Legal principle under fire on Capitol Hill

Source: Robin Bravender, E&E reporter • Posted: Tuesday, March 15, 2016

Congressional Republicans and legal scholars will take aim this week at the wiggle room federal judges generally give agencies during disputes about administration actions.

Republican lawmakers in both chambers have scheduled hearings this week on the so-called Chevron doctrine, referring to an opinion holding that if Congress has been silent or ambiguous about how to tackle an issue, the courts should defer to an agency’s reasonable interpretation of the law.

Conservative judges and legal experts say courts often give agencies too much wiggle room, and critics of Obama administration regulations have pushed to limit the deference granted to government officials under the law.

Some legal analysts have interpreted recent Supreme Court decisions as efforts by conservative justices — including Chief Justice John Roberts — to chip away at Chevron deference.

On Tuesday, the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law will delve into the issue.

“The central question in this debate is how much leeway should bureaucrats have in interpreting statutes passed by Congress,” Judiciary Chairman Bob Goodlatte (R-Va.) and subcommittee Chairman Tom Marino (R-Pa.) said in a statement.

“The laws that we charge our federal government with implementing have real impacts on hardworking American workers and households as well as American businesses. We must ensure that our laws are interpreted properly and in a manner consistent with congressional intent,” they added.

“This hearing will bring greater clarity to the question of what Congress must do to alleviate confusion when it comes to the proper implementation of the law.”

Later this week, Senate lawmakers will take their own stab at the controversy. The Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management is slated to question another panel of lawyers and professors Thursday.

Last year, the subcommittee, led by Sen. James Lankford (R-Okla.), held a similar hearing that looked at the role of judicial review in the regulatory process (E&E Daily, April 19, 2015).

“To follow up on that hearing, the Subcommittee will focus specifically on the Chevron deference” this time around, panel aides wrote. Using the Chevrondoctrine, “agencies understand that courts will defer to their reasonable interpretation of statutory ambiguities which raises fundamental questions about separation of powers and judicial independence.”

They said the hearing will scrutinize “Chevron’s constitutionality, use by the courts, and impact on agency rulemaking, as well as explore Chevron deference’s future” by asking whether it’s the best tool for courts to review agencies’ interpretations of laws.

Schedule: The House hearing is Tuesday, March 15, at 1:30 p.m. in 2141 Rayburn.

Witnesses: George Washington University School of Law professor Jonathan Turley, University of Virginia School of Law professor John Duffy, Emory University School of Law professor George Shepherd, Boston University School of Law professor Jack Beermann and George Washington University School of Law professor Emily Hammond.

Schedule: The Senate hearing is Thursday, March 17, at 9 a.m. in 342 Dirksen.

Witnesses: Charles Cooper, partner at Cooper & Kirk PLLC; Neomi Rao, associate professor at George Mason University School of Law; and Michael Herz, professor at Cardozo School of Law.