Experts: New Bill Could Stop Executive Overreach

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Kevin Daley Supreme Court correspondent
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A House panel approved legislation Wednesday that ends a judicial doctrine the Obama administration regularly relies upon when promulgating new rules and regulations.

The Separation of Powers Restoration Act (SOPRA) repeals the Chevron doctrine, which requires that courts defer to a federal agency’s interpretation of the law unless their interpretation is “unreasonable.” Instead, the bill provides that a court should conduct a review of “all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules” when evaluating federal rules and regulations.

Elizabeth Slattery, a fellow at the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies, welcomes the development.

“This [SOPRA] would really bring back a layer of oversight because that really is something the court should be providing,” Slattery told The Daily Caller News Foundation. “When a rule is injuring a citizen and they’re able to come into court and challenge it, they should get real, meaningful judicial review and not this sort of ‘Well, the agencies interpretation is good enough for government work.'”

Slattery also says that judicial review of federal rules and regulations could effectively supplement executive branch agency oversight. The executive branch has historically struggled to effectively oversee the sprawling federal bureaucracy.

“Also it would provide a layer of oversight on the agencies that is sorely needed,” she said. “Right now Congress will pass a very broad delegation, a very broad law, delegating immense authority to an executive agency, with the idea that the president and heads of the agencies are going to be keeping tabs on what’s going on. But in reality there are so many federal bureaucrats and so many agencies that it’s hard for the executive branch to keep track of all of the regulations.”

Chris Horner, an attorney at the Energy and Environment Legal Institute, says Chevron deference has long abetted activist bureaucrats of all stripes in pursuing ideological agendas.

“Chevron has provided cover for ideological and/or political hacks, including those who never received – and many who could not receive – Senate approval, giving them the benefit of the doubt as ‘agency experts’ despite behaving as nothing more than ideological or political hacks given the keys to the policy kingdom,” he told theDCNF.

“Thus the real question, in the face of the fear-mongering campaign against this reform, is whether ideological or political hacks, including many who never did or would never be able to muster the approval of half of the Senate, are somehow inherently more able to make these decisions than federal judges whose intellect and curiosity was deemed superior enough to be approved for lifetime appointment,” he continued. (RELATED: Republicans Move To Crush Influence Of Obama’s National Security Council)

Slattery agreed that the prerogative of the courts ought to supersede the prerogative of policy makers. “It is their duty to say what the law is, it’s certainly not the executive branch’s duty,” she said. She also suggested that scuttling the Chevron doctrine would reduce confusion in the judiciary, claiming that the standard is “malleable” to the extent that the Supreme Court has provided very little guidance to lower courts regarding its application. “The thing about Chevron is it’s so inconsistently applied right now, when it’s even applied at all,” she explained, invoking the Obamacare cases as exemplifying her point.

Horner contends that judicial kowtowing to the administrative state has had a profoundly corrosive effect on policymaking. “It [Chevron deference] has become the source of the greatest abuses in government today, licensing a wholesale corruption of the policymaking process, particularly given Congress’s dereliction of duty in the form of often vague grants of authority to the executive branch and its ineptitude in enacting rifle-shot corrections when laws are demonstrated to have been abused by bureaucrats granted deference,” he argued.

Slattery says the legislation could amount to a significant restriction on the power of federal agencies.

“I would hope it would have a positive impact on agencies so they would basically stop trying to push the boundaries of expansive interpretations,” she said.

Now that the legislation has been approved in committee, it will proceed to the floor for consideration by the entire House. The Senate is also currently considering its own version of the House bill. If passed by both chambers, the bill will go to the president for his signature or veto. The president has not publicly expressed an opinion on the legislation.

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