During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive. The Regulatory Accountability Act of 2017 is one remarkable example. It was introduced as a free-standing bill in 2016, but the Senate did not act upon it, perhaps because then-President Obama would almost surely have vetoed it. But now the House of Representatives has re-introduced this legislation (on January 3, 2017) as H.R. 5. If enacted, the law would have a profound effect on the agendas of administrative agencies, such as the Environmental Protection Agency, the Department of Energy, and the Department of Labor.
Title II of Regulatory Accountability Act, styled the “Separation of Powers Restoration Act,” would overturn two landmark Supreme Court decisions—Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997)—by amending Section 706 of the Administrative Procedures Act. The key provision states that any court reviewing an administrative action shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.” “De novo” review means that the reviewing court gives no deference to the legal opinions of either the parties or lower court judges and administrators. In Chevron, the Supreme Court held that reviewing courts should defer to an agency’s interpretation of an ambiguous statute. Auer, written by the late Justice Antonin Scalia, similarly held that for an agency’s “own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”
In recent years, several Supreme Court justices—including Justice Scalia—have questioned both the logic and constitutionality of Chevron and Auer. These critics contend that judicial deference to agency interpretations of the statutes and regulations they administer violates separation of powers principles (hence the name of Title II). Legislators who support the Separation of Powers Restoration Act have advanced related concerns: that Congress currently lacks an incentive to draft clear laws, and that the Executive Branch charged with resolving statutory ambiguities faces backlash for unpopular decisions, thus insulating Congress from political accountability. They also argue that Chevron gives courts an incentive to shirk their role in striking down arbitrary and unlawful agency actions.
The current deference regime enjoys bi-partisan support, despite its inconsistency with Section 706 of the Administrative Procedures Act, which requires de novo review of agency actions. Indeed, deference favors stakeholders who support an administrative determination, like a decision to issue a permit or adopt a less stringent emission standard. In the environmental arena, where non-governmental organizations routinely challenge environmental rules and permits, the benefits of Chevron and Auer to the regulated community are often overlooked.
Supporters of Chevron advance several justifications for deference: agencies’ technical expertise that would inform the meaning and administration of federal statutes; political accountability of the executive branch (compared to the unelected federal judiciary); and the notion that Congress would prefer that agencies have the interpretive power that Chevron confers. Skeptics of the Separation of Powers Restoration Act have suggested that replacing Chevron with de novo judicial review might actually increase legal uncertainty: judges with life-time tenure would be forced to exercise their judgments on policy decisions made by specialized agencies under the direction of the Executive Branch. Overturning Chevron could also increase litigation and forum-shopping by stakeholders seeking to overturn agency regulations they oppose. To be sure, enhanced judicial review of agency rules could produce better decisions and outcomes. But it is far from clear whether shifting review of agency actions from the Executive to the Judicial Branch will increase legal predictability or political accountability.