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By Kyle Daly
Nov. 14 — Illinois Republican Rep. John Shimkus is promising to rein in the power of federal agencies if he becomes the next chairman of the influential House Energy and Commerce Committee, though it’s far from clear just how easy his anticipated approach would be to accomplish.
In a Nov. 13 letter to fellow House GOP lawmakers obtained by Bloomberg BNA, Shimkus said he would work to build “the case against the Chevron Deference,” a legal doctrine that grants broad powers to agencies to interpret statutes. “Our success in this area will restore Congress as the sole lawmaking apparatus of the federal government,” Shimkus said. It may be a heavy lift, however, for Shimkus or anyone else to actually eliminate Chevron deference.
Shimkus is vying against Rep. Greg Walden (R-Ore.), who chairs the committee’s Communications and Technology Subcommittee, for leadership of the full committee in the next Congress. Shimkus has served on the committee for 20 years. Walden is behind Shimkus in seniority but is a strong contender for the gavel, thanks to his position as chairman of the National Republican Congressional Committee. The NRCC in a Nov. 10 blog post called Walden “relentless” in raising more than $4 million for House Republicans during the 2016 campaign cycle.
Rep. Joe Barton (R-Texas) also may be seeking the committee gavel, but he would face an uphill fight. House rules limit committee leadership to six years, counting time served as both chairman and ranking member, and exceptions are rare. Barton was already the top Energy and Commerce Republican from 2004 to 2010.
Shimkus intends to discuss ways to assert clearer congressional checks on executive agencies as he continues to make his case for the chairmanship to fellow Republicans and the GOP Steering Committee, Shimkus spokesman Jordan Haverly told Bloomberg BNA. The steering committee makes leadership recommendations for the party conference to confirm. Shimkus’s pitch will center on the effect that court decisions have had, or could have in the future, on policy areas under Energy and Commerce jurisdiction, Haverly said.
Even if Shimkus doesn’t get the Energy and Commerce chairmanship, there may be a renewed appetite in Congress to defang the Chevron doctrine, which has underpinned court decisions like the one upholding the Federal Communications Commission’s 2015 net neutrality rules ( U.S. Telecom Assoc. v. FCC , D.C. Cir., No. 15-01063, decision rendered 6/14/16 ). The doctrine dates back to a 1984 U.S. Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., establishing federal agencies’ power to interpret ambiguous statutes and then use those interpretations to craft new rules and regulations.
An attempt to revive the Separation of Powers Restoration Act (H.R. 4768) is a likely starting point for taking on Chevron in the next Congress. That 2016 bill passed the House in July on a 240-171 vote that fell almost entirely along party lines (Minnesota Rep. Collin Peterson was the sole Democrat to vote in favor of the bill). The Senate has yet to take action on the measure.
The bill would tweak some language from the Administrative Procedure Act to declare that federal courts must, when reviewing agency actions, decide de novo—meaning, in the context of judicial review, without relying on an agency’s interpretation of a statute but rather the deciding judges’ own interpretation—all questions raised by a legal challenge. That bill, or another like it, would be the simplest and most direct way for Congress to effectively override Chevron deference, professors Daniel A. Farber of University of California, Berkeley law school and Catherine M. Sharkey of NYU law school, both told Bloomberg BNA.
Yet in spite of its earlier support in the House from the party that will control both chambers of Congress and the White House in January, a proposal to kill the doctrine may struggle to get sufficient support to advance. Even if Senate Democrats didn’t filibuster any such attempt, it would be “extremely surprising” for Republicans to push through legislation like the Separation of Powers Restoration Act, Aaron Saiger, a professor at Fordham University’s School of Law, told Bloomberg BNA. Doing so could meet GOP goals of enabling deregulation and potentially speeding up expected Trump administration efforts to reverse Obama administration actions. But it would also make it virtually “impossible” for Congress to write legislation that avoids statutory ambiguity but also anticipates future issues that will confront federal agencies, Saiger said.
Tossing out Chevron would also theoretically transfer at least some degree of authority in interpreting statutes from soon-to-be Republican-controlled executive agencies to the federal court system, which is majority Democratic after eight years of judicial appointments by a Democratic president. Farber and Saiger were skeptical President-elect Donald Trump will want to give Democratic-appointed judges more power than his own executive appointees.
[With assistance from Lydia Beyoud.]
To contact the reporter on this story: Kyle Daly in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Keith Perine at email@example.com
Shimkus’ document is available at: http://src.bna.com/j3rThe NRCC blog post is available at: http://src.bna.com/j34
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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