« Drew Starling & Sean Nadel on "A Newer Originalism"
Michael Ramsey
| Main | Richard Primus: The Cost of Text
Michael Ramsey »


Vikram Amar on the Separation of Powers Restoration Act
Michael Ramsey

At Justia, Vikram Amar  Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2016”: A Sign of the Times.  From the introduction:

A few weeks ago, the U.S. House of Representatives, on a near party-line vote, passed a bill—“the Separation of Powers Restoration Act of 2016” [ed.: text here] —that would, among other things, undo a major Supreme Court ruling of three decades ago, Chevron U.S.A. v. Natural Resources Defense Council. A version of the bill is now before the Senate Judiciary Committee.

Congressional efforts by Republicans to overturn Chevron (and by Democrats to preserve it) are noteworthy not just because Chevron is a very significant Supreme Court case—perhaps the most important ruling that most folks in the country have never heard of—but also because this episode is yet another instance (like the Independent Counsel Act, presidential power to issue executive orders, and executive non-enforcement discretion) in which the political parties’ views about the proper constitutional roles of the three branches of the federal government seem to depend who occupies or is likely to occupy the White House for the foreseeable future.

But is it constitutional?  As described by Professor Amar, the Act "directs federal courts not to afford agencies interpretive deference, but instead tells courts to decide the meaning of all federal law de novo (that is, without any deference to other bodies’ interpretations), unless a federal statute specifically says otherwise with respect to implementation of that statute."  Can Congress tell courts what to consider in interpreting federal law?  Professor Amar's take: 

The question of what, if any, level of deference to give to agencies when they are interpreting federal statutes really is a question of statutory interpretation, which Congress should be able to control. This Supreme Court is often intent on not letting Congress tell it what to do or not do (and sometimes wrongly takes constitutional offense when Congress is simply trying to lay down a guide for interpreting its own statutes, as in Clinton v. New York), and some might suggest that Chevron saves courts time (by relieving them of what otherwise might be difficult choices between competing reasonable interpretations), but I don’t think any workload increase generated by the undoing of Chevron creates any arguable separation of powers violation. For these reasons, I would expect in this instance the Court to accept and follow Congress’s wishes.

I'm not sure it's that easy a question.  It seems more akin to a statute purporting to abolish precedent in statutory cases.  I think courts, perhaps rightly, might think that infringes on the judicial power.