Hatch Statement on the Nomination of Merrick Garland to the Supreme Court
Washington—U.S. Senator Orrin G. Hatch, a former Chairman of the Senate Judiciary Committee and the Committee’s longest-serving current member, released the following statement in response to President Obama’s nomination of Merrick Garland to the Supreme Court:
"The Constitution grants the President the power to nominate a candidate for the vacancy left by Supreme Court Justice Antonin Scalia’s untimely death. The Constitution likewise gives the Senate the power to provide its advice and decide whether to grant or withhold its consent to that nomination. President Obama has exercised his power by nominating Merrick Garland. I stand with the majority of my Senate colleagues in concluding that the best way to exercise our advice-and-consent power is to conduct the confirmation process after the presidential election. Doing so will keep what should be a serious confirmation discussion from becoming denigrated by the toxic politics of this election season, and it will give the American people a voice in the direction of our nation’s highest court. This approach to the Senate’s advise-and-consent role isn’t about the individual the President has chosen—it’s about the broader principle."
The Senate has never allowed a term-limited President to fill a Supreme Court vacancy this late in his term. This is only the third vacancy in nearly a century to occur after the American people had already started voting for the next President. In the previous two instances, in 1956 and 1968, the Senate did not confirm a nominee until the year after the presidential election. In fact, the only time the Senate has ever confirmed a nominee to fill a Supreme Court vacancy created after voting began in a presidential election year was in 1916, and that vacancy only arose when Justice Charles Evans Hughes resigned his seat on the Court to run against the incumbent president. Senator Hatch laid out a detailed argument for waiting until after the election to fill the current vacancy HERE.
The current vacancy on the Supreme Court arose on February 13, 2016 with the death of the late Justice Antonin Scalia. Senator Hatch was a longtime friend of Justice Scalia. His tribute on the Senate floor to the late Justice can be found HERE, and an op-ed outlining Senator Hatch’s full argument can be found HERE.
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Hatch Speaks on Garland Nomination, Reaffirms Need to Defer Consideration
Washington, D.C.—Senator Orrin Hatch, R-Utah, the former Chairman and longest-serving current member of the Senate Judiciary Committee, spoke on the Senate floor today following the President’s announcement of the nomination of Judge Merrick Garland to the United States Supreme Court.
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Sen. Hatch holds firm on not holding hearings during the election year
Washington, D.C.—After President Obama nominated Judge Merrick Garland to the Supreme Court yesterday, Senator Orrin Hatch, the former Chairman and longest-serving current member of the Senate Judiciary Committee, insisted that the Senate should defer consideration of a nominee until after the presidential election.
On CBS News
Hatch: “It isn’t a matter of the person. It isn’t about the President. It’s about whether we should call up a Senate confirmation vote or even hearings in this corrosive atmosphere. The Senate is doing its job of advice and consent, strictly as described in Article 2 of the Constitution. The Senate answers to the people, not the President, not the media, not anybody else.”
On Fox News
Hatch: “I happen to like Judge Garland. I think he’s a good person. But frankly that’s not the issue. It’s not about the person; it’s the system. We’re in the middle of a major toxic presidential campaign and I don’t want to see the Supreme Court dragged through the mud.”
“There’s a time when we can do this, and there’s nothing in the Constitution that says that Republicans can’t choose a better time than this.”
On CNN
Hatch: “It’s not a question of who he’s appointed; it’s a question of whether you should bring that up during a caustic, toxic election process—something that hasn’t been done in the last 75 years with the exception of Justice Kennedy, who only came after a long ordeal when the Democrats attacked Bork.”
Jake Tapper: “If this vacancy had emerged last November instead of last month, would it have then been okay to try to fill this seat?”
Hatch: “It probably would have. To make a long story short, Joe Biden when he was chairman of the Committee said in 1992 that President Bush shouldn’t be allowed to be able to bring up a Supreme Court Justice during a presidential year. Harry Reid has said that, Senator Leahy has said that, and the fact of the matter is they're right. This is not the environment to bring up a Supreme Court Justice. I’d rather have it put over. It’s fair to both sides—whoever wins is going to be able to appoint the Justice. The President has an absolute right to recommend and submit who he wants. The Senate has an absolute right to determine when that should be brought up.”
Tapper: “Theoretically, if Hillary Clinton wins in November you might end up with a much younger and much more liberal Supreme Court nominee.”
Hatch: “That’s the risk you take. On the other hand, do we want the process to be right, sophisticated, and good with a minimum amount of politics involved? Or do we want to just throw it into this cauldron of the presidential election?”
On Fox Business
Hatch: “I gave a major speech to the Federalist Society, and it was interrupted by people sent over by the Democrats and the President’s political group. They interrupted and just kept yelling throughout the speech until they eventually wore out. This is the kind of two-bit stuff they play on you, and this is a serious thing, and it ought to be put out of this toxic area right now and put off until after the election, and then whoever is President can make that decision.”
On PBS
Hatch: “The quality of the nominee is not an issue. The person is not an issue. What is an issue is whether we should do this during a toxic election process. You’ve seen over recent years that the Democrats started this when they destroyed Bork, who was one of the great legal minds.”
Hatch: “I’ll tell you one thing I’m tired of. When it comes to the Supreme Court, we should all be venerating that court and venerating the people on it. And to put the people, even a good candidate, through this toxic process during a presidential election—which really hasn’t been done before in this way—would I think would be a tremendous mistake, and I think Republicans aren’t going to do that. Neither would Democrats. If positions were changed and it was the other way around, the Democrats wouldn’t be going ahead either.”
On MSNBC
Hatch: “The Senate has NEVER confirmed a nominee to the Supreme Court vacancy that opened up this late in a term-limited President’s time in office. This is only the third vacancy in nearly a century to occur after the American people had already started voting in a Presidential election.”
On ABC 4 Salt Lake
Hatch: “They say that the Constitution provides that the Senate’s job description requires a prompt Judiciary Committee hearing and a timely floor vote. There may be a constitution somewhere that says such a thing, but it certainly not in our Constitution.”
On Fox 13 Salt Lake
Anchor: “Utah Senator Orrin Hatch is sticking to his guns, saying the Senate will not confirm a Supreme Court Justice during an election year. Hatch is now at the center of the national argument….Hatch and Senator Mike Lee both knew this was coming. Their argument against the idea of confirming an Obama nominee is now an argument against a nominee who has a compelling resume and life story. Hatch’s argument: This is a toxic political year, the wrong environment to pick a judge.”
On KSL in Salt Lake
Hatch: “Our decision has nothing to do with the identity of the nominee. And Republicans made our decision known weeks ago before the President had chosen anyone.”
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Release: Senate, House Leaders Introduce Bill To Restore Regulatory Accountability Through Judicial Review
Washington, DC—Legislation to restore accountability to the regulatory process was introduced Thursday by a coalition of lawmakers eager to ensure proper judicial review. The bill, called the "Separation of Powers Restoration Act" would empower the courts, not agencies, to interpret all questions of law, including both statutes and regulations.
The Senate bill was introduced by Senators Hatch (UT), Grassley (IA), Lee (UT), Lankford (OK), Flake (AZ), Inhofe (OK), Tillis (NC), Cruz (TX), Cornyn (R-TX), Sasse (NE), and Sullivan (AK).
The House bill was introduced by Representatives Ratcliffe (TX), Goodlatte (VA), Marino (PA), Chaffetz (UT), Buck (CO), Yoho (FL), S. King (IA), Bryne (AL), Babin (TX), M. Brooks (AL), Brat (VA), Love (UT), Salmon (AZ), Hensarling (TX), Rouzer (NC), Bishop (MI), Palmer (AL), Messer (IN), Mulvaney (SC), Labrador (ID), Trott (MI), Mullin (OK), Sensenbrenner (WI), Schweikert (AZ), DeSantis (FL), Loudermilk (GA), Issa (CA), Westerman (AR), Burgess (TX), Culberson (TX), Lummis (WY), Walker (NC), Olson (TX), J. Smith (MO), Kelly (PA), Renacci (OH), Gosar (AZ), McMorris Rodgers (WA), LaMalfa (CA), D. Collins (GA), Graves (GA), Franks (AZ), Farenthold (TX), Griffith (VA), L. Smith (TX), and Chabot (OH).
"The federal regulatory process is broken. Washington bureaucrats impose expensive and often unnecessary rules that strain family budgets and impede our ability to create jobs,” Senator Hatch said. “In this environment, the courts stand as the only truly independent check on out-of-control regulators, but judicial deference to the agencies undercuts the courts’ ability to hold the government accountable to the law. Our bill restores accountability to the regulatory process by ensuring that the courts say what the law is, not what the agencies wish the law would be.”
“Regulators have taken advantage of the courts’ deference under Chevron to shoehorn the law into their own political agenda, expanding their authority well beyond congressional intent. But the Constitution’s separation of powers makes clear that it is the responsibility of the courts – not the bureaucracy – to interpret the law. And they should do so independently. This bill reasserts the clear lines between the courts’ role in interpreting the law, and the Executive Branch’s role in enforcing the law. By doing so, it takes a strong step toward reining in the regulators,” Chairman Grassley said.
“In practice Chevron deference has become a direct threat to the rule of law and the moral underpinnings of America’s constitutional order,” Senator Lee said. “The Separation of Powers Restoration Act of 2016 will restore that balance by bringing back traditional judicial review of administrative actions.”
“This bill addresses the core problem of executive agencies inventing new law on the American people rather than applying existing law from the American people,” said Senator Lankford. “Deference to the executive branch creates an imbalance in our constitutional system’s balance of powers, favoring centralized executive power over the legislative and judicial powers. The result is that the vast majority of laws burdening everyday Americans come not from politically accountable officials in Congress, but from unelected bureaucrats in federal agencies. Through several hearings before my Regulatory Affairs Subcommittee, it has become apparent that the Chevron and Auer doctrines harm everyday Americans. This is not how the Founders intended for government to work. To restore Congress’ and the courts’ role in our constitutional system, we need the Separation of Powers Restoration Act to ensure that agencies don’t get a blank check to make and interpret law.”
“This bill will help restore the proper balance of power in our constitutional system,” said Senator Flake. “In today’s world of vast executive agencies it is important for courts to provide serious review of actions taken by these agencies and that is exactly what this legislation will do.”
“At the core of our unique system of government are three equal branches – the legislative, executive, and judiciary,” said Senator Inhofe. “However, under the Obama administration, executive branch overreach has upset that balance. The Environmental Protection Agency has repeatedly been among the worst offenders. The American people can no longer afford EPA’s costly and lawless regulatory actions premised on the notion of agency deference. This ‘just trust us’ mentality is not enough. This bill is an important step to restore the necessary balance among the branches and protect the American people from excessive executive overreach.”
“One of the biggest challenges facing our nation is a large and cumbersome regulatory environment that negatively affects hardworking American families and business, and impedes our nation’s economic growth and potential,” said Senator Tillis. “After eight years of unprecedented executive bureaucratic overreach, this legislation takes necessary steps to hold unelected bureaucrats and regulators accountable by restoring the proper separation of powers to the legislative and judicial branches.”
“At a time when runaway executive agencies are more unwieldy than ever, empowered by a lawless president, Congress must act to reassert and restore its appropriate place as a coequal branch of government,” said Senator Cruz. "It is encouraging to see members in both houses working together to stop unelected bureaucrats, who are wreaking havoc on our nation's economy as well as the Constitution. This bill reverses the trend of enabling bureaucracy at the expense of Congress and the courts.”
“Washington’s unelected bureaucracy is not a super-legislature but too often it acts like a fourth branch of government,” said Senator Sasse. “This bill takes an important step to restore the Constitution's system of three separate branches of government with specifically defined duties on behalf of the American people.”
“When courts rely on the Chevron doctrine, congressional authority is undermined," said Senator Sullivan. "As the power of the regulation nation grows, the rule of law is increasingly ignored. It’s time for Congress to act. This simple change in the law will reinforce the constitutionally mandated division of authority between the three branches of government.”
“The endless stream of rules and regulations being rolled out by federal agencies has real consequences for real people all across the country,” said Congressman Ratcliffe. “Unelected federal bureaucrats are not accountable to the American people and can’t be voted out of office; yet, they wield immense power to impose regulations that have the force of law. I’m grateful to be a part of the solution today as we introduce this important legislation to rein in an administrative state that has been allowed to wield immense lawmaking power outside of the will of the Constitution.”
"Today's federal administrative state is an institution unforeseen by the Framers of our Constitution, that is rapidly mushrooming out of control,” said Chairman Goodlatte. “This overgrown bureaucracy is tipping our system of checks and balances away from the legislative and judicial branches, and towards a stronger, emboldened, and overreaching executive. The precedent set by Chevron has been a catalyst for a runaway administrative state, and we are undertaking a strong, bicameral effort to bring balance back to our federal government.”
“I am grateful to my colleagues in the House and Senate for their efforts on this bill,” said Subcommittee Chairman Marino. “Our Founders envisioned three separate but equal branches of government. But for too long, we in Congress have skirted our duties by drafting weak legislation, that empowers rather than constrains the ever growing administrative state. The Supreme Court’s Chevron decision only worsened this problem, as the Court abdicated its own role as the ultimate judge of the law. Today’s bill curtails the overreach of executive agencies at the source of their power, the Administrative Procedure Act, and begins the important steps of returning control of the government to the people, through Congress.”
“Congress has largely outsourced its Article I, Section I legislative powers to the Executive, empowering bureaucrats while relegating itself to the legislative sidelines,” said Congressman Hensarling. “Exacerbating this congressional self-enfeeblement is a legal doctrine established by the Supreme Court known as Chevron Deference. This is the foundation of the so-called Fourth Branch of government, in which federal agencies have become legislator, prosecutor, judge, and jury. It’s past time for Congress to take back its constitutional authority. That is why Senator Lee and I started the Article I Project (A1P). The ‘Separation of Powers Act’ is a small but vital first step towards fulfilling the mission of A1P.”
Background
For many years, the nation has witnessed a steady accumulation of power within administrative agencies. As a practical matter, agencies’ power to regulate and to adjudicate has supplanted the legislation and judicial review as the primary means by which governance takes place at the federal level. This trend has only accelerated under President Obama; his major legislative accomplishments such as Obamacare and Dodd-Frank have delegated massive amounts of power to the federal bureaucracy, and the administration has sought aggressively push the bounds of its regulatory authorities.
The central precept undergirding the Constitution is the notion that the preservation of liberty depends of the separation of powers among branches capable of checking the excesses of each other. As James Madison put it in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” By definition, the accumulation of power within administrative agencies represents a shift away from the constitutional separation of powers and the liberty it protects. Insulated from the checks and balances on its authority, the federal bureaucracy has now imposed an estimated $1.88 trillion burden on the economy annually, according to the Competitive Enterprise Institute. That equals roughly $15,000 per household and 11.5% of the nation’s 2012 GDP. It is more than $300 billion higher than combined individual and corporate federal income tax receipts and equivalent to 85% of U.S. corporate profits in 2013. Judicial review represents the most effective remaining independent check on regulation and administrative action.
One of the primary means by which the judiciary checks the otherwise-unbridled powers of federal bureaucracy is by evaluating whether an agency’s action violates the law. In such cases, the paramount matter in contention is the meaning of the law at issue. For many years, the courts’ held that when considering the meaning of legal text, “[i]t is for the courts, not the [agencies], ultimately to determine as a matter of law what they include.” Fed. Trade Comm’n v. Gratz, 253 U.S. 421, 427 (1920). This approach was anchored in Chief Justice John Marshall’s seminal words in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), that “i[t] is emphatically the province and duty of the Judicial Department to say what the law is.”
However, in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court held that courts should defer to an agency’s interpretation of a statute as long as the statute is “ambiguous” and the agency’s reading is “reasonable.” In practice, these terms are interpreted extraordinarily leniently for agencies. In subsequent cases, the Supreme Court has extended similar deference to other legal interpretations by agencies. For example, in Auer v. Robbins, 519 U.S. 453 (1997), the Court applied the Chevron standard to agencies’ interpretations of their own regulations. Furthermore, in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that statutory interpretations by an administrative agency can override previous interpretations by federal courts, and in City of Arlington, Tex. v. Fed. Commc'ns Comm., 133 S. Ct. 1863 (2013), the Supreme Court even went so far as to hold that a court must defer to an agency's interpretation that concerns the scope of the agency's jurisdiction.
The Separation of Powers Restoration Act would clarify in Section 706 of the Administrative Procedure Act that courts shall decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”
