Diary

Taking Back Powers Usurped by Unelected Bureaucrats

At a young age, Americans learn about the separation of powers enshrined in our Constitution.  This concept was of prime importance to the Founding Fathers because many had endured themselves, the negative consequences that stem from a government with a single, dominant branch. Their collection of experiences under regimes with disproportionate governing branches was the inspiration behind the establishment of the delicate system of checks and balances on which our nation is founded.

James Madison was so repelled by the thought of an unbalanced government, that he declared the accumulation of powers all in the same hands as the “very definition of tyranny.” If he was alive today, he certainly wouldn’t be pleased with the state of affairs. Since the days of our Founders, we’ve witnessed quite a shift away from the original separation of powers established by the Constitution. A shift that’s become more drastic over time, resulting in the emergence of an almighty administrative state filled with unelected federal bureaucrats who have the ability to effectively implement, interpret and create laws.

The practice of administrative agencies engaging in de facto “lawmaking” was exacerbated by a 1984 Supreme Court decision, Chevron U.S.A. v. NRDC, which determined that courts must defer to agencies’ interpretation of ambiguous laws as long as their interpretation is deemed “reasonable.” And more than three decades after the “Chevron doctrine” was established, we’ve seen its sweeping impact on the rules and regulations that are constantly churned out by federal agencies.

The controversial transgender bathroom guidance recently issued by the Department of Education and Department of Justice followed a federal court decision in which the judges used the Chevron doctrine to defer to the agencies’ interpretation of Title IX, despite the fact that it defied the language and intent of the law passed by Congress. Before that, the “Chevron doctrine” was cited by the FCC to justify its controversial reclassification of broadband internet access service as a telecommunications service in its expansive “net neutrality” decision. Only a few weeks ago, a federal court decision to uphold the net neutrality rules relied on Chevron to defer to the FCC’s interpretation of the law – despite the fact that the FCC was relying on the 1934 Communications Act as the authority for its actions. And when the EPA used its interpretation of the Clean Air Act to justify its promulgation of the “Clean Power Plan,” its questionable reading of the law assumed that courts would provide Chevron deference to prevent proper judicial review of EPA’s actions.

In the case of these and countless other interpretations by the administrative state, the “Chevron doctrine” has allowed for critical changes in the law without enactment of legislation from Congress and without any say from the Judicial Branch – exhibiting the very “tyranny” that James Madison loathed. If this pattern is allowed to continue, our country will move even further away from the balance of powers that were intended to keep our government in sync with the will of the American people. As a strong constitutional conservative, I’ve teamed up with my colleagues in both chambers of Congress to introduce a solution: the Separation of Powers Restoration Act (SOPRA).

This critical measure, being voted on in the House of Representatives this week, reverses the 1984 Supreme Court decision that established the “Chevron doctrine,” placing the power to determine ambiguous laws back into the hands of the Judiciary. This would help stop future abuse of power by administrative agencies by preventing them from establishing regulations with the intent to leverage “Chevron doctrine” to implement them however they so choose, fully free from judicial review. Instead, agencies will be forced to adhere to the courts’ interpretation of the laws they implement – keeping them from “grading their own papers,” as they’re allowed under the “Chevron doctrine.”

As a member of Congress, it’s my job to ensure the federal government is working for the people, not the other way around. And I urge my colleagues to join me in stopping unelected bureaucrats from relying on the “Chevron doctrine” to push through their partisan agenda. After all, when the Constitution wins, so do the American people.

An abridged version of this article was originally published in The Hill.