Separation of Powers Bill Looks to Retake Control from Unelected Bureaucrats

(Quin Hillyer, Liberty Headlines) Eleven Republican senators took a stab at regulatory relief, or at least great confidence in regulatory fairness, with a bill introduced July 19 called the Separation of Powers Restoration Act (SOPRA).

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Mike Lee Photo by jbouie (CC)

Senators Hatch (UT), Grassley (IA), Lee (UT), Lankford (OK), Flake (AZ), Crapo (ID), Tillis (NC), Kennedy (LA), Cruz (TX), Cornyn (TX), and Sasse (NE) issued a joint release saying the bill will “restore accountability to the regulatory process. The bill ensures proper judicial review, empowering the courts—not agencies—to interpret all questions of law, including both statutes and regulations.”

The bill aims to correct a perceived imbalance caused by the Supreme Court’s doctrine known as “Chevron deference,” via which the courts tend to defer to federal agency regulations unless the regulations can be shown to egregiously contradict clear statutory language passed by Congress. The high court itself has sent a few signals in recent years that it thinks its “deference” has gone too far – but this bill aims to remove as much agency freelancing as possible by directing courts to review agency rulings more strictly.

“For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended,” said Grassley, who is chairman of the Judiciary Committee. “This has weakened our system of checks and balances and created a recipe for regulatory overreach.”

Utah’s Lee, a constitutional law specialist, added: “In practice Chevron deference has become a direct threat to the rule of law and the moral underpinnings of America’s constitutional order. The Separation of Powers Restoration Act of 2017 will restore that balance by bringing back traditional judicial review of administrative actions.”

The release also noted: “The federal bureaucracy imposes an estimated $1.88 trillion burden on the economy each year, according to the Competitive Enterprise Institute. That equals roughly $15,000 per household and 11.5 percent of the nation’s 2012 GDP.”

The House already has passed the same basic bill, under the same SOPRA name, on July 11. In advocating the bill in a June 21 column for The Hill newspaper, U.S. Rep. John Ratcliffe (R-TX) wrote that the Chevron doctrine (named after a case involving the oil company) had helped lead to unwarranted regulations on power plants that drive up consumer prices and even to the Obama administration’s decision to require transgender bathrooms for schools.

“If we allow this pattern to continue, our country will move even further away from the balance of powers that were intended to keep our government in sync with the will of the American people,” Ratcliffe wrote, while endorsing SOPRA.

The executive branch usually supports expansive Chevron space because the Chevron doctrine allows the White House’s political appointees to massage the interpretation of laws to fit the president’s preferences. But the Trump administration already is on a broad deregulatory mission led by a well-regarded attorney named Neomi Rao. SOPRA, then, is seen as more of a chance to guard against regulatory abuses by future administrations, rather than being catalyzed by fears of immediate new over-regulation.

Leftists, of course, want bureaucrats to wield as much power as possible. Hence there has been at least a little backlash to SOPRA from liberal groups. Paul Verkuil of the progressive Center for American Progress wrote in June for The Hill, for example, that Chevron deference is good because it leaves decisions in the hands of agencies “staffed by subject matter experts who are more equipped to make these technical policy decisions.”

Ah, yes: rule by bureaucratically designated “experts,” who of course are needed to “fill in the gaps” left by vaguely written laws.

Or to exploit and widen the gaps, as the case may be, so as to change the very meaning of the original law.

To guard against that problem, Congress is answering with SOPRA – “an important step in the right direction, both symbolically and substantively,” wrote Pascal-Emmanuel Gobry of the Ethics and Public Policy Center at the beginning of the year.

Analysts say they expect the bill to sail through the Senate, and for President Trump to sign it.