Conservative Heads Spin as House GOP Backs Judicial Activism

The House Republican majority voted today for H.R. 4768, the so-called “Separation of Powers Restoration Act” – a bill that would be better called “The More Judicial Activism Act.” The bill – which has no chance of getting through the Senate or past the President’s veto ­­– would overthrow the longstanding and well-founded framework for judicial review of legislation and give unelected judges huge new powers to decide what our laws should mean. 

The heads of true conservatives must be spinning. 

For decades, Congress has written our laws, and the President has executed them, according to a well-understood framework:  When Congress writes a statute in unmistakable terms and expresses its intent clearly, executive branch agencies are bound to follow the statutory terms and congressional intent exactly. 

Often, however, Congress legislates in flexible or ambiguous terms, knowing that it cannot address every contingency that may come up in the implementation of a law.  In those circumstances, Congress knows that it is delegating some measure of decision making to executive agencies.  Congress does this knowing it can always have the last word.  Whenever Congress determines that an agency erred in interpreting a law, it can adopt new legislation to set things back on course. 

Under this framework, when a statute is clear and unambiguous, judges require agencies to follow what it says, and that is the end of the matter.  But when a statute includes flexible or ambiguous terms, courts give the executive branch leeway to interpret how those statutory terms should be applied to the situation at hand.  In such circumstances, there may be more than one reasonable interpretation.  Judges are supposed to defer to the agency’s approach if it is a reasonable interpretation of the statute. 

This common-sense framework is sometimes called the Chevron doctrine, after the famous 1984 Supreme Court case, Chevron v. NRDCIt allows the political branches to fashion and implement fair and effective laws that keep functioning in a changing world – a world in which no Congress can address every contingency in advance or make every detailed decision that has to be made in real time.

This framework actually goes back many decades before Chevron, however.  Indeed, it is rooted in the foundations of our republic.  The Supreme Court and lower federal courts have long understood that while they must hold government action to the law, unelected judges aren’t supposed to substitute their policy judgments for those of the political branches – whether Congress or the President. 

In short, federal judges are supposed to show judicial restraint.  They are not supposed to be judicial activists.

H.R. 4768 is intended to overturn the Chevron doctrine.  In so doing, it would throw the tradition of judicial restraint to the winds. By telling judges to make their decisions “de novo,” the bill invites unelected judges to overrule scientists, economists, engineers and other experts, disregard the evidence and expertise of agencies, and replace them with their own policy preferences.
This is the very definition of judicial activism. This should be anathema to conservatives and liberals alike.

Justice Scalia has spoken eloquently on the consequences of ignoring Chevron. In the case City of Arlington, Tex, v. FCC, he described a world where all the courts of appeals undertake de novo reviews of agency interpretations of statutes in a judicial search for congressional intent or what judges consider more “reasonable.” Ruling for the majority Justice Scalia wrote:

"Rather, the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determination of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the conferral of general rulemaking authority). It would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos."

The House-passed bill’s requirement for de novo review would allow a single federal district judge, or a panel of three appellate judges, to simply disregard the results of a federal agency’s rulemaking, adopted after years of public notices, proposals, stakeholder engagement, public hearings and public comments. 

Because the policy preferences of individual judges will matter more than ever, litigants will spend even more time and effort forum shopping for their favorite judges. On top of these ills, de novo judicial review of vast administrative records would further slow the wheels of the American legal system, to the detriment of every business or individual trying to get timely justice from our crowded and overworked courts. 
What is most surprising is to see support for this bill from conservatives—traditionally the strongest opponents of judicial activism. 

Doubtless, some supporters favor the bill because they reflexively support anything that appears to undo burdens on the big polluters, the big banks, or the other big industries that contribute to their campaigns. They are all too willing to sacrifice food safety, clean air and water, worker protections, safeguards against discrimination, and even the stability and security of our banks and financial institutions. 

They should be careful what they wish for. The House majority says the bill is intended to restrain liberal excesses of the Obama administration. But if it became law, the bill would as likely result in unelected judges’ overruling the decisions of future conservative administrations.  It’s worth remembering that NRDC was the losing party in the Chevron decision.  In that case the Supreme Court upheld a Reagan administration effort to streamline pollution controls for new factories. If this bill had then been law, the courts would likely have blocked the Reagan administration’s move. 
Our Constitution puts the political branches in charge of writing and implementing laws in order to assure political accountability. Turning over the meaning of our environmental and other administrative laws to unelected and non-expert judges should not be an option. This ill-conceived bill should not, and will not, become law.

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