This Week in Congress: Lawyers, Guns, and Money

Today, the Senate votes on four gun control measures, none of which are likely to pass.

In addition to gun control, the Senate will also consider amendments to the Commerce, Justice, State Appropriations bill.

The House of Representatives comes into session on Tuesday. One of the major pieces of legislation the House will consider is HR 4768, the Separation of Powers Act. This bill amends the Federal Rules of Civil Procedure to reverse federal precedent giving wide desertion to federal agencies.

Campaign for Liberty has signed the following coalition letter in support of this legislation:

Dear Members of Congress,

On behalf of our organizations and the millions of Americans we represent, we are writing to express our strong support for H.R. 4768 and S.2724, The Separation of Powers Restoration Act (SOPRA). This law would give courts the clarity they need to interpret powers ambiguously delegated to administrative agencies.

Congress has, from time to time, been unclear as to the extent of powers it delegates to agencies. Consequently, the courts have adopted two doctrines, known as Chevron and Auer after the cases Chevron USA Inc. v. NRDC and Auer v. Robins, which grant great deference to agency interpretations of the ambiguities. Chevron represents a general presumption that courts should defer to agency interpretation of statues, while Auer requires that courts defer to agency interpretations of their own regulations.

In Marbury v. Madison, Chief Justice John Marshall wrote, “It is emphatically the province and duty of the Judicial Department to say what the law is.” In Chevron v NRDC, Justice John Stevens said it was the province of executive branch agencies to say what the law is.

While these doctrines reflect a concern for a lack of expertise in the courts, their effect can be to give bureaucrats the power to make new law. For instance, in Babbitt v. Sweet Home Chapters of Communities for a Great Oregon, the Supreme Court used Chevron to defer to the Secretary of the Interior when he redefined long-accepted meanings of “taking” wildlife to include unintentional harm to an endangered species, greatly expanding the Secretary’s power and control over Americans.

Auer provides a perverse incentive for an agency to issue deliberately vague regulations that it can reinterpret as it chooses, avoiding the notice-and-comment requirements of the Administrative Procedure Act for a change in regulation. A recent court decision may even allow the agency effectively to rewrite the statute by reinterpreting a vague term in a regulation that also appears in the statute.

In our view, this combination of delegation and deference represents an unjust expansion of administrative power at the expense of the legislative and judicial powers, contrary to the ideals of the American founding.

SOPRA would amend the Administrative Procedure Act to require courts to conduct a de novo (from scratch) review of all relevant questions of law and regulation when they are called into question. This represents a vital step in restoring the courts to their proper role as arbiters of statutory interpretation.

Before Chevron, courts relied on agency expertise to guide their decision making, but they did not cede their fundamental responsibility to interpret the meaning of statutes to agencies. SOPRA would restore that discretion.

 

Millions of Americans are suffering under the weight of burdensome regulation, and often find themselves unable to challenge effectively unjust rules as a result of these judicial doctrines. SOPRA is one of the ways in which we can lift this oppressive burden from their backs.

 

Thank you for your consideration,

Competitive Enterprise Institute

American Commitment

American Energy Alliance

Americans for Prosperity

Americans for Competitive Enterprise

Americans for Tax Reform

Campaign for Liberty

Frontiers of Freedom
Heritage Action for America

Institute for Liberty

Less Government

National Center for Public Policy Research

National Taxpayers Union

60 Plus Association

Taxpayers Protection Alliance

The House will also consider H.J.Res. 88,which overturns the Department of Labor;’s fiduciary rule. For more on this legislation the collation letter C4L signed below:

April 28, 2016

Members of Congress:

 

We, the undersigned organizations and individuals, represent millions of Americans in defense of free markets and constitutional liberties. As such, we believe Congress must exercise its authority granted by the Constitution to halt the Obama administration’s executive overreach. This is particularly true when such action by the administration has attracted bipartisan opposition owing to the massive negative effects it would have on Americans’ retirement savings.

 

We urge you to support H.J. Res. 88, introduced by Reps. Phil Roe (R-Tenn.), Charles Boustany (R-La.), and Ann Wagner (R-Mo.), which uses the Congressional Review Act to disapprove of the Department of Labor’s (DOL) fiduciary rule and prevent it from going into effect. Under the fiduciary rule, the DOL claims authority never granted by Congress to greatly restrict investment choices for 401(k)s, individual retirement accounts (IRAs) and other saving vehicles.

 

In the earlier, proposed regulation, referred to by many as “Obamacare for your IRA,” the DOL did not even bother to hide its contempt for the intelligence of American savers. It said most Americans can’t “prudently manage retirement assets on their own.” Based on this paternalism, the administration now mandates that investment professionals—even if they are serving self-directed investors—must adhere to the government’s one-size-fits-all definition of “best interest” for the investment products they offer. The final rule leaves no room for individual savers to decide what their own “best interests” are.

 

Ninety-six House Democrats have expressed concern that the fiduciary rule could limit access to retirement planning for poor and middle-class Americans. Center-left economists from the Brookings Institution and Progressive Policy Institute have concluded that the rule would cause many Americans to lose their current brokers and could cost savers $80 billion over the next decade.

 

Put simply, the rule would make it much more difficult for individuals to open and maintain an IRA, and for companies to offer 401(k)s. As leading experts say, many brokers will stop serving households with less than $50,000 in assets. The restrictions, therefore, amount to a higher tax burden on Americans by making it harder for the vehicles for retirement saving, designed by Congress, to lower that burden.

 

IRA holders could also lose their ability to invest in gold, real estate, and other nontraditional assets if DOL bureaucrats deem these choices to be not in their “best interests.”

 

We believe the federal government should vigorously prosecute actual fraud by financial professionals, but otherwise leave savers free to seek guidance and make investment choices they deem in their own best interests, taking account of their own individual circumstances and preferences. We urge Congress to do everything in its power to defeat the DOL’s destructive fiduciary rule, including passing this resolution of disapproval under the Congressional Review Act.

 

Sincerely,

 

 

Kent Lassman

President

Competitive Enterprise Institute

 

Lisa B. Nelson

Chief Executive Officer

American Legislative Exchange Council

 

Grover Norquist

President

Americans for Tax Reform

 

Carrie Lukas

Managing Director

Independent Women’s Forum

 

Heather Higgins

President & CEO

Independent Women’s Voice

 

Phil Kerpen

President

American Commitment

 

Coley Jackson

President

Americans for Competitive Enterprise

 

Brent Gardner

Vice President of Government Affairs

Americans for Prosperity

 

Dan Weber

CEO

Association of Mature American Citizens

 

Norman Singleton

Senior Vice President

Campaign for Liberty

 

Andrew Quinlan

President

Center for Freedom and Prosperity

 

Timothy Lee

Senior Vice President

Center for Individual Freedom

 

Tom Schatz

President

Council for Citizens Against Government Waste

 

Wayne Brough

Chief Economist & Vice President for Research

FreedomWorks Foundation

 

George Landrith

President

Frontiers of Freedom

 

Andrew Clark

President

Generation Opportunity

 

Andresen Blom

Executive Director

Grassroot Hawaii Action, Inc

 

Andrew Langer

President

Institute for Liberty

 

Seton Motley

President

Less Government

 

Gregory T. Angelo

President

Log Cabin Republicans

 

Kyle S. Hauptman

Executive Director

Main Street Growth Project

 

Dee Hodges

President

Maryland Taxpayers Association

 

Willes K. Lee

President

National Federation of Republican Assemblies

 

Lewis Uhler

President

National Tax Limitation Committee

 

Pete Sepp

President

National Taxpayers Union

 

Dave Wallace

Founder

Restore America’s Mission

 

Karen Kerrigan

President & CEO

Small Business & Entrepreneurship Council

 

David Williams

President

Taxpayers Protection Alliance

 

Lisa Miller

Founder

Tea Party WDC

 

Kevin L. Kearns

President

U.S. Business and Industry Council

The House will also consider HR 1270, the Restoring Access to Medication Act. This legislation repeals the Obamacare provision forbidding the use of funds from a Health Savings Account for over the counter medicines.

The House will also consider the Financial Services and General Government Appropriations Act. This act makes appropriations for (among other agencies) the Treasury Department and the IRS.

Campaign for Liberty members may also be interested in the following bills that the House will consider on the suspension calendar on Tuesday:

1. HR 5525– Repeals the federal program providing free phones to certain individuals.

2. HR 4639– renews and strengthens the federal office in charge of protecting whistle-blowers.

3. HR 5170– allows states to sue federal funds for “social impact partnerships” as long as they seek federal permission and show they partnerships produced results. While it is good to increase state’s flexibility o use federal funds, the best way to provide effective help is to get the federal government out of the welfare business and return responsibility to provide care to local communities, private charitable institutions, and churches. This bill also renews the TANF program,which is the main federal welfare program.

4. HR 5447– This act provides an exemption from federal group heal insurance requirements for some small business health reimbursement plans.

5. HR 5452– allows individuals eligible to receive care from the Indian Health Service to be eligible to open a Health Savings Account.