Jul 11, 2016

Leader McCarthy in Washington Examiner: Restoring the Courts’ Proper Role in Dealing with Federal Agencies

Washington Examiner | July 11 , 2016

Co-authored by Majority Leader Kevin McCarthy (CA-23) and Representative John Ratcliffe (TX-04)

In America, we have a simple system to resolve legal disputes that seems so natural we almost take it for granted. When a person has a problem with the law, she goes to court where a judge and perhaps a jury are tasked to impartially apply the law to her situation and determine an outcome. It’s not a perfect system, but it has worked for centuries.

What would be ridiculous is if a person has a problem with the law, goes to court, and finds the very officer who arrested her sitting as judge and jury. There is such an obvious conflict of interest that any American would recognize this situation as unjust.

The person who enforces the rules should never be the same person judging whether those rules have been violated. That’s a part of our history going back before the American colonial age, all the way through the founding and beyond. Our forebears recognized that putting the powers to enforce the law and adjudicate the law into just one person or one body is an open invitation to tyranny.

So Americans should rightly be shocked to find out that this injustice has effectively become the law of the land, allowing federal agencies to run roughshod over the checks and balances instilled in our Constitution.

Two little-known Supreme Court cases — Chevron v. NRDC and Auer v. Robbins — declared that anytime a law passed by Congress is ambiguous or silent on an issue overseen by some agency, the court must defer to the agency’s interpretation of the law, so long as that interpretation doesn’t obviously contradict congressional statute. This deference has been expanded so far that agencies have even been granted the right to interpret their own rules.

This leads to a growing number of instances where the agency effectively puts itself right on the bench in the place of the judge. So when a citizen challenges a regulation or how an agency interprets a law from Congress, the agency almost always wins simply by arguing that its interpretation is right. The court, according to these precedents, then defers to the agency’s view.

The result is a massive abuse of power. Courts are charged to apply the law equally. Agencies are not. All too often, agencies are mostly concerned with increasing their own power and the reach of their regulations, even at the expense of the common good.

The losers in all this are American citizens and small businesses trapped in a web of needlessly complex regulation. Further, because of these court decisions, the people are unable to challenge the most problematic regulations that could impede their ability to employ new people, infringe on their property rights, or add ridiculous and unnecessary compliance costs in the form of both time and money. As a result of excessive deference to regulators, the law no longer works for the people’s well-being, but instead the bureaucracy’s.

Not only do the people lose in the courtroom, but this system also undermines their power of self-government. When unaccountable bureaucrats decide what rules govern our country simply by asserting that their interpretation of the law is correct, the people’s voice expressed through their elected representatives is cut out.

Unfortunately, part of this is Congress’s own fault. For many years, Congress avoided the tough issues by delegating hard decisions to federal agencies. Many past Congresses wrote laws ambiguously to cover their own backs, letting the regulators fill in the details — details which could go far beyond what the people or their representatives would have ever intended or wanted.

In order to restore the people’s voice in their government as well as the separation of powers necessary for impartial trials — really in order to restore constitutionalism — we are in desperate need of reform. The House answered that need a few weeks ago with a plan from our Better Way Initiative to Restore Constitutional Authority.

Our plan would end judicial deference to agencies granted by the Chevron and Auer decisions through the Separation of Powers Act, introduced by Rep. John Ratcliffe (R.-Tex), which the House will vote on this week. This will restore the courts’ proper role in actually reviewing, rather than deferring to, how agencies have interpreted regulations and their underlying regulatory statutes. It will also create an incentive for Congress to write clearer laws that are less easily abused by bureaucrats.

America was made great because generation after generation understood that laws must ultimately come from the people’s representatives and that the people must have recourse to a fair and impartial trial before a judge independent of the executive. When we reassert these fundamental principles of our Constitution, the people will again have a government that listens more closely to them and is more responsive to their needs.