Mar 18 2016
Last month I joined nine of my colleagues from the House and Senate to launch the Article I Project (A1P): a bicameral network of conservative policymakers working together on a new agenda of government reform and congressional re-empowerment.
At a time when our political system in Washington is held in such low regard by Americans of all political stripes, it may sound bizarre to talk about re-empowering Congress, one of the most distrusted institutions in the country.
But the premise of A1P is that the systematic dysfunction within our federal government is a result of a legislative branch that is not too strong, but too weak.
Our goal is simply to make Congress once again responsible – both in the sense of doing our constitutional duty, and doing it transparently so that our fellow countrymen can hold us accountable for the choices we make.
Over the course of the twentieth century, and accelerating in the twenty-first, Congress has handed too many of its constitutional responsibilities to the Executive Branch, creating a “headless fourth branch” of the federal government, untethered from any clear lines of accountability connecting policy, policymakers, and the people.
This upending of our constitutional order has led not only to bad policy, but to deep public distrust in our governing institutions.
Although Congress bears primary responsibility for this toxic state of affairs, the other two branches share in the blame.
In particular, the Supreme Court’s doctrine of “Chevron deference” has helped to midwife this shadowy fourth branch, by requiring Courts, under certain circumstances, to surrender their Article III constitutional power of judicial review to executive agencies. That is, with a sufficiently clever legal theory, an executive agency can impose on the American people laws that the people’s elected representatives never actually pass.
Chevron deference is hardly the only problem with the administrative state, nor is it the biggest. But it is one of the least defensible problems, with a clear and obvious fix.
The “Separation of Powers Restoration Act of 2016” is that fix. The bill would scrap the artificial and extra-constitutional deference standard set in Chevron and replace it with traditional judicial review of administrative actions. It would require courts to review challenges to agency interpretations of statutes or regulations “de novo” – that is, starting fresh from the text of the law or regulation itself, rather than preemptively deferring to the agency’s lawyers.
"Chevron deference is hardly the only problem with the administrative state, nor is it the biggest. But it is one of the least defensible problems, with a clear and obvious fix."
The only controversial aspect of this legislation is the unfair and un-American status quo it would reform. After all, interpreting the law, and ensuring it conforms with the Constitution, is not a novel understanding of the Judiciary’s role in our system of government. It’s what federal judges are for.
So A1P’s work to make members of Congress once again do their job begins with our work – and unanimous endorsement of this reform – to allow federal judges to once again do theirs.