SOPA Restores Constitutional Limits On Out-of-Control Agencies
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For years a key part of the conservative Republican agenda has been ending judicial activism. It may then come as a surprise to some to learn that not only has the House Republican majority passed legislation that would authorize federal judges to be even more powerful, but that the bill was supported by many conservative organizations. The reason is that the legislation in question, the Separation of Powers Restoration Act (SOPA /HR 288), restores the federal court’s function of ensuring federal regulatory agencies respect the constitutional limitations on their power. It does this by ending the Chevron deference, which was established in the case of Chevron v. Natural Resources Defense Council. This was a 1984 case involving a dispute over the interpretation of an Environmental Protection Agency (EPA) rule. Chevron deference means federal courts should defer to a federal agency’s interpretation of its own powers as long as the interpretation does not directly contradict Congress and is “reasonable.” Chevron allows federal agencies the ability to define the limits of their own power, making a mockery of the Constitution’s separation of powers.

SOPA utilizes Congress’ constitutional authority over federal jurisdiction to end the Chevron deference by instructing federal courts, when considering a challenge to a federal agency rule, to “….decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, rules made by agencies, and interpretative rules, general statements of policy, and all other agency guidance documents….” De novo means courts review the agencyrule without considering other options on the rule, including those of the agency Itself.

Unfortunately, SOPA cannot pass a Democratic controlled Senate. Even if it did, it would certainly be vetoed by President Biden. However, this does not mean that Senate Republicans shouldn’t use every method at their disposal to get this legislation onto the Senate floor. Senate Democrats should be forced to go on record as either siding with the federal bureaucracy or the United States Constitution and American people. A vote would highlight the issue of the need to reign in federal bureaucrats prior to the 2024 elections. This is particularly important at a time when the U.S. economy is struggling with inflation, the aftereffects of the COVID lockdowns, global instability, and destructive regulations imposed by Biden’s bureaucratic appointees.

SOPA provides much needed checks to federal bureaucrats such as Federal Trade Commission Char Lina Khan. Khan and her allies claim that a provision in the legislation creating the FTC, which gives the agency power to stop “unfair” competitive practices, allows the FTC unlimited authority over almost every aspect of the U.S. economy. A court bound by the Chevron precedent may very well decide that Khan’s interpretation of her powers is reasonable. However, a court not bound by the Chevron precedent could find that, while the FTC is statutorily authorized to prevent “unfair” conduct, this does not mean the agency can intervene in any business decision it decides is unfair. SOPA thus could be the nail in the coffin for Khan and her efforts to turn antitrust law into a vehicle to increase federal control over almost every aspect of the economy. That may be bad news for Khan and her allies- but would be good news for businesses, workers, consumers, and those who care about restoring the United States Constitution.

Norm Singleton is a senior fellow at the Market Institute. 

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