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Commentary By Jared Meyer

How To Fight The Fourth Branch Of Government

Economics Regulatory Policy

American children are taught that the U.S. government has three separate but equal branches. However, this curriculum needs to be updated to reflect today’s realities.

Now, executive branch agencies are effectively given legislative power. And, due to what is known as Chevron deference, they can operate outside of proper judicial scrutiny. Today’s administrative state is truly an unaccountable fourth branch of government, with control over how regulations are issued, enforced, and litigated.

The Separation of Powers Restoration Act, sponsored by Representative John Ratcliffe (R-TX) and 113 cosponsors, would empower courts to hold executive agencies fully accountable, consistent with the Constitution. The bill was introduced in the House on March 16 and the Senate version, introduced on March 17, is sponsored by Finance Committee chairman Orrin Hatch (R-UT) and 12 cosponsors.

In what follows, Representative Ratcliffe and House Judiciary Committee chairman Bob Goodlatte (R-VA) explain why the judicial branch has given far too much deference to executive agencies, and how this abdication can be reversed.

Jared Meyer: I’ll start with an easy question that is right to the point. Why is the growth in executive agencies’ powers a problem?

Chairman Goodlatte: Our Framers created a system of government with co-equal branches, in which each would check the power of another. Today, we have a system that is imbalanced, with the executive branch grabbing powers away from the judiciary and legislative branches. James Madison warned of the consequences of one branch grabbing power from the others in Federalist No. 47, and today his fears are coming to fruition. When you have one branch grabbing power away from the others, it creates an imbalance that only opens the door for abuse.

Jared Meyer: All of the Separation of Powers Restoration Act’s sponsors in both the House and the Senate are Republicans. Why do you think this issue is split along party lines?

Rep. Ratcliffe: In the years following the Chevron decision, court deference to agencies has proven politically expedient for Republican presidents and Democratic presidents alike. With a Democratic president in office, Democrats in Congress have made it clear that they’re willing to continue allowing the neglect of the boundaries set forth in the Constitution to advance their agenda.

Chairman Goodlatte: But this is not and should not be a partisan issue. It is a balance of power issue among the branches of government. It is difficult for members of the same party as the president to take a stand against executive overreach, but the reforms in SOPRA will benefit the American people by restoring a proper balance of powers and restoring strength to the laws Congress passes.

Jared Meyer: Since this bill requires a de novo (or new) judicial review of agency actions, would it not also affect other forms of deference besides Chevron, such as Auer deference and Skidmore deference?

Rep. Ratcliffe: While Chevron is the more often discussed deference, Auer is similarly egregious. Auer deference expands upon Chevron to require the court to defer to agencies’ interpretations of their own regulations. The Separation of Powers Restoration Act reverses both of these forms of deference by requiring a de novo standard of review. Overturning Chevron and Auer is vital to reestablishing the proper role of the court as interpreter of the meaning of the law.

Chairman Goodlatte: So-called Skidmore deference is a bit of a misnomer. Many argue with reason that the Skidmore decision didn’t authorize judges to defer to agencies. It just stated the common-sense notion that judges should pay attention to factors that give an agency’s views “power to persuade, if lacking power to control.” Agencies still have the opportunity—indeed, the responsibility—to offer the courts and the people views with the power to persuade. But under the bill, judges clearly need not and must not find themselves controlled by the agency’s interpretation.

Jared Meyer: This is clearly a problem that is increasingly recognized by the Supreme Court. In 2013, Chief Justice Roberts wrote, “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.” 

Even though Justice Scalia was once a strong advocate of administrative deference, over his last half decade on the bench he repeatedly called for the Supreme Court to overrule his own unanimous opinion in favor of deference. And Justice Thomas and Justice Alito also support a greater role for the judiciary acting as an impartial judge in cases against executive agencies. So why is it necessary to push a bill through Congress when the conservative wing of the court is on board with your argument?

Chairman Goodlatte: While conservative justices on the Supreme Court are realizing just how much power the federal judiciary has ceded to the bureaucrats, it still takes five justices to overturn Chevron and Auer. It may also take years for cases to come before the Supreme Court that could open the door for full reversals of the Chevron and Auer precedents. Our legislation would address the problem now, and guide the federal judiciary back to its proper place within our system of checks and balances.

Rep. Ratcliffe: Additionally, it is entirely appropriate for Congress to amend the Administrative Procedure Act—a law passed by Congress in the first place—to clarify its intent with respect to how regulatory action should be assessed by courts.

Jared Meyer: Congress is already able to overrule actions by executive agencies through the Congressional Review Act of 1996. But this tool was only successfully used once in 2001 to stop an Occupational Safety and Health Administration rule on workplace ergonomics. Even though starting the review process is relatively easy, during the 113th Congress only two Congressional Review Act resolutions were introduced in the House and none were introduced in the Senate. This means the Congressional Review Act was used on less than .03% of the 7,000 or so rules issued over that time. Why has the Congressional Review Act failed to constrain the growth of the regulatory state?

Rep. Ratcliffe: The Congressional Review Act is an important agency corrector, as it allows Congress to push through legislation that tells an agency it’s not accurately administering the law. But frankly, Congress shouldn’t have to come in and use the Congressional Review Act every time a federal agency decides to interpret an “ambiguous statute” in a way that violates the meaning of the law. The Constitution gave this responsibility to the courts, and that’s where the power needs to be redirected. That’s why we need to overturn Chevron.

Chairman Goodlatte: I agree. While the Congressional Review Act is a useful tool to put the regulators on notice, overruling actions by executive agencies still requires the approval of both houses of Congress, as well as a signature by the president. Given that we have seen so few instances in which the president and both houses of Congress were all aligned in opposition to regulations coming out of an administration, you can see why the window for an overrule of executive action has been so small.

Jared Meyer: Congressional action in order to hold executive agencies accountable to the law is clearly necessary. Do you see any other areas in the regulatory process that are ripe for reform?

Chairman Goodlatte: We need to enact the REINS Act, which would reform the Congressional Review Act so that new major regulations cannot go into effect until Congress approves them. Instead of costly regulations simply going on the books unless Congress specifically overrules them, the REINS Act would make sure that regulators follow the intent of the legislative branch.

But just as important is enactment of the Regulatory Accountability Act, my bill to reform the Administrative Procedure Act. The APA is often termed the “constitution” of administrative law. As currently written, the APA is a general guidepost and provides few strong constraints on agency overreach. The Regulatory Accountability Act contains a strong but practical rewrite of the APA’s core provisions on how agencies develop and issue new regulations. Once it becomes law, we will see far fewer attempts by agencies to overreach and much smarter, cost-effective rules when regulation is actually needed. And there are other reforms we need and have proposed or will propose—including the institution of a regulatory budget to keep the costs of new regulations down.

Rep. Ratcliffe: While overturning Chevron specifically addresses powers siphoned away from the judicial branch to regulatory agencies, I’m also working to address the powers that have been usurped from Congress through the Article I Project, led by Senator Mike Lee (R-UT). One other focus I hope to tackle specifically is “Midnight Regulations,” which administrations are notorious for ramming through toward the end of their term. For evidence of this, just look at what the Obama administration has pushed through in the last few months.

Jared Meyer: It is clear that executive agencies have no intention of slowing their decades-long power grab. Even more troubling, the judiciary does not show enough interest in forcing them to do so. People of all political persuasions should realize that Congress needs to restore its constitutional authority over the legislative process. If not, it is time for Schoolhouse Rock! to get an update.

This article originally appeared on Forbes.

Jared Meyer is a fellow at the Manhattan Institute for Policy Research. Follow him on Twitter here.

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