House Bill Would Eliminate Chevron Deference

For more than 30 years, the bedrock of administrative law has been so-called Chevron deference – deference by the courts to an administrative agency’s reasonable interpretation of a statute when, subject to certain circumstances, that statute is ambiguous under Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, 467 U.S. 837 (1984).

On July 12, 2016, the U.S. House of Representatives passed the Separation of Powers Restoration Act of 2016, which would overturn Chevron and the cases that have built upon and shaped the scope of Chevron as well as other related doctrines such as deference to agency interpretations of its own regulations under Auer v. Robbins, 519 U.S. 452 (1997). The House vote – 240 to 171 – was largely along party lines.

The Separation of Powers Restoration Act would amend the Administrative Procedures Act to require de novo review of agency action. Specifically, under the House bill, 5 USC § 706 would be amended as follows:

(a) to To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.

A companion bill titled the Separation of Powers Restoration and Second Amendment Protection Act was introduced in the Senate. However, the Senate has not voted on the bill.

The White House has threatened a veto, stating in a Statement of Administrative Policy that the bill "would unnecessarily overrule decades of Supreme Court precedent, it is not in the public interest, and it would add needless complexity and delay to judicial review of regulatory actions." Statement of Administration Policy, June 22, 2016.

Because the Separation of Powers Restoration Act would fundamentally alter administrative jurisprudence if it were to become law, the bill should not be ignored.