Separation of Powers
The Hill: June 23, 2016

Should Courts Defer to Regulators? Dallas-Area Rep’s Bill Would Shift Landscape on Health, Safety Rules
The Dallas Morning News: June 23, 2016

Scholars Concerned About Chevron Deference ‘Retreat’
Bloomberg BNA: June 9, 2016

The Misguided Manifesto of Regulatory Reform
RegBlog: May 2, 2016