By Jarrett Dieterle
Rep. John Ratcliffe’s (R-TX) Separation of Powers Restoration Act was introduced early this year. Unlike some bills, the act’s title precisely encapsulates its purpose: restoring the power disparity in our system of separated powers.
As close observers of our political system know well, the modern presidency has grown precipitously compared to Congress. While Congress itself deserves much of the blame for this state of affairs by over-delegating its powers to the executive branch, the third branch of our system has also been complicit. Under the judicial doctrine known as “Chevron deference,” the federal judiciary has systematically deferred to executive agencies when it comes to interpreting laws.
As R Street has noted previously, Chevron deference has become increasingly controversial in the legal community:
"[Chevron deference means that] unless an agency’s interpretation of a statute is unreasonable, courts must adhere to it. Unsurprisingly, this allows agencies significant leeway to exercise their regulatory powers.
"This level of deference to agency interpretations … has become contentious. There continues to be an ongoing debate among judges, legal scholars and practitioners about the propriety of according federal agencies such broad deference."
Rep. Ratcliffe’s bill addresses this issue by calling for an end to such deference; in its place, the bill would require courts to review agency actions de novo (“from the beginning”) and without deference.
LegBranch.com recently spoke with Rep. Ratcliffe about his bill, which he feels would provide an “immediate and profound” step forward in the effort to rein in the executive branch. As Ratcliffe put it, Chevron deference gives agencies the ability to “grade their own paper,” since their interpretation of statutes within their jurisdiction usually prevails in court.
For Ratcliffe, eliminating judicial deference to agency legal interpretations strikes at the very heart of our constitutional framework. “The wisdom of the founding fathers was that there would be a system of checks and balances,” Ratcliffe notes. “This is what Chevron deference has thrown out of balance; it should be the legislature that writes the laws, not agencies.”
Despite the relatively simply nature of his bill—its entire text barely exceeds 150 words—it remains controversial. Ratcliffe notes, however, that a version of the bill passed the House with at least some bipartisan support from several Democrats. According to Ratcliffe, President Trump has also been receptive to the bill, which puts the ball squarely in the Senate’s court.
Given the Senate’s busy calendar, it’s anyone’s guess whether it will take up and pass the Separation of Powers Restoration Act. But those interested in checking the growth of the executive branch will certainly be keeping watch.
C. Jarrett Dieterle is a governance project fellow with the R Street Institute.