Primer on the Separation of Powers Restoration Act
Summary: The House of Representatives will vote today on H.R. 4768, the Separation of Powers Restoration Act (SOPRA). This bill would direct courts to stop giving deference to an agency’s interpretations of its authorizing statutes and implementing regulations.
Administrative agencies enjoy three major structural advantages when their regulations undergo judicial review.
- First, agencies usually participate in the drafting of their authorizing statutes. As a result, agencies possess a unique familiarity with the texts at controversy before the reviewing court.
- Second, notice and comment rulemaking is a tremendous aid to the government during judicial review of agency regulations. An industry’s legal challenge is limited to issues that the regulated entity brought up during the rulemaking. The result is that the agency in the notice and comment process is given the opportunity to vet a challenger’s argument before the legal fight begins. The regulated litigant, by contrast, has to wait until judicial review beings before it learns the agency’s tactics. This is a big strategic advantage.
- Third, Article III courts give controlling respect to reasonable agency interpretations of their organic statutes, which is known as Chevron deference.
Chevron deference is easily the most famous and controversial principle in administrative law. At its theoretical core, the doctrine is based on the recognition that policymaking is inescapable to the resolution of statutory ambiguities. Simply put, interpreting statutes entails lawmaking. In the landmark case Chevron v. NRDC, the Supreme Court concluded that that Congress intended for administrative agencies to possess this interpretive authority (over their enabling statutes), rather than judges, due to the former’s comparative strengths in expertise and accountability. To be sure, Congress never expressly stipulated an institutional preference for administrative agencies, and not federal courts, to make policy by resolving statutory ambiguities. Instead, the Court inferred that such a congressional instruction is inherent to a delegation of lawmaking authority to administrative agencies through the enactment of enabling statutes.
Here’s how it works. When an agency’s statutory interpretation undergoes judicial review, it needs only to be reasonable to pass legal muster. So the court may believe that its own interpretation is a superior reading of the law, but, under Chevron, it would have to give way to the agency’s construction.
From an institutional perspective, the problem with Chevron deference is that it seems to fly in the face of the judiciary’s role, as famously articulated by Chief Justice John Marshall, “to say what the law is.” Moreover, Chevron’s assumption that Congress intended for courts to defer to an agency’s interpretation also operates in considerable tension with the Congress’s express stipulation in the Administrative Procedure Act that “the reviewing court shall decide all relevant questions of law.” (5 U.S.C. §706).
From a practical perspective, Chevron deference has been a crucial impetus for the growth of the administrative state. Due to the richness of the English language, it is easy for an agency to engineer ambiguity into virtually any statutory provision. Having thus engendered a textual imprecision, the agency can then advance an expansive interpretation that grants itself greater regulatory authority.
Consider, for example, the EPA’s marquee climate regulation, known as the Clean Power Plan. The rule would radically overhaul oversight of the electric industry, and, in this manner, it grossly expands the EPA’s power. According to the EPA, the rule is authorized by a new interpretation of the word “system of emissions reduction” in the Clean Air Act. For forty years, the agency construed this phrase to mean a set of controls for an individual source. However, with the Clean Power Plan, the agency expands its interpretation of “system” to “encompass virtually any ‘set of things’ that reduce emissions,” including the entire electric industry. In the proposed Clean Power Plan, the agency took the highly unusual step of noting—during the rulemaking and before judicial review—that its interpretation merited Chevron deference.
In this manner, Chevron deference has facilitated the growth of the regulatory state. Today, the House will vote on a bill, H.R. 4768 the Separation of Powers Restoration Act (SOPRA), that would check Chevron by signaling the Congress’s express intent that judges, and not agencies, should say what the law means. To be precise, the law would amend the Administrative Procedure Act to require that courts review “de novo” agency interpretations of texts with the force of law. De novo is just a fancy Latin phrase for saying that the Courts should decide for themselves the best reading of statutes and regulations.
While I welcome SOPRA, it is not perfect. For example, many enabling statutes, such as the Clean Air Act, have their own provisions regarding judicial review that are independent of the Administrative Procedure Act. As such, SOPRA wouldn’t apply to many important regulatory regimes.
Also, it’s unclear whether the legislation would unduly burden the courts. On the one hand, many regulations have been upheld due to Chevron, and there is a fear that all of these regimes could be challenged anew, under the less favorable (to the agency) de novo standard. This could let loose a flood of litigation.
On the other hand, it is possible that SOPRA would work to lessen the judiciary’s work load. Since the Chevron principle was first articulated in 1984, the Supreme Court has narrowed the doctrine’s domain with a number of carve-outs. For example, the Court in 2001 established a presumption that interpretations in informal formats presumptively do not warrant controlling deference. And in 2015, the Court held that Chevron is inappropriate when the interpretation involves “big questions” of economic and social significance. In recent testimony before the Congress, Prof. John Duffy argued that SOPRA, by getting rid of Chevron deference, would also get rid of the complex litigation over whether the Chevron framework is applicable to the controversy at hand.
Finally, I should note that a de novo review does not preclude the court from considering an agency’s expert viewpoint. Under the Skidmore doctrine, a court may accord respect to an agency’s textual interpretation to the extent it is persuasive. Whereas Chevron is based on a presumed congressional preference for agencies to make policy by resolving statutory ambiguities, Skidmore is an interpretive tool that is purely a function of the judiciary, akin to federal common law. It is highly doubtful that Congress is constitutionally empowered to tell judges they couldn't find persuasive an agency's interpretation.
In sum, SOPRA is a worthy bill. However, there is more to be done to effectively rein in the leviathan state. Also, there is the possibility that the bill could lead to significant increase in workload for the judiciary. In the event SOPRA becomes law, Congress should be prepared to invest in Article III resources if it becomes apparent that courts are strained. To this point, my colleague Ryan Radia has noted, “…for about $100m annually, the Judiciary could hire another 36 appellate judges and 140 district court judges, plus the accompanying clerks and assistants. That’s chump change as far as the federal budget is concerned.”
- House Conference Report on SOPRA
- June 2nd event on “Rethinking Judicial Deference” (including a panel on SOPRA) at the George Mason Antonin Scalia Law School Center for the Study of the Administrative State
- May 17th House Judiciary Hearing on SOPRA
- FORTHCOMING: I have a final draft of a law review article that I’m soon to pitch & also post to SSRN, in which I compare the Chevron, Auer, and Skidmore doctrines as they are applied in the U.S. Courts of Appeals. The study reviews all rulings from 1993 to 2013 that invoked Auer; for Chevron and Skidmore, I conducted simple random sampling to achieve samples representative of the population of cases from the same period. All told, the paper reviews 1,119 interpretations across 1,048 decisions. The dataset is used to model the administrative burden of an “Auer Step Zero.”
For simplicity, in this post I only discuss one of the two mandatory deference doctrines in federal administrative law. In addition to Chevron, courts give “Auer” deference to agency interpretations of their own regulations. In practice, Chevron and Auer deference have the same effect. Regulations carry the force of law no less than statutes, so resolving ambiguities in either text involves the same sort of policymaking. The two doctrines also share the same justification. In 1991, the Supreme Court explained that Auer deference, like Chevron deference, is based on a presumed congressional preference for agencies. In light of the fact that the Chevron and Auer doctrines share the same rationale and impact, it follows that SOPRA would have the same effect on both.