Earlier this year, Senate and House Republicans introduced the “Separation of Powers Restoration Act of 2016.”  On July 12, 2016, the House passed the bill by a vote of 240-171, largely along party lines.

The legislation would fundamentally alter a cornerstone of administrative law: Chevron deference.  Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, Inc. v. NRDC.  As the name suggests, Chevron deference requires courts to accept an agency’s reasonable interpretation of the ambiguous terms of a statute that the agency administers.  The Court later extended that rationale to require that courts also defer to an agency’s interpretation of its own regulations, a doctrine commonly referred to as Auer deference.

The rationale behind such deference is that agencies–not courts–are in the best position to implement the complex technical regulatory schemes that agencies are tasked by Congress with implementing.  Judges, in contrast, are not (normally) experts in technical fields, and are not part of either “political” branch of the Government. Practically, then, Chevron deference (and Auer deference) permit agencies to change their interpretations of ambiguous provisions in response to changing technological, social, or political circumstances.

The Separation of Powers Restoration Act of 2016 would amend the Administrative Procedure Act to require that courts decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”  Instead of deferring to agency interpretation, courts would be tasked with examining de novo (without deference) statutory language and agency rules.  That is, as proposed, the statute would eliminate both Chevron deference and Auer deference–agency decisions about statutes and rules would be subject to de novo review.  This would impact a wide range of agency action because Congress regularly drafts agencies’ mandates broadly, with Chevron deference in mind.  It is unclear how de novo review might work in practice.  But, at a minimum, the legislation would place courts at the center of controversial agency decision-making, and potentially discourage agencies from taking expansive interpretations of their statutory authority.