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House Judiciary Subcommittee Approves Bill to Undo Chevron Deference

June 7, 2016. The House Judiciary Committee's (HJC) Subcommittee on Regulatory Reform, Commercial and Antitrust Law amended and passed HR 4768 [LOC | WW], the "Separation of Powers Restoration Act of 2016", by a vote of 12-8. See, HJC release and HJC web page for this meeting.

For a summary of this bill as introduced, see story titled "House Judiciary Committee to Mark Up Bill to Undo Chevron Deference" in TLJ Daily E-Mail Alert No. 2,817, June 7, 2016.

The bill as introduced amends the Administrative Procedure Act (APA) to provide that the judiciary should not defer to an agency's interpretation of statutes. The Subcommittee approved an amendment in the nature of a substitute (AINS) that adds that the judiciary should not defer to an agency's interpretation when it acts under an agency procedure statute specific to that agency. Also, it provides that courts should not defer to an agency's interpretation of its rules.

The Federal Communications Commission (FCC) promulgates rules pursuant to the APA. FCC Commissioners and staff are aware that the courts apply Chevron deference. They often write rules based upon far fetched interpretations of statutes, and then argue, often successfully, that the courts must defer to them.

However, little of the debate focused upon the FCC. Although, Rep. Suzan DelBene (D-WA) spoke in opposition to the bill, and in support of an amendment offered by Rep. Hank Johnson (D-GA). She focused on FCC rulemakings related to making more spectrum available for wireless communications. She argued that more spectrum must be allocated for 5G wireless services.

She said that HR 4768 is "misguided legislation", and that the "courts are not equipped to second guess the FCC's technical experts". She said nothing about FCC rulemakings on other topics.

Rep. Bob Goodlatte (R-VA), Chairman of the HJC stated that often the agency officials who write rules come to the agency from interest groups. Then, they write rules that favor their interest groups. However, he did not use the terms "rent seeking" or "regulatory capture".

Rep. Goodlatte stated at the meeting that "Today's federal administrative state is an institution unforeseen by the Framers of our Constitution that has turned into a runaway regulatory state. As a result, our system of checks and balances is tipping away from the legislative and judicial branches, and toward a vast, overreaching executive branch. The precedent set by Chevron has been a catalyst for this imbalance in our system of government, and SOPRA will tip the scales back to the way our Framers intended."

Rep. Johnson spoke in opposition to the bill. He said that it is a "misguided and dangerous bill".

He said that the courts should defer to agencies, and expressed concern about the Environmental Protection Agency's (EPA) interpretation of the Clean Air Act.

Rep. Sheila Lee (D-TX) asserted that the "bill would jeopardize the ability of the Department of Homeland Security" to protect the nation. She also sits on the House Homeland Security Committee (HHSC).

The Subcommittee considered and rejected on roll call votes four amendments to the AINS. Democrats offered all four. One would have created an exemption for the the DHS. Another would have created an exemption for the Food and Drug Administration (FCA). Another would have created an exemption for Environmental Protection Agency (EPA).

Another irrelevant amendment was ruled non-germane by Rep. Goodlatte. Democrats backed a motion to appeal that ruling. Republicans backed a motion to table that motion, which passed.

Only about half of the members of the Subcommittee participated in the mark up. All votes broke down along party lines. The vote on final passage was 12-8.

The Republicans who were most active at the mark up were Rep. Goodlatte, Rep. Tom Marino (R-PA), Rep. Darrell Issa (R-CA) and Rep. John Ratcliffe (R-TX). In addition, several did not miss any of the six roll call votes -- Rep. Randy Forbes (R-VA), Rep. Trent Franks (R-A), Rep. Dave Trott (R-MI), and Rep. Bob Bishop (R-UT).

The Democrats who were the most active were Rep. John Conyers (D-MI), Rep. Lee, Rep. Johnson, Rep. David Cicilline (D-RI), and Rep. DelBene.

(Published in TLJ Daily E-Mail Alert No. 2,818, June 8, 2016.)