At Wednesday's House Judiciary Committee markup hearing, lawmakers debated the Separation of Powers Restoration Act.
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00:00Mr. Tiffany votes aye.
00:19Mr. Mossey?
00:20Aye.
00:21Mr. Mossey votes aye.
00:22Clerk will report.
00:40Gentlelady from Wyoming?
00:41Yes.
00:42Ms. Hageman votes yes.
00:4314-12.
00:4414-12.
00:45Mr. Chairman, there are 14 ayes and 12 noes.
00:49The ayes have it and the bill is ordered to be reported favorably to the House.
00:52Members will have two days to submit views.
00:54Without objection, the bill will be reported as a single amendment in the nature of a substitute
00:57incorporating all adopted amendments, and staff is authorized to make technical and
01:02conforming changes.
01:07Pursuant to notice, I call up H.R. 1605, the Separation of Powers Restoration Act of 2025
01:14for purposes of markup, and move that the committee report it favorably to the House.
01:19The clerk will report the bill.
01:21H.R. 1605.
01:22Without objection, the bill will be considered as read and open for amendment at any point.
01:26The chair recognizes the gentleman from Wisconsin, Mr. Fitzgerald, for an opening statement.
01:30Thank you, Mr. Chairman.
01:31The Constitution deliberately separates the powers of the federal government in a system
01:36of checks and balances, Article 1, Section 1.
01:40That's all legislative power in Congress.
01:42While executive power belongs to the President and the judicial power rests with the courts,
01:47this foundational structure ensures that no single branch dominates the other, safeguarding
01:52individual liberty from government overreach.
01:56For decades, the executive branch has taken legislative power by issuing regulations that
02:01carry the force of law.
02:03In 1984, the Supreme Court ruled in Chevron that courts must defer to an agency's interpretation
02:09of an ambiguous statute, rather than exercising independent judgment to determine what Congress
02:15actually meant.
02:17The deference allowed unelected bureaucrats to wield immense legislative and judicial
02:22power and issue sweeping regulations with little accountability.
02:29In 2023 alone, unelected bureaucrats finalized over 3,000 rules.
02:33By contrast, during the same period, Congress passed less than 70 laws.
02:39This means the executive branch agencies impose more than 44 times as many mandates
02:45as the actual legislators.
02:48The consolidation of power within the executive branch directly contradicts our constitutional
02:53framework and harms American liberty.
02:55It is certainly not what our Founders intended.
02:59And the regulatory state is not just oppressive, it's costly.
03:02According to the Competitive Enterprise Institute, the total annual cost of the federal regulation
03:07is now $2.1 trillion, equivalent to over 7.5% of U.S. GDP.
03:16If members of this chamber imposed that kind of cost on taxpayers each year, we'd be voted
03:20out of office.
03:21Fortunately, the Supreme Court has finally restored the judiciary's constitutional role
03:26in interpreting the law.
03:28In a 2024 case known as Loper-Bright, the Court explicitly overturned Chevron.
03:35The Supreme Court held that under the Administrative Procedure Act, courts must exercise independent
03:40judgment while reviewing whether an agency has acted within its statutory authority.
03:44As Chief Justice Roberts, quoting Alexander Hamilton's Federalist No. 78, wrote in the
03:50majority opinion, the framers, quote, envisioned that the final interpretation of the laws
03:57would be proper and peculiar providence of the courts.
04:03He went on to note that the Administrative Procedure Act, quote, incorporates a traditional
04:08understanding of the judicial function under which courts must exercise independent judgment
04:13in determining the meaning of statutory provisions, unquote.
04:16In other words, the Supreme Court has now recognized what we in Congress have long understood.
04:21Chevron was an abdication of judicial responsibility that allowed agencies to run roughshod over
04:27both the Constitution and the will of the people's representatives.
04:33While Loper-Bright is a major step in the right direction, it does not resolve all questions
04:37of judicial deference.
04:39The Court left open the question of whether other deference doctrines should be overturned,
04:45and courts may very well find ways to invent new deference doctrines if we do not stop
04:51them from doing so.
04:53That is why it remains imperative that Congress act to solidify the judiciary's duty to review
04:59agency action and ensure that the Executive Branch cannot continue to legislate outside
05:05clear congressional direction.
05:07That is why we must pass H.R. 1605.
05:10Separation of Powers Restoration Act would formally codify the Supreme Court's decision
05:14in Loper-Bright and invalidate any other precedents that require courts to defer to agency positions.
05:22This will ensure that courts independently consider what Congress has said through its
05:26statutes rather than putting a thumb on the scale in favor of the federal agencies.
05:31By requiring courts to apply de novo review, this legislation would ensure that judges
05:37exercise their constitutional duty to interpret the law independently, rather than deferring
05:43to the very agencies whose authority they are supposed to scrutinize.
05:47I urge my colleagues to support this critical legislation and restore the balance of the
05:51power demanded by our Constitution.
05:55And I yield back.
05:56The gentleman yields back.
05:57The Ranking Member is now recognized for an opening statement.
06:02Thank you very much, Mr. Chairman.
06:06Administrative rules take on different political meanings at different points in history, depending
06:11on who's in office, who has more power in the courts, and the history of Chevron and
06:21Loper-Bright is fascinating, especially in light of Mr. Fitzgerald's very interesting
06:29remarks there.
06:31I'm old enough now to remember when Chevron was decided.
06:34I was in law school at the time in 1984.
06:38And at that point, when it came down, Chevron was considered the conservatives' doctrine.
06:46It's what Ronald Reagan wanted.
06:48It's what the conservative judges on the Rehnquist Court and the Berger Court had been
06:54fighting for.
06:56The liberals basically were saying we've got great regulations and rules that have been
07:00put in since the Great Society on clean air and clean water, and we don't need a new doctrine.
07:07But the conservatives on the court introduced the Chevron doctrine because the liberals
07:13wanted to stick with a particular regulation which determined that the word point in pollution
07:22had a fixed meaning, whereas the conservatives were saying, no, the EPA, now under Reagan
07:28appointees' control, can rearrange the meaning of the word point and have point applied to
07:35the entire factory rather than one particular point of discharge.
07:40So it was the conservatives then who advocated the Chevron doctrine and embraced it and were
07:46cheering the development of this great new flexibility notion because it allowed the
07:52Reagan appointees at the agencies and commissions to reverse rulings that had been in place
07:58for a long time.
08:00All the liberal environmental and labor lawyers were going to court saying, no, this is what
08:04the statute has meant or the way it's been interpreted for 20, 30 years.
08:08But now the conservative court in the hands of the Chevron doctrine said, no, it's a flexible
08:15test and if there's inscrutability or indeterminacy in the language, then we're going to defer
08:21to the agency's own interpretation.
08:24So I was always very skeptical of the Chevron notion for the reason that the Supreme Court
08:35enunciated in the Loper-Bright decision, which is that it's up to the courts to say
08:40what the law is.
08:41And that goes back to Marbury v. Madison in 1803.
08:44It's emphatically the province and the duty of the judicial department to say what the
08:49law is.
08:50And the agency's role is to be part of the implementation process, but any final authoritative
08:58construction of the meaning of the statutory language must rest with the judiciary.
09:02So times change, of course.
09:04So now we're in a period where the conservatives hate the Chevron doctrine and the liberals
09:13who had originally denounced it now, you know, have been standing with it, all of which goes
09:18to show that a neutral rule can take on a very different meaning depending on who's
09:24occupying this or that office.
09:26I was about to call you, Mr. Chairman, to say, shouldn't we go ahead and say what the
09:31vote is?
09:32Everybody has voted.
09:33We're waiting for more people.
09:35But the rule is it's up to the chair to decide when to close the balloting.
09:39That's going to help you guys sometimes when you're sitting in that chair, and maybe if
09:43I ever get to sit in that chair, it would help us, right?
09:46So you don't know which way an administrative rule is going to cut.
09:50Given that, I've always felt you should try to decide it on the merits as much as possible
09:56what you think it is.
09:57And I've always felt that the position just enunciated by the Supreme Court is the right
10:02decision in terms of interpreting what the law is.
10:05So I like the Loper-Bright decision, and I like a lot of what's in this bill.
10:10However, I've been working with the chairman to see if we can come around.
10:15The part of the bill that I don't like deals with the statute of limitations.
10:21And so the compromise that we came close to, but in the final analysis it didn't work,
10:34it would have scrambled certainly partisan and doctrinal lines.
10:37The compromise would have codified the new post-Chevron world, making clear that courts
10:42should review agency actions de novo and exercise their own independent judgment in deciding
10:47whether an agency has in fact acted within statutory authority.
10:51It also would have enshrined certain guardrails, explicitly instructing courts to continue
10:55applying stare decisis, as well as continuing to give respect to executive branch interpretations,
11:01particularly when based on specialized experience.
11:04These are the so-called Skidmore factors.
11:08But what's more, the compromise would have overturned the Supreme Court's ruling in the
11:12corner post decision, which broke with decades of precedent and would have made clear that
11:17facial challenges to rules and agency actions must be made within eight years of the promulgation
11:23of the rule.
11:24This language built on my colleague Mr. Nadler's Corner Post Reversal Act would have avoided
11:29the free-for-all that exists when federal rules are in a perpetual state of limbo where
11:34litigants can challenge them even if they've been in place for 20 years or 30 years or
11:4040 years.
11:41There's no stability for anybody in that, and that just undermines rule of law values.
11:45So unfortunately at the 11th hour, I believe some of our GOP colleagues walked away from
11:53what I was hoping would be a big compromise that we could all live with.
11:58In other words, Loper-Bright, which is the law of the land right now, would be codified,
12:02but we would not allow rules to be perpetually challenged, which would introduce a lot of
12:08instability into the law.
12:10So that bipartisan deal collapsed, and my preference would have been today to vote on
12:20that bill that we were discussing, and to the extent that my colleagues are intent on
12:27putting up this other version of the bill which allows for perpetual challenge, I cannot
12:34go along with that and I would have to vote against that.
12:36But if it passes the committee, I do hope, Mr. Chairman, that you know I'm sincere about
12:42this.
12:43I hope we can continue to work together to improve the bill and find real common ground
12:46as it moves through the legislative process.
12:49It's a good opportunity for us to act in the true spirit of bipartisan compromise and common
12:54sense, and I think it would demonstrably improve the bill because, yeah, you can always bring
13:02a constitutional challenge, but I don't think an arbitrary capricious challenge, an ultra-virus
13:08challenge should last forever.
13:10I don't think people should be bringing those 20 or 30 or 40 years later.
13:13So I hope we can continue to work on it, but otherwise I'm not quite there yet, and thank
13:18you for your patience and I yield back to you.
13:20Gentleman yields back.
13:22Chair recognizes the gentleman from Wisconsin to offer an amendment in the nature of a substitute.
13:27Thank you, Mr. Chairman.
13:28I do have an amendment at the desk.
13:31Clerk will report.
13:33Objection.
13:34The amendment in the nature of a substitute will be considered as read and shall be considered
13:37as base text for the purpose of amendment.
13:39Chair recognizes the gentleman from Wisconsin to explain the amendment.
13:41Yeah, this amendment adds interpretive rules, general statements of policy, and all other
13:46agency guidance documents to the scope of the bill.
13:49These were included in the version of the bill that passed the House last Congress,
13:53and I would urge support for this amendment, and I yield back.
13:58Gentleman yields back.
13:59The chair would claim some time for a question to the sponsor of the bill.
14:04Is there anything in the current legislation that talks about statute of limitations?
14:09Chairman, there is not, which when the ranking member discussed this, and I think the negotiations
14:19that were happening behind the scenes, I mean, that would lend me to believe we, why not
14:28pass this bill today?
14:30And then if we want to come back and talk about a statute of limitations later, that
14:34seems like it might be more productive.
14:37And that's where I'm inclined to go, and we have had discussions with the ranking member
14:41and our staff and their staff, and we'll continue to do that and see if we can find some common
14:44ground.
14:45But there's nothing in this legislation that addresses or deals with the statute of limitations.
14:49Who seeks recognition?
14:50I yield back.
14:51The gentlelady from Washington is recognized.
14:53Thank you, Mr. Chairman.
14:55I move to strike the last word.
14:56I think I was recognized.
14:59You know, I just want to agree with our brilliant ranking member that he's pointing out the
15:03contradictions that occur when one party tries to move and make a situation work for them
15:13despite what the merits of the situation might be, and I think that that is a very real point.
15:19I do think that this particular bill has tremendous problems.
15:24I'm going to vote no on it.
15:25I think that if we are to think about the central issue here, it is the question of
15:31where expertise should lie.
15:34And at the end of the day, I think part of the reason that this administration has been
15:41focusing so intently on destroying agency authority, getting rid of expertise within
15:49the agencies and replacing that, either completely eliminating a department illegally that was
15:54established by Congress, or eliminating expertise that has been critical to making these decisions
16:01over these years, is because they know that those agencies are actually accountable to
16:06Congress.
16:07So when we write legislation and we articulate what we intend to be done, it is very difficult,
16:12I think, particularly in technical areas that cross a number of different sectors, for us
16:18to give full and complete determination of exactly what that looks like.
16:23And so we have seen Chevron deference in the 40 years that it's been the law of the land
16:32require courts to give expert agencies the chance first to implement ambiguous laws,
16:39and that has led to an enactment of many important policies.
16:42And, you know, I'll just name a few.
16:43How to limit greenhouse gas emissions under the Clean Air Act.
16:47Which drugs and medical devices should be covered by Medicare and Medicaid.
16:51Or how labor unions across the country hold free and fair elections without the interference
16:56of greedy employers.
16:57None of those things would have been possible without Chevron.
17:03And you could probably say that of the decade before as well, so I don't dispute that point
17:08at all.
17:09But I do think the central question is, who decides these important policies?
17:14And when Congress makes a determination, when we enact a law, that we do delegate some responsibility
17:22to the agencies.
17:23And I think that judges have another very particular set of expertise, a very particular
17:32range of expertise that they offer, which is critically important.
17:36And they, before the Supreme Court ruled recently, they had sort of the end analysis
17:45of whether something was appropriate or not.
17:49But they didn't have to have the detailed technical expertise that we have relied on
17:53agencies to have.
17:55And so I think it is very important that experts decide on subject matter as much as possible
18:04and that they are accountable to Congress.
18:07Because if you take that away, then you have a judiciary who is not accountable to Congress,
18:11and they might interpret exactly what they think the law should be based on a whole range
18:16of things that we may or may not agree with.
18:20And I think we've got to be very careful about, A, codifying the Supreme Court's – it is
18:26the law of the land, I'm not arguing with that – but codifying it in hopes that perhaps
18:32this returns us to a period of the 40 years prior to Chevron deference.
18:40Because I think so many things have changed.
18:41And I also think at the end of the day, we should be looking at this on the merits of
18:45the situation, not by whether the current administration is taking away the ability
18:51of agencies to do the things that they are supposed to do.
18:58Because frankly, an administration that wants to destroy the agencies and the separation
19:03of powers between Congress and the executive branch and seeks to essentially eliminate
19:09the authorities of Congress under Article I is also the same administration that might
19:15do that with the judiciary.
19:17For example, might ignore the unanimous Supreme Court decision to facilitate the return of
19:24Quilmar Abrego-Garcia.
19:26I mean, there's all kinds of things that can be done to eliminate the separation of powers.
19:31And I think we should be looking at where should expertise lie.
19:34In my mind, anyway, that is the central question of this point.
19:38And that is why I wrote the Stop Corporate Capture bill, because my bill offers a comprehensive
19:46blueprint for the kind of modern, people-centered regulatory system that the public expects
19:51and deserves.
19:52And I think it would level the playing field for all Americans to have their voices heard
19:57on these critical regulatory decisions.
19:59It would promote scientific integrity, public accountability, it would codify Chevron deference,
20:05and it would restore our government's ability to deliver results.
20:08So that is still where I am.
20:09And I think if we're going to have this conversation, I just hope that we can do it as a group and
20:17not just change our position.
20:18The gentlelady's time has expired.
20:20I yield back.
20:21Is there further discussion?
20:22I move to second the bill.
20:24Mr. Onder.
20:25Yeah, thank you, Mr. Chairman.
20:30Well I really commend Mr. Fitzgerald for bringing forth this bill.
20:34I really love this bill.
20:35In fact, I like it so much that on the campaign trail last year, I talked repeatedly about
20:42codifying Loeb or Bright, and for once and for all making it clear in statute that the
20:48Chevron doctrine is no longer the law of the land.
20:53You know, the four decades since Chevron have witnessed an enormous growth in the power
21:00of the regulatory state and the size and cost of the regulatory state.
21:05Unaccountable bureaucrats, so-called experts, have subverted, in many cases, the will of
21:11the people and vastly expanded the power of the executive branch beyond what was anticipated
21:17by either our founders or by the drafters of the statute that those unaccountable bureaucrats
21:24allegedly were interpreting.
21:27Not only that, there's been an enormous power grab by these bureaucrats of the Article I
21:32powers of Congress, of the power of judicial review that is so clear in our Constitution,
21:39and finally, the power of individual citizens and businesses litigants to go to court to
21:45defend their individual and property rights against the aggressive and inappropriate use
21:51of power by executive branch bureaucrats.
21:55So why do we still need this bill?
21:57We need this bill, as Representative Fitzgerald said, to make sure that other doctrines, other
22:03deference doctrines, don't continue to be abused by bureaucrats.
22:08And number two, we do not know what the composition of the court will be, so it is time for Congress
22:13to make very clear that the Chevron Doctrine no longer stands and that so-called experts
22:19cannot rule our lives and the lives of businesses throughout this country.
22:26I thank the Representative for this bill.
22:29The gentleman yields back.
22:30I yield back.
22:31Is there further discussion?
22:32Mr. Nadler.
22:33Thank you, Mr. Chairman.
22:34I move to strike the last word.
22:35The gentleman is recognized.
22:36Mr. Chairman, when I saw that we were marking up a bill called the Separation of Powers
22:44Restoration Act, I wondered if that meant that our Republican colleagues were finally
22:48ready to assert congressional authority and stand up to President Trump's unprecedented
22:54power grabs.
22:56On issue after issue, the Trump administration has thumbed its nose at Congress and claimed
23:00practically unlimited power for the executive branch.
23:03And what has been the response of my Republican colleagues?
23:07Crickets.
23:08So I was heartened to see that we might consider a bill to finally reassert appropriate checks
23:12and balances and to restore the separation of powers that our Constitution has enshrined.
23:18But sadly, this bill would do nothing to respond to the crisis at hand.
23:22Instead, it would double down on the Supreme Court decision in Loper-Bright, enabling courts
23:27to ignore agency expertise and make it easier to overturn lifesaving regulations.
23:32I appreciate Ranking Member Raskin's efforts to improve the bill, in particular by adding
23:37language from my legislation to overturn the Supreme Court's recent decision in Corner
23:42Post, which eliminated the statute of limitations on challenging regulations under the Administrative
23:48Procedure Act.
23:49I am disappointed that the majority would not agree to his offers.
23:54Without that language, this bill would allow for wholesale rollbacks of standing agency
23:59rules going back decades.
24:01This could lead to chaos, endless litigation, uncertainty for businesses, and ultimately
24:07a government that cannot effectively govern.
24:10Therefore, unless that language is placed in the bill at some point in the legislative
24:17process that hasn't been yet, I must oppose the bill.
24:20I yield back.
24:21Could the gentleman yield?
24:22Oh, I'm sorry.
24:23Oh, I'll yield.
24:24Yeah.
24:26I wanted to respond to the last two comments, and really the last three.
24:33The whole point that the gentlelady from Washington made so powerfully about expertise.
24:42The problem, I think, is that expertise is in the eye of the beholder.
24:46I was going to ask the gentleman who I think had to leave the room.
24:51He was saying, you know, we should not be deferring to so-called experts.
24:55We should be enforcing the law as it is.
24:58So here's an interesting case that has come up in this new administration, and this is
25:01what I mean about how, you know, there's a do-si-do going on.
25:05The roles switch completely.
25:07So the new secretary of HHS, Secretary Kennedy, has said that the Department of Health and
25:14Human Services is not bound by the Administrative Procedures Act and is not going to follow
25:20it.
25:21Now, I suppose he would be the expert here.
25:24I mean, it's hard to identify his particular views with expertise, but in any event, he's
25:30saying as the secretary of HHS, he's not going to be bound by the Administrative Procedures
25:36Act.
25:37Well, that's an outrageous violation of the rule of law.
25:39I think we want a court to be reviewing that.
25:43And as the various cabinet members decide they want to go off in their own direction
25:46and disown the whole body of regulations that have grown up in their particular agency or
25:53department, I think that we are going to want the courts enforcing that.
25:57Now, unfortunately, President Trump himself has also said he's not bound by the Administrative
26:04Procedures Act.
26:05And I hope that all of us would agree that can't be right, because the Administrative
26:10Procedures Act is the way that we actually conduct the promulgation of regulations through
26:16the notice and comment period and through, you know, all of the steps that are built
26:22in there.
26:23So, you know, my problem, my only hang up with this bill is the Supreme Court's decision
26:31in the Corner Post case determined that the statute of limitations runs from the point
26:38of alleged harm to a litigant rather than from the point at which the regulation was
26:44adopted.
26:45And I think that doesn't give anybody, especially the business community, which has complained
26:50about it, but also workers, environmental groups, it doesn't give anybody any predictability
26:56or order in the system.
26:58So personally, I would like to add what's in this bill with a language that gets us
27:06away from that Corner Post approach and makes clear that we can build a lot more definiteness
27:13into the system.
27:14I thank the gentleman for yielding.
27:15I yield back.
27:16The gentleman yields back for further discussion.
27:19I move to strike the last word.
27:22Gentleman's recognized under the five-minute rule.
27:25I noticed my colleague on the other side made the point that this bill is able to attack
27:37a problem of bureaucrats usurping Article I power.
27:44And I took note of it because I don't hear my Republican colleagues talking about Article
27:52I power very much anymore, as Donald Trump and this administration have completely usurped
28:00all of Congress's power, the power of the purse, the power to use executive orders to
28:08overrule legislation, to cancel effectively agencies that Congress created.
28:21But somehow you found Article I power when it comes to, quote, unelected bureaucrats.
28:29Now I was a clerk for a district court judge in San Francisco who had a lot of patent cases.
28:41And really they're so complicated and so technical that he might as well have thrown a dart at
28:49a dartboard to see which way it would come out.
28:54It was just beyond his expertise, which he would have readily admitted.
29:02And so the notion that judges somehow have more expertise about the intricacies of implementing
29:13complex laws, whether administrative laws especially, whether they be environmental
29:19or financial or in some other ways, is absurd on its face.
29:27And it may be politically expedient for my Republican colleagues to want to put this
29:34power in the court's hands, but it will make our system much, much less effective.
29:45And I'm frankly sick and tired of hearing the term unelected bureaucrat as if the patriotic
29:53men and women of our federal government who are working anonymously for the United States
30:02to execute our laws, to protect our borders, to engage in diplomacy abroad are somehow
30:11because they're not elected to office any less competent or expert than somebody who,
30:21I guess, who wins an election is preposterous.
30:27But I would note that if your concern is Article I power, I might encourage you all to speak
30:35up against this Department of Justice charging with criminal charges one of your colleagues
30:46for doing her job, her constitutional mandated job.
30:51Now, I know many of you think you take an oath to Donald Trump, but in reality, the
30:57oath is to the Constitution.
31:00And you ought to be very, very careful about continuing to stay quiet as this president
31:06ravages and destroys our democracy and completely undermines and devastates your Article I power.
31:17So if you're going to find God and recognize that there's Article I power when it relates
31:23to administrative law, I hope you will also find Article I power to stand up to a rogue
31:32authoritarian administration rather than continuing to sit quietly as your own power is taken
31:42away and your own colleagues are being arrested for what is so obviously, obviously a politicized,
31:52pumped up bogus charge.
31:56And I...
31:57Well, would the gentleman just yield for a friendly but probing question, I hope, okay.
32:03So this is on the point of expertise.
32:08You have a lot of courtroom experience.
32:10Say there's a case about whether someone was driving DUI.
32:15There's no doubt that the chemist who knows about body chemistry and alcohol is going
32:22to know more than members of the jury.
32:24But we still leave the ultimate determination to the jury to use their common sense, but
32:29they're allowed to take in all of the expert testimony.
32:32So why is it that we would say we want somebody who has expertise to be making a decision
32:38on an ambiguous or inscrutable part of a statute rather than a court whose job it is
32:45to interpret the meaning of the law?
32:48Well, it's clear the courts have to have a role, and I don't think any of us are saying
32:53that the courts shouldn't have a role.
32:54And that's why I wish we would work in a more bipartisan way to rewrite administrative law
33:01after Chevron, because this is a very, very important issue that will have many, many
33:06follow-on effects.
33:09But for a judge or a jury or anyone who's not a scientific expert or a specific expert
33:15in a field, to learn an entire field without the benefit of those who are experts fundamentally
33:24undermines the efficacy of our laws and the implementation of our laws.
33:30So why we would shun expertise is beyond me.
33:34And I yield back.
33:35The gentleman yields back.
33:40Question is on —
33:41Yeah, move to strike the last word.
33:47Just to complete that point, Mr. Chairman, and I appreciate it, look, this is in defense
33:52of the Loper-Bright decision, okay?
33:56Loper-Bright did not negate or nullify or demolish the role of administrative expertise
34:06in the agencies or departments.
34:07All it said — in fact, it reaffirmed that if there really is a clear delegation from
34:14Congress to an agency, the agency can do it.
34:17But where it's not clear, then, as a matter of law, Loper-Bright says the courts have
34:24got to be determining that rather than the unelected bureaucrat, whether that unelected
34:29bureaucrat is Joe Califano or Robert F. Kennedy, Jr.
34:33That is, whoever is there doesn't get to define what the law means, but they do get to — and
34:41they do get to execute the meaning of the statute.
34:46So that's why, to me, the Loper-Bright approach seems compelling, and we should work with
34:53it.
34:54I just hope that my Republican colleagues, who I'm siding with here, understand the import
34:59of the position they're taking.
35:01First of all, the last bill that we just discussed is utterly ridiculous from the standpoint
35:08of Loper-Bright.
35:10It vests all power in an unelected bureaucrat.
35:13The idea was you have the regulatory notice and comment period, and then everybody for
35:17some reason goes to the general counsel of the Small Business Administration, and that
35:22person gets to decide, as if that person is more expert than all the other administrative
35:28experts and better at interpreting the law than the courts.
35:32So that bill is precisely what I think is being condemned by Loper-Bright.
35:39But I also want my colleagues just to understand what's going to be happening over the next
35:44three and a half years is that people like Secretary Kennedy are going to be coming out
35:49with their rules and their regulations, and the courts are not going to be deferring to
35:55them, and they shouldn't be deferring to them if they operate in a realm of ambiguity within
36:01the statute.
36:02And so I just want everybody to be clear, you're committing yourselves with this vote
36:07to that position, that the courts should not be deferring to Attorney General Bondi with
36:14respect to a DOJ regulation or Secretary Kennedy with respect to an HHS regulation.
36:21It's going to be up to the courts, and I know a lot of you have been talking about impeaching
36:24federal judges because you don't like what they've been doing, and you haven't really
36:28bothered to say what's wrong with the legal analysis that is exercising you, but you still
36:34want them impeached.
36:35And you're moving in a very different direction now, and it's the direction I believe in,
36:39which is that the courts are the place where we go to find out what the law means.
36:44Like Marbury v. Madison said in 1803, it's emphatically the province and the duty of
36:49the Judicial Department to say what the law is.
36:51So thank you, Mr. Chairman.
36:52I just wanted to add that point.
36:54I thank the ranking member.
36:57The gentlelady from Wisconsin, Wyoming, is recognized.
37:00I think we need to understand what Loper Bright did and what Chevron did, and we can do it
37:05by using some real-time examples.
37:08What the point of Chevron was was if there was an alleged ambiguity in a statutory – in
37:14a bill, then they would defer to the agency's interpretation of what that statute meant
37:21rather than going through the process of determining what the law is, which had been basically
37:27within their purview up until 1984.
37:31And so we got such incredibly – incredible absurdities.
37:35For example, let's use the Clean Water Act.
37:38The Clean Water Act gives to the EPA jurisdiction over navigable waters of the United States.
37:45That is a specific term that throughout history we've known what it meant.
37:49But then all of a sudden the EPA started interpreting navigable water of the United States to include
37:56mud puddles and irrigation ditches and water in burrow pits along highways and riffles
38:05of water in the sand out in the desert and pretty much anything that you could think
38:11of that might not be in a plastic bottle like this.
38:15So the EPA taking the phrase navigable water of the United States, which 90 percent of
38:19the people in this room would be able to define what a navigable water was, but apparently
38:24the experts, the EPA, the people who know this, the people who are the experts that
38:28courts should defer to could not figure out that a man-made irrigation ditch is not a
38:34navigable water of the United States.
38:36So what Chevron did is it required the courts to defer to an absurd interpretation, and
38:44this is just one example of that.
38:47What Loper Bright did, that decision, said it is up to the courts to determine what is
38:52meant by, quote, a navigable water of the United States.
38:55Now that doesn't mean that the agencies don't weigh in.
38:58The agencies still file their briefs.
39:01They still make their arguments.
39:02They still have the assistant U.S. attorneys appear before them and say a navigable water
39:09of the United States ought to be interpreted this way or it ought to be interpreted this
39:12way.
39:13But what it also does is it made it so that everyday people could also go into that court
39:19and make their presentation and their arguments as to what a navigable water of the United
39:24States meant and go back to the history of the Clean Water Act and why Congress never
39:30intended to include irrigation ditches, irrigation canals, borrow pits, mud puddles.
39:37The point of the Clean Water Act was for the federal government or the EPA to take jurisdiction
39:42over things like the Mississippi River, the Missouri River, the Colorado River, the Green
39:47River.
39:48But it sure wasn't to take jurisdiction over an irrigation ditch.
39:52It sure wasn't to – that was to be left to the states.
39:56Regulation of those kinds of water bodies are left to the states.
39:59Yet because of Chevron, our courts allowed the EPA to take jurisdiction over things that
40:05Congress never, ever intended.
40:08The Loper-Bright decision has correctly righted that wrong.
40:14And it doesn't mean that the agencies can't still make their arguments, can't still come
40:19in and bring in their expertise, can't still bring their expert witnesses to testify as
40:24to what these various terms should mean, but ultimately it is for the court to decide.
40:30And in light of the fact that we have had some bad decisions such as the Chevron decision
40:34come out, it is time for Congress to act and say it isn't up to these so-called unelected
40:40bureaucrats – because that's exactly what they are – to be making the decisions about
40:45what the law says.
40:47That is for the courts to make that determination.
40:50That's all that this bill does is it just further clarifies the authority and the power
40:57and the jurisdiction of all of these various actors in all of these various lawsuits.
41:03With that I yield.
41:04Would the gentlelady yield for an affirming comment?
41:07Sure.
41:10I agree with you.
41:11And in fact, I think one of the problems with Chevron and our regulatory scheme is that
41:19every four years regulations can swing wildly, which creates very unsettled expectations
41:28and is, I think, very difficult for the business community to plan around.
41:37And what I would suggest, if we can continue to discuss this, is that we figure out some
41:42way to establish that rules that are promulgated and affirmed by the courts cannot then just
41:51be changed every four years.
41:54And if there's some sort of a rebuttable presumption that a rule that's been confirmed – that's
42:00been promulgated and confirmed by the courts – would remain in a new administration,
42:07I think our entire regulatory scheme would be much better off and many, many businesses
42:14and other entities would be grateful for that.
42:21Gentlelady yields.
42:22Gentlelady yields back.
42:23Who seeks recognition?
42:25The question is on adoption of the amendment in the nature of a substitute.
42:29This will be followed immediately by a vote on reporting the bill.
42:32All those in favor say aye.
42:33Aye.
42:34Those opposed, no.
42:35No.
42:36In the opinion of the Chair, the ayes have it and the amendment in the nature of a substitute
42:39is adopted.
42:40The question is on favorably reporting the bill as amended.
42:41All those in favor say aye.
42:43Aye.
42:44Those opposed, no.
42:45No.
42:46The ayes have it and the bill is ordered, reported favorably to the House.
42:50The gentleman from New York requests a roll call.
42:52The clerk will call the roll.
42:53Mr. Jordan.
42:54Yes.
42:55Mr. Jordan votes yes.
42:56Mr. Issa.
42:57Mr. Biggs.
42:58Mr. Biggs votes aye.
43:00Mr. McClintock.
43:01Mr. McClintock votes aye.
43:03Mr. Tiffany.
43:04Mr. Massey.
43:05Yes.
43:07Mr. Massey votes yes.
43:08Mr. Roy.
43:10Mr. Fitzgerald.
43:11Aye.
43:13Mr. Fitzgerald votes aye.
43:15Mr. Kline.
43:16Mr. Gooden.
43:17Mr. Van Drew.
43:18Yes.
43:19Mr. Van Drew votes yes.
43:20Mr. Nels.
43:21Mr. Nels votes yes.
43:22Mr. Moore.
43:23Mr. Kiley.
43:25Mr. Kiley votes aye.
43:26Ms. Hageman.
43:27Ms. Hageman votes aye.
43:29Ms. Lee.
43:31Mr. Hunt.
43:32Mr. Frey.
43:34Mr. Grothman.
43:36Mr. Knott.
43:37Mr. Knott votes aye.
43:39Mr. Harris.
43:40Mr. Harris votes aye.
43:41Mr. Onder.
43:43Mr. Schmidt.
43:44Mr. Schmidt votes aye.
43:45Mr. Gill.
43:47Mr. Baumgartner.
43:49Mr. Raskin.
43:53Mr. Raskin votes no.
43:55Mr. Nadler.
43:56Mr. Nadler votes no.
43:57Ms. Lofgren.
43:58Ms. Lofgren votes no.
44:00Mr. Cohen.
44:01Mr. Cohen votes no.
44:02Mr. Johnson.
44:03Mr. Johnson votes no.
44:05Mr. Swalwell.
44:07Mr. Liu.
44:08Ms. Jayapal.
44:10Ms. Jayapal votes no.
44:11Mr. Correa.
44:13Mr. Correa votes no.
44:14Ms. Scanlon.
44:16Mr. Neguse.
44:17Ms. Mcbeth.
44:19Ms. Ross.
44:20Ms. Ross votes no.
44:21Ms. Ballant.
44:22Ms. Ballant votes no.
44:23Mr. Garcia.
44:25Mr. Garcia votes no.
44:26Ms. Camlager-Dove.
44:28Mr. Moskowitz.
44:30Mr. Goldman.
44:31No.
44:32Mr. Goldman votes no.
44:33Ms. Crockett.
44:33No.
44:34Ms. Crockett votes no.
44:38Mr. Klein votes aye.
44:41Mr. Moore votes aye.
44:52Mr. Issa, you're not recorded.
44:54Mr. Issa votes aye.
45:13Clerk will report.
45:15Mr. Chairman, there are 15 ayes and 12 noes.
45:17The ayes have it.
45:18And the bill is ordered to be reported favorably
45:20to the House.
45:20Members will have two days to submit views.
45:23Without objection, the bill will be reported
45:25as a single amendment in the nature of a substitute,
45:27incorporating all adopted amendments.
45:28And staff is authorized to make technical
45:30and conforming changes.
45:43Pursuant to notice, I call up HR.