Support the Separation of Powers Restoration Act, H.R. 3494

On behalf of FreedomWorks’ activist community, I urge you to contact your representative and ask him or her to cosponsor the Separation of Powers Restoration Act (SOPRA), H.R. 3494, introduced by Rep. Scott Fitzgerald (R-Wis.). SOPRA seeks to restore the proper separation of powers by eliminating judicial deference to bureaucratic agencies’ interpretation of laws.

Our Constitution establishes three distinct branches of government: a legislature to create laws, a judiciary to interpret, and an executive to administer and enforce. Unfortunately, the separation of powers that is a hallmark of our constitutional system of government has become muddied by a lazy Congress and indifferent judiciary. Increasingly the legislative and judicial branches have delegated their constitutional authority to unelected bureaucrats in executive agencies. One of the most significant ways this delegation has manifested itself is in the practice of judicial deference.

As the Supreme Court ruled in cases like Chevron U.S.A. v. Natural Resources Defense Council (1984) and Auer v. Robbins (1997), federal courts are prohibited from reviewing an agency’s interpretation of statutes or regulations. Commonly referred to as Chevron and Auer deference, these cases have resulted in a situation where federal judges must defer to the agency to interpret the relevant statute or regulation rather than form their judgment.

To ensure that the federal courts are not deferring their constitutional authority to administrative agencies, SOPRA would require the reviewing court of any agency action to decide the case de novo. In other words, the judge presiding over any administrative review would decide all “questions of law” or “ambiguities” based on the facts and legal arguments presented. Simply deferring questions or ambiguities to the agency under review would be expressly prohibited.

Enacting SOPRA and eliminating judicial deference through legislation would be an essential step toward recovering our constitutional system, sending a strong message to an ever-expanding executive branch. For these reasons, I urge you to contact your representative and ask him or her to cosponsor the Separation of Powers Restoration Act, H.R. 3494.


Adam Brandon, President, FreedomWorks