Congress Takes Up Bill to Restrict Interpretive Powers of ‘Unelected Bureaucrats’

Congressional Republicans are pushing to limit the discretion federal agencies hold in interpreting laws, with the goal of reining in the power of unelected civil servants.

The House on Monday began consideration of a measure to undo a more than three-decades-old court precedent that gives agencies leeway in carrying out the finer points of laws Congress left open ended. The 2016 Separation of Powers Restoration Act would statutorily roll back the Chevron and subsequent Auer doctrines -- named after the Supreme Court cases that set the precedents -- that have established the standard courts use in reviewing agency implementation of federal statute. 

Chevron essentially dictates that courts defer to agencies to interpret areas of a law that Congress has not explicitly spelled out, as long as the interpretation falls generally within the agency’s statutory authority. Auer gives agencies similar authority in carrying out their own ambiguous regulations.

The Republican measure, introduced in the House by Rep. John Ratcliffe, R-Texas, and in the Senate by Orrin Hatch, R-Utah; Chuck Grassley, R-Iowa; and Mike Lee, R-Utah, would instead leave it up to the courts to interpret ambiguities in federal law. Under the bill, if a case were brought to court challenging a federal agency’s regulatory interpretation of a law, the court would be forced to review the case using a “de novo” standard. The courts would make a decision independent of any previous rulings on the case and without consideration of the agency’s interpretation of the relevant law.

Critics of stripping agencies of that flexibility, including conservatives like the recently deceased Associate Justice Antonin Scalia, have said removing judicial deference would cause instability and chaos. Paul Verkuil, a senior fellow at the Center for American Progress and former chairman of The Administrative Conference of the United States (an independent government agency responsible for overseeing federal agencies’ regulatory programs) said in a recent op-ed Chevron and other doctrines allow federal employees with “expertise in the subject matter and technical details of implementing and enforcing statutes” to fill in the holes left open in law.

Proponents of the bill have said the measure would rein in unelected bureaucrats with too much latitude in asserting their regulatory agenda on the American people.

“The constituents I represent aren’t just frustrated with the enormous quantity of regulations being rolled out by unelected federal bureaucrats,” Ratcliffe said when introducing the measure. “They’re fed up with the lack of accountability administrative agencies have when they make all these rules out of thin air.”

He added feds have been allowed to “run free” for too long and now hold unconstitutional powers.

“We’ve already seen unelected bureaucrats try to tell people what kind of light bulbs they can buy, attempt to regulate puddles in people’s backyards and fail immensely at taking over Americans’ health care,” the congressman said. “We must ensure the integrity of our three co-equal branches of government, and this legislation will stop administrative agencies from taking powers the Constitution does not give them.”

The consideration of the measure follows a pillar of A Better Way, a series of policy initiatives put forward by House Republicans -- led by Speaker Paul Ryan, R-Wis. -- to, among other things, to ensure “agencies and bureaucracies adhere to the letter of the law.”

In addition to minimizing judicial deference, Ryan called on Congress to write more specific laws that give agencies little wiggle room during the implementation process. He accused agencies of succumbing to a growing “arrogance” as their power has gone unchecked.

In a Monday op-ed, House Majority Leader Kevin McCarthy, R-Calif., said the current system is the equivalent of arresting police officers serving as the judge and jury in the trials of those they apprehended. Agencies, he said, rarely lose in court, as they simply argue their interpretation is correct and judges are forced to defer to the agencies’ views.

“The result is a massive abuse of power,” McCarthy wrote. “Courts are charged to apply the law equally. Agencies are not. All too often, agencies are mostly concerned with increasing their own power and the reach of their regulations, even at the expense of the common good.”

Verkuil, however, said Republicans are injecting politics into a system that was designed specifically to avoid it. The point of the current precedent, he said, is to “leave policy questions to the political branches and have the courts, who have no political constituency, stay out of it, unless there is a clear legal question to decide.”