Tuberville Joins Working Group Following SCOTUS Loper Bright Decision

WASHINGTON - Following the Supreme Court's ruling in Loper Bright Enterprises v. Raimondo, U.S. Senator Tommy Tuberville's (R-AL) joined U.S. Senator Eric Schmitt (R-MO) and 17 Senate colleagues in launching a major effort to remove legislative authority from administrative agencies and place it back where it belongs: Congress. This effort includes introducing the Separation of Powers Restoration Act (SOPRA), launching a working group comprised of Senators that will regularly meet to discuss furthering this goal, and sending letters to 101 agencies that have published more than 50 final rules since 2000 demanding answers on how current regulatory processes will be handled following the Loper Bright decision.

"For the past 40 years, unelected bureaucrats have bypassed the legislative branch to impose their will on Americans," said Senator Tuberville."For far too long, federal agencies have unilaterally published and enforced burdensome regulations that have crushed American businesses. Not anymore. In ending 'Chevron deference,' the Supreme Court rightfully held that elected members of Congress, not the swamp, write and pass laws in this country."

An example of one of the oversight letters can be found below or here, and full text of SOPRA can be found here.

"Dear Secretary Becerra,

We write to inquire how your agency will apply the Supreme Court's decision in Loper Bright Enterprises v. Raimondo. As you are aware, the Court recently decided Loper Bright, which overruled the Chevron doctrine, whereby courts show considerable deference to your agency's formal interpretation of ambiguous terms in the statutes your agency is tasked with administering. Your agency has published 11,497 of final rules since the year 2000. As your rules will be viewed with new scrutiny, we have formed the Senate's post-Chevron working group to investigate the impacts of Loper Bright and chart a path forward.

We believe that agencies should hew closely to the text of duly enacted laws, and we welcome the end of Chevron deference. However, some commentators have suggested that overruling Chevron could deprive your agency of needed flexibility. Under this view, your agency must fill gaps in, or otherwise stretch the language of, laws to execute programs and meet your mission, including where it touches on public health and safety. The Solicitor General, the executive branch's official representative before the Court, has associated your agency with this view.

While the impact of Loper Bright is yet to play out in lower courts, your agency undoubtedly uses its preferred interpretation of ambiguous statutory provisions - and by extension Chevron deference - to justify both internal and formal legal positions, claims of authority, and actions flowing from these claims. For this reason, your agency should not ignore forecasts of Loper Bright's possible far-reaching impact. Instead, your agency should take steps to understand how its programs and mission might be affected, and take steps to ensure that your agency is, in all instances, prepared to serve the American people consistent with the law.

Congress is an essential partner in these efforts. Since the Chevron doctrine concerns your agency's ability to assert authority beyond that expressly delegated by statute, Congress has a unique role relative to the ongoing implementation of agency programs following the Court's decision. Cooperation from your agency is key to our determination of where, if at all, statutory authorities should be supplemented to bring the plain text of the United States Code in-line with your agency's preferred interpretation. Additionally, Congress is responsible for understanding what steps your agency plans to address potentially impacted programs post-Loper Bright.

Since information sharing with Congress is essential to this partnership and to appropriately addressing any concerns your agency might have, we ask that your agency answer the following questions:

1. Did your agency, including its adjudicative bodies, conduct a review of ongoing adjudications that may be impacted, including on appeal, by the Loper Bright decision modification of agency rulemaking?
   • If so, please list the adjudications you have identified which may be impacted.
   • If a review of adjudications is ongoing, please provide the date it commenced, its status, the estimated completion date, and a list of the adjudications you have identified to-date which may be impacted.
   • If not, why hasn't your agency commenced a review? And is a review planned, and if so, when will it commence and when does the agency estimate it will conclude?

1. Has your agency conducted a review of ongoing civil enforcement actions that may be impacted, including on appeal, if Chevron is abrogated or significantly narrowed by the Loper Bright decision?
   • If so, please list the civil enforcement actions you have identified which may be impacted.
   • If a review is ongoing, please provide the date it commenced, its status, the estimated completion date, and a list of the recently civil enforcement actions you have identified to-date which may be impacted.
   • If not, why hasn't the agency commenced a review? And is a review planned, and if so, when will it commence and when does the agency estimate it will conclude?

1. Has the agency conducted a review of on-going rulemakings that may be impacted if Chevron is abrogated or significantly narrowed by the Loper Bright decision?
   • If so, please list the ongoing rulemakings you have identified which may be impacted.
   • If a review is ongoing, please provide the date it commenced, its status, the estimated completion date, and a list of the on-going rulemakings you have identified to-date which may be impacted.
   • If not, why hasn't your agency commenced a review? And is a review planned, and if so, when will it commence and when does the agency estimate it will conclude?

1. Has your agency conducted a review of recently final rules that may be impacted if Chevron is abrogated or significantly narrowed by the Loper Bright decision?
   • If so, please list the recently final rules you have identified which may be impacted.
   • If a review is ongoing, please provide the date it commenced, its status, the estimated completion date, and a list of the recently final rules you have identified to-date which may be impacted.
   • If not, why hasn't your agency commenced a review? And is a review planned, and if so, when will it commence and when does the agency estimate it will conclude?

We understand that your agency may have prepared for the Court's decision in Loper Bright in other ways. In this case, it's important for our oversight to identify and understand this work. For this reason, please answer the following questions:

1. Please describe any other work that your agency did to prepare for the decision in Loper Bright, including when that work commenced, its status, and key insights produced from this work.

1. If your agency hasn't done other work, please explain why. If other work is planned, please describe the nature of that work, the date it will commence and the date your agency estimates it will conclude.

1. Describe any guidance your agency has received from the Office of Management and Budget, the White House, or any other executive branch entity related to the core issues of Loper Bright, agency deference, the separation of powers, and your agency's authority.

Providing this information in a timely fashion is essential to facilitate Congress' exercise of its constitutional authority to legislate in response to evolving judicial doctrine regarding agency implementation of those laws already on the books.

For this reason, to the extent any responsive information is potentially covered by attorney-client privilege, we request that your agency exercise its prerogative to waive the privilege. If, however, your agency declines to provide any or all responsive information due to attorney-client privilege, please specify the questions and subparts for which responsive information is being withheld under this privilege as part of a privilege log.

If responsive information is withheld under any other privilege, please include each assertion of privilege in the privilege log with similar specificity.

We request answers by August 2, 2024. Thank you in advance.

Sincerely,

The Post-Chevron Working Group"

BACKGROUND:

SOPRA places a de novo standard of review within the Administrative Procedure Act, ending unconstitutional executive deference standards once and for all. Under a de novo standard of review, courts will weigh the merits of the argument without a deference standard to either side, placing American citizens and businesses-either caught on the wrong side of a regulatory enforcement action or challenging the validity of agency action-on an equal footing in court with an administrative agency. Earlier this Congress, the House passed the same bill on a party line vote. Senators Eric Schmitt (R-MO), Ted Cruz (R-TX), Kevin Cramer (R-ND), Joni Ernst (R-IA), Mike Braun (R-IN), John Thune (R-SD), Ted Budd (R-NC), Bill Hagerty (R-TN), Marsha Blackburn (R-TN), and Rand Paul (R-KY) joined Senator Tuberville in co-sponsoring this legislation. Representative Fitzgerald (R-WI-05) introduced the House companion to SOPRA.

In addition to SOPRA, Senator Tuberville and his colleagues are establishing a Post-Chevron working group, led by Senator Eric Schmitt (R-MO), which will regularly meet to discuss how to assess the monumental decision in Loper Bright, how to best limit the unlawful exercise of power by the administrative state, and how the Senate can more effectively legislate on matters that regularly would've been left up to agency deference. Senators Rick Scott (R-FL), John Cornyn (R-TX), Ted Cruz (R-TX), Kevin Cramer (R-ND), Joni Ernst (R-IA), Cynthia Lummis (R-WY), Mike Braun (R-IN), Thom Tillis (R-NC), Ted Budd (R-NC), Pete Ricketts (R-NE), Roger Marshall (R-KS), Bill Hagerty (R-TN), Marsha Blackburn (R-TN), John Thune (R-SD), Rand Paul (R-KY), and Ron Johnson (R-WI) are all part of the working group.

Lastly, Senator Tuberville and his colleagues are in the process of sending oversight letters to 101 agencies that have published over 50 final rules since the year 2000. Those agencies will include the Department of Health and Human Services, the Food and Drug Administration, the Department of Commerce, the Securities and Exchange Commission, the Department of Transportation, and many others. In the letters, the Senators will ask for more information on ongoing rulemaking, civil enforcement actions, and adjudications by said agencies and how the Loper Bright decision impacts all of those actions moving forward, so that the Senators can better conduct oversight over those agencies. Senators Eric Schmitt (R-MO), Rick Scott (R-FL), John Cornyn (R-TX), Ted Cruz (R-TX), Kevin Cramer (R-ND), Joni Ernst (R-IA), Cynthia Lummis (R-WY), Mike Braun (R-IN), Thom Tillis (R-NC), Ted Budd (R-NC), Pete Ricketts (R-NE), Mike Lee (R-UT), Roger Marshall (R-KS), Marsha Blackburn (R-TN), Rand Paul (R-KY), Bill Hagerty (R-TN), Ron Johnson (R-WI), and John Thune (R-SD) all joined these letters.

Senator Tommy Tuberville represents Alabama in the United States Senate and is a member of the Senate Armed Services, Agriculture, Veterans' Affairs, and HELP Committees.

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