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, anddetermine 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.