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Senator Lankford, Inhofe and Members of Congress Introduce Bill to Restore Regulatory Accountability Through Judicial Review

WASHINGTON, DC – Senators James Lankford (R-OK), Jim Inhofe (R-OK) and a coalition of Members from both Houses of Congress today introduced a bill to restore accountability to the regulatory process through proper judicial review, correcting the judicial deference created by the flawed 1984 Chevron Supreme Court decision. The bill, called the “Separation of Powers Restoration Act” would empower the courts, not agencies, to interpret all questions of law, including both statutes and regulations. 

The 1984 landmark Supreme Court ruling of Chevron U.S.A., Inc. v. Natural Resources Defense Council established a legal test for determining whether to grant deference to a federal agency’s interpretation of a statute that it administers. The ruling created the framework allowing courts to defer to reasonable agency interpretations of ambiguous statutory text, independent of the court’s judgment.

“This bill addresses the increasingly prevalent executive overreach where federal agencies, not directly accountable to the American people, write laws, rather than the United States Congress,” said Lankford. “As the administrative state has grown and the issues we face have become more complex, federal agencies wield ever-increasing power. Frequently, Congress creates broad laws, giving agencies the power to fill in the blanks through rulemaking and defend their interpretations of those laws and rules in court. Meanwhile, courts restrain their own judicial power by allowing agencies to interpret statutory and regulatory text. This deference to the executive branch creates an imbalance in our constitutional system’s balance of powers, favoring centralized executive power over the legislative and judicial powers. The result is that the vast majority of laws burdening everyday Americans come not from politically accountable officials in Congress, but from unelected bureaucrats in federal agencies. Through several hearings before my Regulatory Affairs Subcommittee, it has become apparent that this deference to agencies harms everyday Americans. This is not how the Founders intended for government to work. To restore Congress’ and the courts’ role in our constitutional system, we need the Separation of Powers Restoration Act to ensure that agencies don’t get a blank check to make and interpret law.”

The Separation of Powers Restoration Act was also introduced by Senators Grassley (R-IA), Ted Cruz (R-TX), Orrin Hatch (R-UT), Mike Lee (R-UT), Jeff Flake (R-AZ), Thom Tillis (R-NC), John Cornyn (R-TX), Ben Sasse (R-NE), and Dan Sullivan (R-AK). The House version was introduced by Congressman John Ratcliffe (R-TX) and House Judiciary Committee Chairman Goodlatte (R-VA).

Lankford has chaired two hearings on this issue in his Subcommittee on Regulatory Affairs and Federal Management, and he wrote an op-ed last July on the topic entitled, “Judicial Deference Enables Agencies to Usurp Congress’s Legislative Power.”

“At the core of our unique system of government are three equal branches – the legislative, executive, and judiciary,” said Inhofe. “However, under the Obama administration, executive branch overreach has upset that balance. The Environmental Protection Agency has repeatedly been among the worst offenders. The American people can no longer afford EPA’s costly and lawless regulatory actions premised on the notion of agency deference.  This ‘just trust us’ mentality is not enough.  This bill is an important step to restore the necessary balance among the branches and protect the American people from excessive executive overreach.”

“Regulators have taken advantage of the courts’ deference under Chevron to shoehorn the law into their own political agenda, expanding their authority well beyond congressional intent,” said Judiciary Committee Chairman Chuck Grassley (R-IA). But the Constitution’s separation of powers makes clear that it is the responsibility of the courts – not the bureaucracy – to interpret the law. And they should do so independently. This bill reasserts the clear lines between the courts’ role in interpreting the law, and the Executive Branch’s role in enforcing the law.  By doing so, it takes a strong step toward reining in the regulators.”


For many years, the nation has witnessed a steady accumulation of power within administrative agencies. As a practical matter, agencies’ power to regulate and to adjudicate has supplanted the legislation and judicial review as the primary means by which governance takes place at the federal level. This trend has only accelerated under President Obama; his major legislative accomplishments (like Obamacare and Dodd-Frank) have delegated massive amounts of power to the federal bureaucracy, and the administration has sought to aggressively push the bounds of its regulatory authorities. Insulated from the checks and balances on its authority, the federal bureaucracy has now imposed an estimated $1.88 trillion regulatory burden on the economy annually, according to the Competitive Enterprise Institute. That equals roughly $15,000 per household and 11.5% of the nation’s 2012 GDP. It is more than $300 billion higher than combined individual and corporate federal income tax receipts and equivalent to 85% of U.S. corporate profits in 2013.

One of the primary means by which the judiciary checks the otherwise-unbridled powers of federal bureaucracy is by evaluating whether an agency’s action violates the law. In such cases, the paramount matter in contention is the meaning of the law at issue. For many years, the courts’ held that when considering the meaning of legal text, “[i]t is for the courts, not the [agencies], ultimately to determine as a matter of law what they include.” Fed. Trade Comm’n v. Gratz, 253 U.S. 421, 427 (1920). This approach was anchored in Chief Justice John Marshall’s seminal words in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), that “i[t] is emphatically the province and duty of the Judicial Department to say what the law is.”

However, in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court held that courts should defer to an agency’s interpretation of a statute as long as the statute is “ambiguous” and the agency’s reading is “reasonable.” In practice, these terms are interpreted extraordinarily leniently for agencies. In subsequent cases, the Supreme Court has extended similar deference to other legal interpretations by agencies. For example, in Auer v. Robbins, 519 U.S. 453 (1997), the Court applied the Chevron standard to agencies’ interpretations of their own regulations. Furthermore, in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that statutory interpretations by an administrative agency can override previous interpretations by federal courts, and in City of Arlington, Tex. v. Fed. Commc’ns Comm., 133 S. Ct. 1863 (2013), the Supreme Court even went so far as to hold that a court must defer to an agency’s interpretation that concerns the scope of the agency’s jurisdiction.

The Separation of Powers Restoration Act would clarify in Section 706 of the Administrative Procedure Act that courts shall decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”