Federal regulations today impose a crushing burden of more than $1.88 trillion on our economy. That’s roughly $15,000 per household and more than the entire country’s corporate and individual income tax burden combined. Excessive and often unnecessary rules imposed by federal bureaucrats strain family budgets and create conditions where businesses—especially small businesses without large compliance teams—struggle to create jobs.
This red tape churned out of Washington represents more than a set of negative economic statistics; it constitutes a growing threat to our freedoms. Unelected bureaucrats attempt to regulate seemingly every aspect of the economy and our day-to-day lives. These dictates of what some describe as the "nanny state" range from the miniscule—like the type of light bulbs we can buy and the shape of pineapple sectors in fruit cocktail—to the titanic—like the legal uses of our land and the kind of health care insurance available to patients. And under President Obama, who openly champions a unilateral pen-and-phone approach to governance, the federal bureaucracy has burdened our economy and our lives with more red tape than ever before.
This enormous growth in regulations has accelerated with a rule-making process that is nothing short of broken. Bureaucrats and special interests have developed increasingly sophisticated means of bypassing the basic protections Congress built into the process by which federal agencies write rules. Recent administrations of both parties have proved unable to fix the problem—with Republicans failing to tame out-of-control agencies and Democrats collaborating to facilitate bureaucratic overreach.
In such circumstances, the courts often stand as the only true independent check on increasingly out-of-control regulators. Courts have the power to strike down regulatory actions inconsistent with the law, thereby ensuring that bureaucrats cannot regulate any further than the people’s elected representatives gave them lawful authority to do so.
This system is premised on a very simple notion at the core of our Constitution’s design: that, in the seminal words of Chief Justice John Marshall, “it is emphatically the province and duty of the judicial department to say what the law is.”
Unfortunately, as the regulatory bureaucracy has grown, the judiciary has in many respects become complicit in its overreach.
Over the past three decades, courts have adopted a deferential approach the government in regulatory cases. Under this doctrine—known as "Chevron deference" after the Supreme Court case that established its formulation—courts defer to a federal agency’s interpretation of a law as long as the law is “ambiguous” and the government’s interpretation is “reasonable.” In practice, courts read these terms so broadly as to give federal bureaucrats essentially unbridled power to say what the law is—oftentimes even if the agency’s interpretation contradicts the plain language of the statute.
Also disturbing is the concept of Auer deference, which essentially extends Chevron’s logic to courts’ treatment of an agency’s interpretation of its own regulations. As its critics—including multiple Supreme Court justices—have noted, Auer not only offends basic notions about government accountability and the separation of powers under the Constitution, but it also improperly incentivizes bureaucrats to write vague regulations in order to later reinterpret these nebulous words however they see fit.
Lawmakers on both sides of the aisle have resisted judicial deference from its inception, arguing that the Executive Branch cannot exercise the power to make the law or decide its meaning—whether usurped or voluntarily delegated by Congress. Moreover, Chevron and Auer are plainly inconsistent with the governing language of the Administrative Procedure Act, which says that “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.”
Congress cannot wait any longer to step in and stop the regulatory overreach enabled by Chevron and Auer deference. Recently, we partnered with colleagues in the House and Senate like Senator Chuck Grassley and Mike Lee and Reps. Bob Goodlatte and Tom Marino to introduce the Separation of Powers Restoration Act. This legislation will clarify what should be an unambiguous principle of the Constitution: that courts—not bureaucrats—have the ultimate authority to say what the law is and hold the regulatory bureaucracy accountable to the law.
Restoring this proper judicial role under the Constitution is vital to returning accountability to the regulatory process. We urge our colleagues to join us to win passage of the Separation of Powers Restoration Act and check the overreach of the regulatory bureaucracy.
Republican Orrin Hatch represents Utah in the United States Senate.
Republican John Ratcliffe represents Texas' 4th District in the U.S. House of Representatives.