Separation of Powers Restoration Act

by Dennis Crouch

The Separation of Powers Restoration Act has been reintroduced in the House of Representatives (H.R. 76) and will likely be quickly passed either alone or as part of the larger Regulatory Accountability Act of 2017 (H.R. 5).  Although unclear at this point, Democrats may welcome the measure as it would substantially weaken executive agency power under President Trump by eliminating the deference courts typically give to agency determinations of law.

The amendment is applied to the Administrative Procedures Act, but is clear that it applies to “any action for judicial review of agency action authorized under any provision of law”:

(a) To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.

 

Proposed amendment to 5 U.S.C. 706.

For the PTO, the change would open the door to challenge the PTO’s implementation of its PTAB Trial procedures as well as examination procedures, examination requirements, etc since any “rule” created by the PTO can be challenged with de novo review as well as any questions of law (even where the PTO has authority to make those determinations and was previously given deference).

Congressional Republicans likely want to push this through quickly before the Trump administration recognizes the substantial power that the amendment would take away from the Presidency.

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

53 thoughts on “Separation of Powers Restoration Act

  1. >Congressional Republicans likely want to push this through quickly before the Trump administration recognizes the substantial power that the amendment would take away from the Presidency.

    Do you seriously believe that Trump’s advisors don’t know what this would mean? Seriously?

    Reply
    1. My thoughts exactly. Besides what ‘substantial power’ is being taken away? The ability to do whacky stuff like interpret an EPA statute to regulate CO2 as a pollutant? Removing Chevron deference – which to me was always sort of a cop out by SCOTUS to avoid it’s duty to police the administrative state – will only result in some other SCOTUS invented deferential rule – like ‘reasonable’ or ‘not implausible’ because for practical purposes the administrative state is so large – SCOTUS does not want the work. But, if it moves one step closer for the Court to ‘man up’ and strike down IPR and give us back our 7th Amendment it’s all good in my book. #MAGA

      Reply
      1. iwasthere: me too on Chevron deference. I took administrative law in law school. I remember thinking that it made no sense in context of the Constitution. It was essentially saying that these specialist that are part of the executive branch should be given deference over the judicial branch because they were experts. I didn’t see (and don’t see) how this can be squared with how other expert testimony is treated in courts, e.g., psychologist and psychiatrist.

        Reply
    2. True, but they will probably see it as a cut in power to regulate, which they tend to favor.

      Reply
      1. If you mean the fourth branch of government – the Administrative state – then I agree. They like less oversight. IMHO Trump is going to make congress work very hard. And call out the knuckle draggers in both parties.

        Reply
  2. Having personally challenged the patent office interpretation of “privity, ” and, having had that challenge rebuffed on the principle that the decision to institute was not reviewable, all I can say is that this type of legislation is sorely needed.

    Reply
      1. Chevron certainly can be weird in application, and in the way that too many text books present it. It is convenient for ~50% of the political apparatus at any given moment to pretend that Chevron means that the regulatory agency always wins, so there are a lot of academic resources poured into defending that interpretation of Chevron in law reviews.

        That is not the interpretation of Chervron that tends, any more, to prevail in courts. Justice Scalia did a very effective job of paring Chevron down to a rule you use only when ordinary canons of statutory construction fail. If one understands Chevron in that way, then it seems a pretty good rule to me. Better, in those circumstances, to leave the interpretation of the law to another elected branch then to have a bunch of unelected judges flip a coin and stick us with a statutory construction for as long as it will take for Congress to revisit the subject (essentially forever, with today’s Congress).

        Reply
        1. Greg, some merit to what you are saying. But, another way to think about it is that those administrative agencies are nothing more than the executive branch like the president. So, adding some deference doesn’t really make sense in the context of the Constitution. Let’s remember that the interpretation is being directed by a political appointment of the President. So, the person is essentially a paid expert hired by the President.

          Also, it is hard to square with how other experts are treated, e.g., psychologist.

          Reply
        2. Also, I owe you a cite about the Scotus saying that the 1952 act essentially codified their case law.

          Reply
          1. Night Writer – look to the machinations of the Court in the early post-1952 patent cases.

            Note as well that such statements of the Court are worse than dicta – they have nothing to do with the reasoning of the case at hand, and only serve the self-seeking clutching onto power that the Act of 1952 removed, vis a vis using the power of common law evolution to set the definition of “invention.”

            Reply
          2. Sure, if you have a case to cite me, I will be glad to read it. Off the top of my head, I suspect you are thinking of Graham v. John Deere Co., 383 U.S. 1, 17 (1966) (“We conclude that [§ 103] was intended merely as a codification of judicial precedents embracing the Hotchkiss condition, with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability,”).*

            There are two things to notice about this. First, elsewhere in Graham the Court acknowledges that “[i]t also seems apparent that Congress intended by the last sentence of § 103 to abolish the test it believed this Court announced in the controversial phrase ‘flash of creative genius,’ used in Cuno… .” Id at 15. In other words, the Court recognizes that the 1952 act both codified pre-1952 precedent and trimmed back some pre-1952 jurisprudence. In other words, the 1952 Act codified the stuff that it codified, but not the stuff that it did not codify.

            Second, when called upon to specify what exactly was codified, the Court names Hotchkiss. There is a lot of water under the bridge between Hotchkiss and the 1952 Act. How much of that intervening matter was codified? The Court does not really tell us, and neither is the statute perspicuously clear on this point. There is, in other words, quite a lot of room for the law to move and still be consistent both with the statute and with the Court’s authoritative interpretations of the statute.

            * Also off the top of my head, you might be thinking of Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 n.10 (1972) (“When § 271 was drafted and submitted to the Senate in 1952,… Senator McCarran,… [said] ‘It codifies the present patent laws,”), but this is merely a cite to legislative history, not an actual holding of the Court).

            Reply
            1. Greg, I think Federico also suggested that the source of 103 was Hotchkiss. He spent a lot of time talking about that case in connection with 103 in his commentaries on the ’52 Act.

              Reply
              1. The source of 103 were the writers for Congress.

                I am sure Ned, that you recognize the name (as you ever try to sully that name because you desire a different version than what Congress actually passed in 1952.

                Reply
    1. Ned, the Fed. Cir. has not been giving that much deference to PTO statutory interpretations anyway, certainly not consistently, so I am not sure how much difference this proposed APA amendment would make?
      As for who is a “privy” that issue is of course now at stake in the pending en banc Fed. Cir. decision that may open up jurisdictional challenges to IPR inititation, at least on appeal from the final decision. But in any case, is a mere IPR decision as to what a statutory term like “privy” means [versus formal PTO rule-making] entitled to Chevron deference anyway?

      Reply
      1. Paul, well, they might say it is entitled to deference because they are relying on the trial practice guidelines that control is the factor they are looking for.

        Reply
        1. But the PTAB Trial Practice Guidelines state that “[s]uch questions will be handled by the Office on a case-by-case basis taking into consideration how courts have viewed the terms “real party-in-interest” and “privy.” [Thus NOT a PTO statutory interpretation of privy.] Trial Practice Guidelines, Vol. 77, No. 157, 78756 (Aug. 14, 2012). Also citing to Taylor v. Sturgell, the seminal Supreme Court case that outlines six factors that provide the familiar framework for determining if a non-party is in “privy” with a party to an action: 1) the existence of an agreement that the non-party be bound by a determination of issues in an action between the parties, 2) the existence of a pre-existing substantive legal relationship between the non-party and a party, 3) representation in an action by someone with the same interests as the non-party, 4) the assumption of control over an action by the non-party, 5) re-litigation of issues through a proxy, and 6) the existence of a special statutory scheme.

          Reply
  3. A healthy Constitutionally-based form of Government of checks and balances is better served when the Judicial Branch can review de novo the legal issues raised by the actions of various Executive agencies, including the PTO in this immediate matter.

    Reply
  4. Yes, it is less effective at implementing things, but it more effective at securing freedoms…

    I would find this argument more compelling if I saw actual evidence that Canada/Australia/etc enjoyed fewer freedoms than we do. Perhaps, for instance, if the government agents at U.S. airports did not feel free to grope my person, while the agents at Canadian airports made free in such respects. As it happens, however, the reverse is the case, so it is a touch precious to suggest that our system is better than theirs at preserving our freedoms.

    Reply
      1. At least I’m not the only one who gets the boxes mixed up occasionally. :)

        Reply
  5. I won’t be throwing fruit at you, Greg (at least not for the general critique of the US system). Re this:

    Even here in the U.S., the feckless gridlock we have experienced for the last two decades is the natural result of trying to arrange a separation of powers between the executive and the legislature.

    It’s a bit odd that it took so long for this “natural” state to come about. Is it a coincidence that this gridlock really took off right around the time that wealth disparity exploded and now seems cemented forever (or at least for as long as “money = speech”)?

    All that said, a more representaive democracy would be a vast improvement over the system we have now, which was designed to enhance/prolong the power of slaveholders and other wealthy r@cists (and lot it behold — it works!). Maybe in 50-100 years we’ll see something better. Unfortunately, it appears that we’ll be cleaning up the inevitable disasters of the next two years for a long, long time.

    Reply
  6. I have to say, I am surprised how much ill-will is forming against Chevron. I will be the first to admit that (especially pre-Mead) Chevron deference has been taken to unwholesome extremes at times, but I think that the SCotUS has mostly restored a healthy equilibrium between the legitimate supervision of the judiciary and the sort of deference to the elected branches that is necessary to a democracy. In other words, just when the judiciary finally gets Chevron right, that is when industry, the academy, and the judiciary (especially Justices Roberts, Thomas, and Alito) all start ganging up against Chevron. Puzzling.

    Reply
    1. Greg,

      There is a reason for Chevron deference on which perhaps you can elaborate which is, I think, along the lines of judges lack technical expertise to second guess, e.g., the National Nuclear Security Administration. I thought this was utterly foolish until reading the last sentence: “No law may exempt any such civil action from the application of this section except [!!!] by specific reference to this section.”

      So, there is an out clause which the commentators above have missed. I imagine this will be used for most favored agencies. My guess is that the PTO will not be included.

      Reply
      1. Troubled: So, your argument is that the situation of so much expertise is needed trumps the Constitution. And, when so much expertise is needed is determined by Congress. This is not an argument that is consistent with the Constitution. The fact is that the agency needs to convince the court of this. Your argument boils down to it is needed to make things work; therefore, we shall remake the Constitution without an amendment.

        Reply
        1. Your argument boils down to it is needed to make things work; therefore, we shall remake the Constitution without an amendment.

          Translation: The ends justify the means.

          Where have seen seen this line of “reasoning?”

          Reply
        2. Night,

          Although the Constitution is mentioned, having seen no more than what is above, I think this is directed at statutory interpretation and I assume de novo means without deference to the agency. One interpretation is that by law, henceforth, all statutes governing agencies are crystal clear and without ambiguity. That’s probably too much, so one is left with judges should do the best they can without agency technical input except for definitions of words. I just suggested that this will work better for some agencies than others.

          One might note that Congress passes laws after inputs from agencies, I think with the understanding that agencies will make regulations that carry out the general intent of Congress not always spelled out precisely in legislation. In this new regime, Congress will be forced to write such detailed laws that the job will prove too much and it will go back to the old ways of doing things for many, if not most agencies. For some reason, the IRC is the exception and the one that gets the most complaints from all sides.

          Reply
      2. The IRS is one example. The Tax Court reviews agency tax deficiency determinations de novo. See recent 4th Circuit published opinion in QuinetiQ v Comm’r rejecting application of the APA to a notice of deficiency

        Reply
  7. Still doesn’t address the constitutional problem in patent law – that patents are public rights. Additionally, if re-designated as private property rights, de novo review has to occur at the district court level, otherwise the AIA remains unconstitutional, de novo appellate review notwithstanding.

    Reply
    1. the constitutional problem in patent law – that patents are public rights. A

      Why is that problem?

      Reply
      1. Well, that is amusing part in all of this – as a public right, there isn’t a separation of powers violation for the Act to address. Instead, it would be mere statutory compliance.

        Reply
        1. Except for the fact that the statute itself says patents are (personal) property rights, anony….

          Reply
            1. Which carries more legal weight? (and yes, judicial mockery has created a conflict – which branch has actual (constitutional) authority to resolve that conflict?

              Reply
    2. Still doesn’t address the constitutional problem in patent law…

      I am sure it does not. It is intended to reverse Chevron, not achieve any particular goal in patent law. I expect that the Congressional staffers who drafted it are only hazily aware that there exists a body of law related to patents. Patents may well seem like the sun and stars to those of us who frequent this blog, but to most of the rest of the world patent law is as uninteresting and insignificant as the weather forecast in Moose Jaw, SK.

      Reply
      1. The posted article appears to suggest that the Act might remedy the separation of powers concerns presented by Article I invalidation of granted patent claims generally.

        That is not the case, assuming that patents are property rights. Of course, the CAFC has established that they are public rights.

        Reply
        1. Sure, Dennis gave the bill a patent-law spin because that is what this blog is about. That is not really what the “Separation of Powers Restoration Act” is about, however. This is a proposed amendment to Title 5, not Title 35. It might have some effects on patent law, but the folks pushing the bill care about the EPA and the NLRB, not the PTAB.

          Reply
          1. the folks pushing the bill care about the EPA and the NLRB, not the PTAB.

            Oh hush, Greg. This isn’t time to be divisive. We have to give the Republicans a chance! The people have spoken! I heard it on TV.

            Reply
  8. Congressional Republicans likely want to push this through quickly so their ultrawealthy white friends can start r@ping the country in earnest

    Fixed for accuracy.

    before the Trump administration recognizes the substantial power that the amendment would take away from the Presidency

    What? I’m not sure why “the Trump administration” would care. The ultimate goal here is to eliminate agency regulation entirely, except for new agencies like the Agency for Religious Freedom Protection and the American Tradition Promotion Agency. Those agencies will be exempted from the laws, and the “dedicated” people working in them will be given long appointments. All other “regulation” will be handed over to corporations because they know what’s best for themselves (of course!).

    Try to remember: all of the above was mandated by the American people who voted overwhelmingly for Republicans! Just ask the newly created Agency for Truth! As for those “problem” people who refuse to go to the back of the bus, well, further gutting of the Voting Rights Act and gerrymandering will take care of their squeaking.

    Reply
  9. “Congressional Republicans likely want to push this through quickly before the Trump administration recognizes the substantial power that the amendment would take away from the Presidency.”

    One can only hope that some day a principled administration would recognize the need for separation of powers and its function in a government which adheres to the rule of law rather than the rule of men.

    Reply
    1. …and with that sage view, I would add that I hope that this bill sees an amendment recognizing that the separation of powers doctrine applies to ALL three branches (including as well the separation between the judicial branch and the legislative branch).

      Reply
    2. I will probably get rotten fruit thrown at me for saying this, but I think that it is fairly well empirically established that separating executive from legislative power is a mistake. Look how poorly it has worked out in most of the places it has been tried. Even here in the U.S., the feckless gridlock we have experienced for the last two decades is the natural result of trying to arrange a separation of powers between the executive and the legislature.

      The British (and Canadians, and Australians, etc) have the right idea: let the people elect the legislature, and then let the legislature elect the executive. That way you cannot have the executive say “the people elected me to do X” and the legislature say “the people elected us to do NOT X.” In other words, separation of powers between exec and leg sets the system up so that democracy can work at cross purposes to itself. By contrast, combining the exec and the leg sets up a system in which democracy is naturally efficacious and productive.

      Separation of powers between exec/leg and judiciary is important, however.

      Reply
      1. Isn’t that a fixture and not a bug of our system?

        The UK or Australia may be very efficient at implementing the will of the people.

        However, our system allows for a cross-purpose of will between the two entities to ensure a compromise is reached. The slowness to enforce the will of the majority in the legislature by the will of the president is but one more way to check tyranny.

        Yes, it is less effective at implementing things, but it more effective at securing freedoms, which I would say is the most important item of consideration.

        Further, the system isn’t perfect, so the judiciary has to do its job to protect freedom/liberty as an independent body when the other two do have the same ideas about the minority.

        Reply
        1. Yes, it is less effective at implementing things, but it more effective at securing freedoms…

          I would find this argument more compelling if I saw actual evidence that Canada/Australia/etc enjoyed fewer freedoms than we do. Perhaps, for instance, if the government agents at U.S. airports did not feel free to grope my person, while the agents at Canadian airports made free in such respects. As it happens, however, the reverse is the case, so it is a touch precious to suggest that our system is better than theirs at preserving our freedoms.

          Reply
        2. [O]ur system allows for a cross-purpose of will between the two entities to ensure a compromise is reached.

          Maybe it used to work like that. Recent examples of compromise are fairly thin on the ground. Basically the system you described worked back when the two parties were not ideologically cohesive (with a large pocket of liberal Republicans in New England and a large mass of conservative Democrats in the deep South). Now that those liberal Republicans have switched to the Democratic party and those conservative Democrats have switched to the GOP, the system no longer functions as you describe.

          Reply
      2. Greg, assume for the sake of this argument that everything Mrs. Clinton was accused of in terms of play-for-pay was true. Would it make any difference in her ability to carry out her nefarious activities if the the Secretary of State were also a member of Parliament? Is there anything different about the British system, for example, in its ability to handle self-dealing scum like this?

        Reply
        1. Ned,

          It is not 100% clear to me that the British system is any more susceptible in theory to corruption and self-dealing than is the American system. As an empirical matter, we do not observe appreciably more corruption in the U.K. than the U.S., or vice versa. Both systems seem relatively resistant to flagrant self-dealing (although we appear to be about to put that assertion to a very strong test).

          In short, resistance to corruption and self-dealing does not seem like a criterion by which we might prefer one system over the other. They are both approximately equal by that criterion.

          Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

 Notify me of followup comments via e-mail.

You can click here to Subscribe without commenting