Sen. Cruz Seeks to Restore Regulatory Accountability Through Judicial Review

WASHINGTON, D.C. – Today, U.S. Sen. Ted Cruz (R-Texas) joined Senate and House leaders in introducing legislation to restore accountability to the regulatory process. 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. 

“At a time when runaway executive agencies are more unwieldy than ever, empowered by a lawless president, Congress must act to reassert and restore its appropriate place as a coequal branch of government,” Sen. Cruz said. “It is encouraging to see members in both houses working together to stop unelected bureaucrats, who are wreaking havoc on our nation’s economy as well as the Constitution. This bill reverses the trend of enabling bureaucracy at the expense of Congress and the courts.” 

The Senate bill was introduced by Sens. Ted Cruz (R-Texas), Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa), Mike Lee (R-Utah), James Lankford (R-Okla.), Jeff Flake (R-Ariz.), Jim Inhofe (R-Okla.), Thom Tillis (R-N.C.), John Cornyn (R-Texas), Ben Sasse (R-Neb.), and Dan Sullivan (R-Alaska).

The House bill was introduced by Reps. John Ratcliffe (R-Texas), Bob Goodlatte (R-Va.), Tom Marino (R-Pa.), Jason Chaffetz (R-Utah), Ken Buck (R-Co.), Ted Yoho (R-Fla.), Steve King (R-Iowa), Bradley Byrne (R-Ala.), Brian Babin (R-Texas), Mo Brooks (R-Ala.), Dave Brat (R-Va.), Mia Love (R-Utah), Matt Salmon (R-Ariz.), Jeb Hensarling (R-Texas), David Rouzer (R-N.C.), Mike Bishop (R-Mich.), Gary Palmer (R-Ala.), Luke Messer (R-Ind.), Mick Mulvaney (R-S.C.), Raul Labrador (R-Idaho), Dave Trott (R-Mich.), Markwayne Mullin (R-Okla.), Jim Sensenbrenner (R-Wis.), David Schweikert (R-Ariz.), Ron DeSantis (R-Fla.), Barry Loudermilk (R-Ga.), Darrell Issa (R-Calif.), Bruce Westerman (R-Ark.), Michael C. Burgess (R-Texas), John Culberson (R-Texas), Cynthia Lummis (R-Wyo.), Mark Walker (R-N.C.), Pete Olson (R-Texas), Jason Smith (R-Mo.), Mike Kelly (R-Pa.), Jim Renacci (R-Ohio), Paul Gosar (R-Ariz.), Cathy McMorris Rodgers (R-Wash.), Doug LaMalfa (R-Calif.), Doug Collins (R-Ga.), Tom Graves (R-Ga.), Trent Franks (R-Ariz.), Blake Farenthold (R-Texas), Morgan Griffith (R-Va.), Lamar Smith (R-Texas), and Steve Chabot (R-Ohio).

Background

For many years, the nation has witnessed a steady accumulation of power within administrative agencies. As a practical matter, agencies’ power to regulate has in many ways supplanted the power of Congress to legislate and the power of courts to adjudicate. This trend has only accelerated under President Obama. His major legislative accomplishments such as Obamacare and Dodd-Frank have delegated massive amounts of power to the federal bureaucracy, and the administration has sought aggressively to push the bounds of its regulatory authorities.

The central precept undergirding the Constitution is that the preservation of liberty depends on the separation of powers among branches capable of checking each other. As James Madison put it in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The accumulation of power within administrative agencies undermines the constitutional separation of powers and the liberty it protects. Insulated from the checks and balances on its authority, the federal bureaucracy has now imposed an estimated $1.88 trillion 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. Judicial review represents the most effective remaining independent check on regulation and administrative action. 

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 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.” This change would make clear that courts are no longer allowed to defer to the bureaucracy’s assessment of the legality of its own actions.

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