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Sen. Thom Tillis

WASHINGTON, D.C. – This week, Senator Thom Tillis (R-NC) co-introduced the Separation of Powers Restoration Act (SOPRA), legislation that would restore accountability to the regulatory process and ensure proper judicial review, empowering the courts—not agencies—to interpret all questions of law, including both statutes and regulations.

The Senate bill was also introduced by Senators Orrin Hatch (R-UT), Chuck Grassley (R-IA), Mike Lee (R-UT), James Lankford (R-OK), Jeff Flake (R-AZ), Mike Crapo (R-ID), Kennedy (R-LA), Ted Cruz (R-TX), John Cornyn (R-TX), and Ben Sasse (R-NE).

“One of the biggest challenges facing our nation is a large and cumbersome regulatory environment that negatively affects hardworking American families and business, and impedes our nation’s economic growth and potential,” Senator Tillis said. “I am proud to join this legislation that takes the necessary steps to hold unelected bureaucrats and regulators accountable by restoring the proper separation of powers.”

“Our Constitution clearly sets up three separate branches of government that have designated powers to check one another,” Senator Hatch said. “This important balance of power is essential to our country’s freedom. Administrative agencies, however, have continuously eroded that balance of power by subjecting the courts to judicial deference, allowing the federal bureaucracy to impose expensive and often unnecessary rules that strain family budgets and impede our ability to create jobs. Our bill fortifies regulatory accountability by restoring the constitutional responsibility of the courts to check and restrain federal regulators.”

“For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended,” Chairman Grassley said. “This has weakened our system of checks and balances and created a recipe for regulatory overreach.  The Constitution’s separation of powers makes clear that it is the responsibility of Congress, as the People’s representative, to make the law.  And it’s the job of the courts – not the bureaucracy – to interpret the law.  This bill helps to reassert those clear lines between the branches.  By doing so, it makes the government more accountable to the People and takes a strong step toward reining in the regulators.”

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

“The Constitution gives each branch of government unique and exclusive power: Congress writes the law; the executive enforces the law; and the courts interpret the law,” Senator Flake said. “However, the Chevron doctrine increasingly allows the executive branch to do all three. That’s not what the Framers envisioned and this bill is a good first step to bringing government in line with the structure of our Constitution.”

“The introduction of the Restoration of Powers Separation Act is a crucial first step in restoring the proper role of judicial review,” Senator Crapo said. “This bill will stop future abuses of power by making it clear that courts, not administrative agencies, have the rightful authority to interpret questions of law.”

“It’s no secret that Chevron deference has gotten a little out of hand,” Senator Kennedy said. “It’s vital to our separation of powers that we restore the balance – and this bill does just that. I’m proud to join my colleagues in bringing about this needed reform”

“Our Constitution clearly defines the lawful checks and balances among the three branches of government, yet for far too long executive agencies have operated as if they can simply dictate the law,” Senator Cruz said. “That is unacceptable. It is past time for Congress to assert its appropriate place as a coequal branch of government. I am glad to again join my colleagues in both Houses in this effort to remedy the damage done by the previous administration’s lawlessness, and reverse the dangerous trend of enabling bureaucracy at the expense of Congress and the courts.”

“When you write laws, you’re hired and fired by the people in the voting booth – that’s Self-Government 101,” Senator Sasse said. “Sadly, that’s not what happens when Congress punts to unelected regulators and the courts defer to unaccountable bureaucrats. Our straightforward bill reaffirms what our kids learn in high school civics: Congress writes the laws, judges apply them, and the executive branch enforces them.”

Background:

For many years, the nation has witnessed a steady accumulation of power within administrative agencies. As a practical matter, agencies’ power to regulate and to adjudicate has supplanted legislation and judicial review as the primary means by which governance takes place at the federal level. This trend only accelerated under President Obama, whose major legislative actions—such as Obamacare and Dodd-Frank—delegated massive amounts of power to the federal bureaucracy.

The central precept undergirding the Constitution is the notion that liberty depends on the separation of powers and the preservation of check and balances. As James Madison put it in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” By definition, the accumulation of power within administrative agencies represents a shift away from the constitutional separation of powers and the liberty it protects. Insulated from the checks and balances on its authority, 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. This figure is more than $300 billion higher than combined individual and corporate federal income tax receipts and equivalent to 85 percent of U.S. corporate profits in 2013. Judicial review represents the most effective remaining independent check on regulation and administrative action.

One of the primary means by which the judiciary checks the otherwise-unbridled powers of the federal bureaucracy is by evaluating whether an agency’s action violates the law. In such cases, the paramount matter in contention is the meaning of the law at issue. For many years, the courts’ held that when considering the meaning of legal text, “[i]t is for the courts, not the [agencies], ultimately to determine as a matter of law what they include.” Fed. Trade Comm’n v. Gratz, 253 U.S. 421, 427 (1920). This approach was anchored in Chief Justice John Marshall’s seminal words in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), that “i[t] is emphatically the province and duty of the Judicial Department to say what the law is.”

However, in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court held that courts should defer to an agency’s interpretation of a statute as long as the statute is “ambiguous” and the agency’s reading is “reasonable.” In practice, these terms are interpreted extraordinarily leniently for agencies. In subsequent cases, the Supreme Court has extended similar deference to other legal interpretations by agencies. For example, in Auer v. Robbins, 519 U.S. 453 (1997), the Court applied the Chevron standard to agencies’ interpretations of their own regulations. Furthermore, in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that statutory interpretations by an administrative agency can override previous interpretations by federal courts, and in City of Arlington, Tex. v. Fed. Commc’ns Comm., 133 S. Ct. 1863 (2013), the Supreme Court even went so far as to hold that a court must defer to an agency’s interpretation that concerns the scope of the agency’s jurisdiction.

The Separation of Powers Restoration Act would clarify in Section 706 of the Administrative Procedure Act that courts shall decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”

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