Prior N&C Posts: Separation of Powers Restoration Act

by Aaron Nielson — Monday, Nov. 14, 2016@Aaron_L_Nielson

Last week, Adrian Vermeule posted thoughts here on the Separation of Powers Restoration Act (“SOPRA”). In the words of Bill Funk, SOPRA “would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily both Chevron, USA, Inc. v. NRDC and Auer v. Robbins (and its forebear Bowles v. Seminole Rock & Sand Co.), but not Skidmore v. Swift & Co.

I will post some thoughts of my own. Here, however, I will repost two prior Notice & Comment posts on the subject, both from our Seminole Rock symposium.

First, Senator Hatch explained why Congress should enact this legislation. His conclusion: “With the basic change that the Separation of Powers Restoration Act would enact, we can restore accountability to the regulatory process and begin to undo the damage Chevron and Seminole Rock have wrought.” And this: “The accountability deficit that Chevron and Seminole Rock create is only exacerbated by the difficulty the other branches of government encounter in attempting to oversee agency action. Put simply, the ever-expanding size and scope of the federal government complicate efforts by politically accountable executive branch officials and Congress to monitor and influence the full range of government operations. Although congressional staff budgets and the number of political appointees in the executive branch have grown in recent years, they have not kept pace with the vast expansion of the federal bureaucracy. Examples abound of how the growth of the administrative state has diminished Congress’s ability to check agency actions that stretch statutory authority beyond the breaking point.”

Second, Bill Funk argued against the legislation. Funk acknowledged that Seminole Rock deference can be problematic because it creates incentives for agencies “to clarify rules by means of an interpretive rule or policy statement, rather than by issuing a new, clarified rule after notice and comment.” “Thus, the substitution of Skidmore respect for the great deference of Auer might well be worthwhile.” But he does not agree that SOPRA is good policy as to Chevron. After all, he argues, if Step One is faithfully applied yet uncertainty remains about the law’s meaning, then agencies — not courts — should have the final say. “Even if the administration is in the hands of a different party than Congress, Congress has more influence on agencies’ decisions than it does on courts’ decisions.”

No doubt others will share thoughts on SOPRA. But these two posts — and Adrian’s from last week — are a good place to start if you want to get up to speed on the issue.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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