Congresswoman Martha Roby

Representing the 2nd District of Alabama

Restoring the Separation of Powers

July 29, 2016
Representative Roby's Weekly Column

The United States government was formed around the fundamental principle of balanced powers divided among separate co-equal branches. The Constitution spells out the various authorities and responsibilities of the Legislative, Executive and Judicial Branches, arranging a system of “checks and balances” to ensure no one branch becomes too powerful. This system is intended to “secure the blessings of liberty” and ensure that our republic truly operates by the consent of the governed.

However, in recent decades there has been an erosion of the Constitutional separation of powers by the growing influence of the Executive Branch. Hardly noticeable at first, the growth of executive power has become all too apparent today. While he certainly isn’t the first president to try to expand the power of his office, President Obama’s attempts to go around Congress and govern by executive fiat have been particularly aggressive. Many times the expansion of executive power doesn’t come in overt presidential acts, but rather in the hundreds of rules or regulations implemented by federal agencies every year. Much of the problem stems from court rulings (Chevron in 1984 & Auer in 1997) that attempted to give agencies flexibility in decision making when the direction and intent of Congress is not clear. Agencies have since taken that deference and run with it, building an all-powerful bureaucracy that some call the “fourth branch of government." Chief Justice John Roberts warned about this slippery slope in a recent ruling giving agencies even more leeway.

“It would be a bit much to describe the result as ‘the very definition of tyranny,’” Chief Justice Roberts wrote in his dissenting opinion, “but the danger posed by the growing power of the administrative state cannot be dismissed.”

In Congress, we are taking steps to restore Constitutional balance through H.R. 4768, The Separation of Powers Act. This bill would codify measures to rein in the Executive Branch, restoring the proper balance of power between all three branches. Specifically, this act seeks to repeal the "Chevron deference,” taking away one of the favorite precedents federal bureaucrats use to justify expansions of agency authority. Under this legislation, if there is doubt or disagreement between the will of Congress and a federal agency, it is up to a court to settle it. That’s the system our founders set up and I strongly believe we must return to it. The result will be more accountability and less free rein for federal agencies in decisions that affect Americans’ lives and livelihoods. 

The House recently passed the Separation of Powers Act by a vote of 240-171. A version of the bill is currently before the Senate Judiciary Committee. Congress has a responsibility to rein in executive overreach and I will continue to fight to restore the separation of powers our Constitution set up.