S. 1766 A BILL IN THE SENATE OF THE UNITED STATES

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000300020002-9
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• Document Creation Date: December 21, 2016
• Document Release Date: November 17, 2008
• Sequence Number: 2
• Publication Date: August 4, 1983
• Content Type: OPEN SOURCE

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LEGISLATIVE ANALYSIS
Bill No. 5.17(40 Report No. Companion No.
Introduced By: Date: J
Referred to:
Contacts:
&M - CDuNJ*
Hearings/Mark-up:
Conclusion: Q No Agency objection
Monitor
Distribute for comment
Agency objection and/or
needs amendment
Analysis: 0 plc e.J- k JuO1)c.1 A-I
P ~ r r1
U \J
Passage House
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17 IUG 1983
98TH CONGRESS
1ST SESSION
5.1766
To amend section 706 of title 5, United States Code, to strengthen the judicial
review provisions of the Administrative Procedure Act by giving courts more
authority to overturn unfair agency action.
IN THE SENATE OF THE UNITED STATES
AUGUST 4 (legislative day, AUGUST 1), 1983
Mr. BUMPERS (for himself, Mr. NUNN, Mr. QUAYLE, Mr. DECONCINI, Mr.
HEFLIN, Mr. SIMPSON, and Mr. GRASSLEY) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
A BILL
To amend section 706 of title 5, United States Code, to
strengthen the judicial review provisions of the Administra-
tive Procedure Act by giving courts more authority to
overturn unfair agency action.
1 Be it enacted by the Senate and House of Representa-
2 tines of the United States of America in Congress assembled,
3 That section 706 of title 5, United States Code, is amended
4 to read as follows:
5 "? 706. Scope of review
6 "(a) To the extent necessary to decision and when pre-
7 sented, the reviewing court shall independently decide all rel-
"- j 8 evant questions of law, interpret constitutional and statutory
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2
1 provisions, and determine the meaning or applicability of the
2 terms of an agency action. The reviewing court shall-
3 "(1) compel agency action unlawfully withheld or
4 unreasonably delayed; and
5 "(2) hold unlawful and set aside agency action,
6 findings, and conclusions found to be-
7 "(A) arbitrary, capricious, an abuse of discre-
8 tion, or otherwise not in accordance with law;
9 "(B) contrary to constitutional right, power,
10 privilege, or immunity.
11 "(C) in excess of statutory jurisdiction, au-
12 thority or limitations, or short of statutory right;
13 "(D) without observance of procedure re-
14 quired by law;
15
"(E) unsupported by substantial evidence in
16 a proceeding subject to sections 556 and 557 of
17 this title or otherwise reviewed on the record of
18. an agency hearing provided by statute; or
19 "(F) without substantial support in the rule-
20 making file, viewed, as a whole, for the asserted
21 or necessary factual basis, as distinguished from
22 the policy or legal basis, of a rule adopted in a
23 proceeding subject to section 553 of this title; or
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3
1 "(G) unwarranted by the facts to the extent
2 that the facts are subject to trial de novo by the
3 reviewing court.
4 "(b) In making the foregoing determinations, the court
5 shall review the whole record or those parts of it cited by a
6 party, and due account shall be taken of the rule of prejudi-
7 cial error.
8 "(c) In making determinations concerning statutory ju-
9 risdiction or authority under clause (2)(C) of subsection (a) of
10 this section, the court shall require that the action by the
11 agency is within the scope of the agency jurisdiction or au-
12 thority on the basis the language of the statute or, in the
13 event of ambiguity, other evidence of ascertainable legislative
14 intent. In making determinations on other questions of law,
15 the court shall not accord any presumption in favor of or
16 against agency action.
0
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REMARKS
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August 4, 198S - CONGRESSIONAL RECORD - SENATE
political dialogue-including the resumption
of formal diplomatic relations between the
United States and Cuba. Even where there
is external support for insurgency, as in El
Salvador, the underlying problems are do-
mestic, and no amount of military aid or ad-
visers can remove the problems on which
the insurgents feed.
The Administration's Caribbean Basin Ini-
tiative and the Kissinger commission are
welcome, although belated, responses to
these problems. But the depth of commit-
ment to the approaches implied in these ini-
tiatives is called into question by the Admin-
istration's preference for saber-rattling.
The need to shift the focus of U.S. policy
in Central America does not mean that we
should be blind to the external forces that
are exploiting the misery and repression in
the area for their own ends. There is a need,
as the President has said, to provide a
"shield of democracy."
But, as with Vietnam, the American
people will not bear the burden for such a
shield if the threat to democracy is exagger-
ated and it alternatives to military action
have not been seriously pursued.
Mr. BYRD. Madam President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The Assistant Secretary of the
Senate proceeded to call the roll.
Mr. BUMPERS. Madam President, I
ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
RECOGNITION OF SENATOR
BUMPERS
The PRESIDING OFFICER. Under
the previous order, the Senator from
Arkansas (Mr. BUMPERs) Is recognized
for not to exceed 15 minutes.
Fam 1766- G NAMENDI THE JUDI-
IAL REVIEW PROVISIONS OF
HE ADMINISTRATIVE PROCE-
URE ACT
r. BUMPERS. Madam President, I
today introducing a bill to amend
the judicial review provisions of the
Administrative Procedure Act. I hope
this measure, which has come to be
generally kfown as the;,
wlCiwill have the silpport of
- Member of the Senate. I can
make that broad assertion, Madam
President, because essentially this
same bill, which embodies ideas I have
worked for since 1975, was passed
unanimously by the Senate just last
year. And I am proud to say that I am
joined by Senators QUAYLE, NUNN,
HEFLIN, DECONCINI SIMPSON, and
GRASSLEY in offering this bill. Last
year this body approved my judicial
review amendments as section 5 of S.
1080. That bill, which was our major
effort at regulatory reform last Con-
gress, unfortunately never saw action
in the House. The need for regulatory
reform, however, has not diminished.
It has, in fact, increased greatly.
Now is an especially appropriate
time to consider the Bumpers amend-
ment. I say this because of the great
concern which has been expressed in
recent decision in Immigration and
Naturalization Service against
Chadha, holding unconstitutional the
so-called legislative veto. Whatever
one thinks about the merits of that de-
cision and the legislative veto-and I
admit to always having been a critic of
the legislative veto-the fact is that it
had become an established part of th@
system of checks and balances over
the exercise of power by the Federal
bureaucracy. Unless we substitute
other controls the removal of congres-
sional review over rulemaking by the
unelected agency chiefs will only in-
crease the potential for the abuse of
executive power by countless, name-
less, faceless administrators whose de-
cisions have such a tremendous impact
on the lives of all Americans.
A great variety of legislative re-
sponses to the Chadha decision has
been suggested, and more will un-
doubtedly be forthcoming. In my judg-
ment, however, no one thus far has of-
fered a comprehensive answer, one
which will adequately guarantee that
the vast Federal bureaucracy is held
accountable for its decisions. I have
concluded, therefore, that this is an
especially appropriate and important
time to enact an amendment to the
Administrative Procedure Act, that
basic law which governs procedures in
all Federal agencies, which will in-
crease the degree of scrutiny which is
applied to agency decisions when they
are reviewed in the Federal courts.
POLICY
The rationale for this bill is readily
understandable and basic. It is a basic
constitutional rule that in our repre-
sentative democracy, the legislative
power shall be exercised by elected
representatives and not by unelected
bureaucrats who are not responsible to
the electorate. The delegation doc-
trine-that constitutional doctrine
which permits us in Congress to dele-
gate to agencies the power to make
rules necessary to carry out the legis-
lative mandate-presumes that there
will be methods for controlling this
delegated power. Indeed, without such
control the agencies would be the
judges of their own actions. The fox in
the henhouse. Such a result is con-
trary to the principle set out by Mr.
Justice Reed in Social Security Board
against Nierotko: "An agency may not
finally determine the limits of its stat-
utory power. That is a judicial func-
tion." 327 U.S. 358, 369 (1946).
This bill will strengthen the Admin-
istrative Procedure Act's intended pro-
tection against regulatory actions
which are arbitrary and capricious,
and it will do this in four important
"MV -skate: "The re-
S 11583
longer be able to indulge in the pre-
sumption that, "if the agency did it, it
must be within its power." Instead, the
agency will have to affirmatively show
that it was authorized by Congress to
act in a particular case and to take the
actions which it took.
The court will have to be satisfied
that the particular area is one where
the language of the act shows clearly
that Congress intended action by the
agency, or, if the language is ambigu-
ous, then the agency action must be
based on other verifiable legislative
intent.
hot-the-agency, should be the ultimate
interpreter of the law, and the Bump-
ers amendment makes this clear.
This last provision is intended to cor-
rect what I have long seen as an anom-
aly in the law. I have always thought
it peculiar that the courts have so
often stated that they will, on a close
question, defer to an agency's exper-
tise on questions of law. I say this is
an anomaly because I take seriously
Chief Justice Marshall's famous state-
ment in Marbury against Madison
that, "It is emphatically the province
and duty of the judicial department to
say what the law is." It seems to me
that the Federal courts have abdicated
this duty when they defer to an agen-
cy's interpretation of the law which
the agency is charged with enforcing.
It is the courts, not the agencies,
which are charged under the Constitu-
tion with the duty to resolve legal
questions necessary to the decision of
cases before them. I do not doubt that
the regulatory agencies are entitled to
some degree of respect on questions of
fact and policy in their respective
areas of responsibility. But the
present judicial doctrine of deference
to administrative bureaucrats on ques-
tions of law goes a long way toward
the evil of which Bishop Hoadly
warned in his sermon before the King
on March 13, 1717:
Whoever hath an absolute to interpret
any written or spoken laws, it is he who is
truly the lawgiver, to all intents and pur-
poses, and not the person who first spoke or
wrote them.
I urge the Senate to act expeditious-
ly to enact this important reform into
law.
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S 11584 CONGRESSIONAL RECORD - SENATE
LEGAL ANALYSIS OF THE BUMPERS AMENDMENT
One primary mechanism for control
of agency discretion is the require-
ment that when the legislature dele-
gates power, it must establish an "in-
telligible principle" to govern the dele-
gation, and that the judiciary will hold
invalid actions which are not author-
ized by the statutory delegation.
Indeed, a number of recent opinions
by members of the Supreme Court
have underscored that need by empha-
sizing that absent clear Congressional
guidelines as to the limits of delegated
power and clear Congressional guide-
lines as to how, once delegated, the
power is to be used, the purported
grant may be unconstitutional. For ex-
ample, Industrial Union Dep't., AFL-
CIO v. American Petroleum Inst., 448
U.S. 607, , (1980) (Rehnquist, J.
concurring) (concluding that 16(b)(5)
of the Occupational Safety and Health
Act violates "the doctrine against un-
canalized delegations of legislative
power"); American Textile Manufac-
turers Institute, Inc. v. Donovan, 49
U.S.L.W. 4729, , (U.S. June 16,
1981) (Rehnquist, J., dissenting).
Moreover, once Congress has done its
duty by establishing such principles,
the courts must do their duty by hold-
ing invalid actions which are not au-
thorized by that statutory delegation.
In the words of Mr. Justice Reed, "An
agency may not finally determine the
limits of its statutory power. That is a
judicial function" Social Security
Board v. Nierotko, 327 U.S. 358, 369
(1946).
It is appropriate for Congress to un-
derscore this principle that the courts,
and not agencies, make the final deci-
sions as to the extent of agency juris-
diction or authority. Moreover, other
experiences with judicial review
during the past decade demonstrate
the need for additional Congressional
guidance to the courts on other as-
pects of the review of agency rules. In
certain cases, the courts have given
undue deference to agency interpreta-
tions of Congressional intent in con-
struing statutory provisions or terms.
This judicially created doctrine of def-
erence, which in certain instances is
applied as virtual presumption of cor-
rectness of all interpretations of law
by an agency, imposes unfair burdens
on citizens in appeals of agency rules
and undermines the proper role of the
courts. This amendment disapproves
of this doctrine. The courts should not
presume that the agencies are correct
in their interpretations of the law,
whether derived from the Constitu-
tion, the organic statutes and imple-
menting regulations, procedural stat-
utes, such as the Administrative Pro-
cedure Act, or Federal common law
where it exists.
The first change made by subsection
5(b) is the insertion of the word "inde-
pendently" in the introductory sen-
tence of section 706 of title 5, United
States Code ("the reviewing court
shall independently decide all relevant
questions of law, interpret constitu-
tional and statutory provisions, and
determine the meaning or applicabil-
ity of the terms of an agency action").
This modification applies to all the
duties of a reviewing court set out in
that sentence and is intended to reem-
phasize the primary role of the courts
in interpreting all sources of law in-
volved in the review of agency rules.
The addition of a new clause (F) to
section 706(a)(2) provides a separate,
clarified standard for review of certain
factual determinations in informal
rulemakings. Relying on the analysis
in Recommendation 74-4 of the Ad-
ministrative Conference, 1 C.F.R.
? 305.74-4 (1980), clasue 2(F) requires
substantial support for `factual deter-
minations in informal rulemaking
when (1) the determination of fact is
necessary to the rule, (that is, where
the rule would fail to satisfy the "arbi-
trary, capricious, [or] an abuse of dis-
cretion" criterion or where the rule
would be in excess of the agency's au-
thority, absent such a finding of fact),
or (2) the finding of fact is an "assert-
ed" basis for the rule, (that is, where
the agency relies on the finding as
part of its rationale for the policy
choice reflected in the rule).
Under clause 2(F) the "substantial
support" must be found in "the rule
making file, viewed as a whole." Sec-
tion 706 in its present form does not
specifically prescribe the standard of
review for factual issues raised in
review of rules promulgated under sec-
tion 553 procedures. Courts have thus
had to apply the "arbitrary, capri-
cious, [or] an abuse of discretion" test
to these factual issues. Many have
looked for analogy to the "substantial
evidence" standard now applicable to
review of rulemakings "on the record"
and have formulated an equivalent
standard requiring a court to take a
"hard look" at agency factual determi-
nation. Other courts have reviewed
factual issues in a variety' of ways,
none easily defined.
The "substantial support" criterion
is based on the precedents of judicial
review provisions in recent enabling
statutes that follow the logic of the
"hard look" line of cases. For example,
Toxic Substances Control Act, 15
U.S.C. $ 2618(c)(13)(i); Federal Trade
Commission Act, as amended, 15
U.S.C. 157a(e)(3)(A). The courts, in
applying this standard should essen-
tially follow the criteria discussed by
the Supreme Court in Universal
Camera Corp. v. NLRB, 340 U.S. 471,
487-88 (1951) and Consolvo v. FMC,
383 U.S. 607, 619-20 (1966). Later cir-
cuit cases such as Greater Boston Tele-
vision Corp. v. FCC, 444 F.2d 841, 851
(D.C. Cir. 1970) characterize the
Court's role as making certain that
the agency took a "hard look" at the
salient problems and "genuinely en-
gaged in reasoned decisions-making."
Others, citing the Supreme Court's de-
cision in Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402 (1971),
have held that "the grounds upon
which the agency acted must be clear-
August 4, 1983
ly disclosed in, and substantiated by
the record." Appalachian Power Co. v.
Train, 545 F.2d 1351, 1356 (4th Cir.
1976). See Sierra Club v. Costle, No.
79-1565 (D.C. Cir. April 29, 1981) ("If
the agency's decision is not based on
substantial evidence it will be held to
be arbitrary and capricious." Id. slip
op. at 32 n. 67.). The words "substan-
tial support" are also intended to re-
quire that the data or materials in the
record on which the agency based its
factual determinations must be reli-
able and credible even though they do
not necessarily satisfy the rules of evi-
dence applied in judicial proceedings.
Earlier versions of this amendment
used the words "substantial evidence"
rather than "substantial support" in
clause (2)(F). The change in language
here is meant to negate any implica-
tion that the intent of these amend-
ments is to require indirectly the use
of trial-type procedures in informal
rulemaking. Procedural requirements
for informal rulemaking will be found
in other provisions of the A.P.A., such
as in our amendments to section 553,
and in constitutional and common law
considerations of fairness. It is not in-
tended that the words "substantial
support" imply that agencies must use
procedures beyond those required by
law elsewhere.
Finally, "substantial support" stand-
ard in new clause (2)(F) recognizes
that there is a distinction between an
exercise of discretion (policy choice)
by the agency, which remains subject
to the "arbitrary, capricious, [or] an
abuse of discretion" standard of clause
2(A), and the factual foundation for
such a choice.
The final change of subsection 5(b)
adds a new subsection (c) to section
706 of title 5, United States Code. The
first sentence of new subsection (c) of
section 706 directs the courts to play a
more active role in policing regulatory
power by closely construing statutes
which transfer regulatory authority to
administrators. The Supreme Court
has followed this approach in recent
decisions. FCC v. Midwest' Video Corp.,
440 U.S. 689 (1979); NLRB v. Catholic
Bishops of Chicago, 440 U.S. 490
(1979). See also Kent v. Dulles, 357
U.S. 116 (1958); National Cable Televi-
sion Assn. Inc. v. United States, 415
U.S. 336 (1974); Schwartz, Administra-
tive Law Cases During 1979, 32 Ad. L.
Rev. 441, 413-415 (1980).
Thus, subsection (c) emphasizes the
responsibility of reviewing courts to
make sure that agencies do not exceed
the jurisdiction or authority conferred
on them by statute. Many people, in
the Congress and in the public at
large, believe that when Federal regu-
lators seek to intrude into areas not
contemplated by the authorizing stat-
ute, reviewing courts are too lenient in
judging whether an agency has im-
posed an unauthorized regulatory
burden on the citizen. Courts already
vigorously and carefully discharging
their responsibility may not have to
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August 4, 1983 CONGRESSIONAL RECORD - SENATE
alter their practice. In this respect,
subsection (c) embodies a legislative
solution similar to that employed by
the Congress when it enacted the Ad-
ministrative Procedure Act and the
Taft-Hartley Act in 1946 and 1947.
That story is recounted in Justice
Frankfurter's opinion for the Court in
Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474
(1951). The following conclusion
reached by the Court in that case is
equally applicable to this subsection:
[E]nactment of these statutes does not re-
quire every Court of Appeals to alter its
practice. Some-perhaps a majority-have
always applied the attitude reflected in this
legislation. To explore whether a particular
court should or should not alter its practice
would only divert attention from the appli-
cation of the standard now prescribed to a
futile inquiry into the nature of the test for-
merly used by a particular court.
Under subsection (c), a court must
determine that the agency's authority
to act has been granted expressly in
the organic statute or, in the event of
ambiguity, by reference to the stat-
ute's legislative history or other con-
temporary materials relevant to ascer-
taining legislative intent. This provi-
sion is intended to underscore the
duty of the courts to insure that agen-
cies do not transcend the boundaries
of the authority delegated by Con-
gress. Indeed, for a court to allow an
agency to go beyond these boundaries
would be "an unwarranted judicial in-
trusion upon the legislative sphere
wholly at odds with the democratic
processes of lawmaking contemplated
by the Constitution." Lubrizol Corp. v.
EPA, 562 F.2d 607, 620 (D.C. Cir. 1977).
See City of Palestine v. United States,
559 F.2d 408, 414 (5th Cir. 1977); Na-
tional Nutritional Foods Assn v. Mat-
thews, 557 F.2d 325, 326, (2d Cir. 1976).
Since by its terms, new subsection
(c) of section 706 is applicable only to
"determinations concerning statutory
jurisdiction or authority under clause
(2)(C)" of section 706(a), it does not
govern review of agency action that al-
legedly violates other clauses of sec-
tion 706(a)(2). Thus, for example, an
agency's failure to comply with its
own regulations might not be "in ac-
cordance with law", but would not be
in excess of the agency's statutory ju-
risdiction or authority within the
meaning of subsection (c). Likewise,
review of agency action which alleged-
ly violates the clause (B) language
"contrary to constitutional right," the
clause (C) language "short of statu-
tory right," or the clause (D) language
"without observance of procedure re-
quired by law" would not be subject to
the requirements of subsection (c).
In the broadest sense, of course, an
agency many be said to exceed its "ju-
risdiction or authority" whenever it
acts improperly. As already noted,
those words are not used in the expan-
sive sense in this legislation. "Jurisdic-
tion" is to be given its conventional
meaning of the capacity or power to
act concerning a subject matter, area
of activity or class of persons or firms.
E.g., N.L.R.B. v. The Catholic Bishop
of Chicago, 440 U.S. 490 (1979).
The word "authority" is sometimes
regarded as synonym for "jurisdic-
tion". As used in subsection (c), howev-
er, it has a broader significance. When
an agency's action is alleged to be in
excess of its statutory authority, the
issue will be the meaning of the stat-
ute, which is a judicial question to be
decided by the court. Subsection (c) di-
rects the court to make sure that the
agency's assertion of authority is sup-
ported by the language of the statute
or other evidence of ascertainable leg-
islative intent. E.g. F.C.C. v. National
Citizens Committee for Broadcasting,
436 U.S. 775 (1978). In that case, the
FCC issued regulations prohibiting
common ownership of broadcast sta-
tions and daily newspapers in the
same market. In the terminology of
subsection (c), issuance of the regula-
tion would be within the FCC's "juris-
diction"-over broadcast licensees, and
the question for decision on review, as
the Supreme Court stated at the
outset of its opinion, would be "wheth-
er these regulations ... exceed the
Commission's authority under the
Communications Act," id. at 779, thus
triggering the provisions of subsection
(c). On the other hand, if the Commis-
sion has concluded that the Communi-
cations Act did not authorize it to take
into account a licensee's ownership of
other media facilities, subsection (c)
would not be applicable, because in
such a case the consequence of the
Commission's conclusion would be a
lessening rather than an increase of
regulation. In such a situation, those
contending that the Commission was
required to take into account the
factor of ownership of other media
would in effect be arguing that the
Commission's failure to do so was, in
the words of clause (C), "short of stat-
utory right." But agency action short
of statutory rights is not subject to
the requirements the first sentence of
subsection (c), because by its specific
terms the sentence applies only to a
determination concerning jurisdiction
or authority. Action allegedly short of
statutory right, of course, would be
subject to judicial review pursuant to
section 706(aX2XC).
The phrase, "in the event of ambigu-
ity," reflects recognition that if a
court looks only at the words of a stat-
ute, there may be ambiguity concern-
ing the agency's Jurisdiciton or au-
thority not only because the statute
may be couched in broad terms, but
also because a literal Interpretation of
the relevant statutory provision would
produce an anomalous result. In
United Housing Federation, Inc. v.
Forman, 421 U.S. 83'7 (1975), for exam-
ple, the lower court held that shares
of stock in a cooperative housing
project were securities. The Supreme
Court reversed, rejecting the "literal
approach" that "the sale of shares
called 'stock' must be considered a se-
curity transaction simply because the
statutory definition of a security in-
S 11585
cludes the words 'and ... stock'." [Id.
at 848. The Court said that it was
"guided by a traditional canon of stat-
utory construction: "(A] thing may be
within the letter of the statute and yet
not within the statute, because not
within its spirit, nor within the inten-
tion of its makers." Id, at 849. Thus
while courts may resort to the statute
as a whole and its legislative history to
ascertain the legislative will, the bill
would prohibit abuses of post-hoc leg-
islative history. Consumer Product
Safety comm n v. GTE Sylvania, Inc.,
447 U.S. 102 (1980).
The requirement that the court's de-
cision concerning an agency's jurisdic-
tion or authority be based on the lan-
guage of the statute or other evidence
of "ascertainable legislative intent,"
reflects the intention of the commit-
tee that an extension of an agency's
jurisdiction or authority beyond that
expressed in the language of the stat-
ute must be based on facts or materi-
als in the statute's legislative history
that can be discerned, identified, and
discussed by the reviewing court. Sub-
section (c) requires more than surmise,
more than a lack of evidence which
would negate the extension. It re-
quires, instead, identifiable materials
which provide support for the exten-
sion.
Under subsection (c) an asserted ex-
tension of jurisdiction or authority
that is unsupported by the language
of the statute may not be upheld
merely on the ground that the legisla-
tive history is not illuminating and the
agency has made a determination that
the court finds reasonable. According-
ly, under this amendment, a reviewing
court could not properly uphold an ex-
tension of agency authority beyond
that expressed in the statutory lan-
guage on the ground that the exten-
sion "is reasonable and is not prohibit-
ed by the statute" or that the exten-
sion "is reasonable and is consistent
with the statute." Subsection (c)'s re-
quirement of affirmative evidence is
not met by an absence of contradic-
tory evidence. Reasonableness and
consistency with the statutory purpose
are not the equivalent of evidence of
ascertainable legislative intent.
Subsection (c) directs reviewing
courts to play a more active role than
some courts have in the past by care-
fully construing statutes which trans-
fer regulatory power to administrative
agencies. In complying with the sub-
section, reviewing courts should take a
hard look at assertions of regulatory
jurisdiction or authority which an
agency seeks to justify by the argu-
ment that the asserted power is grant-
ed by implication. In the exercise of its
reviewing responsibility, the court will
make use of all appropriate materials
for ascertaining the legislative will and
will be influenced as well by the
nature of the asserted power. If, for
example, the agency is seeking to
assert a basic or significant extension
of authority, the reviewing court
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S 11586 CONGRESSIONAL RECORD - SENATE
should not uphold the extension
unless it is conscientiously convinced
that the statute and relevant legal ma-
terials demonstrate that Congress ad-
dressed the issue, and that the statute
does contain the authority asserted by
the agency. On the other hand, if the
asserted authority at issue relates to
an interstitial or minor matter, the re-
viewing court might well conclude that
although Congress had not addressed
the specific issue, the matter is of such
a character that sensible administra-
tion necessarily requires exercise of
such an implementing authority and
therefore that a fair construction of
the statute and relevant legislative
materials lead the reviewing court to
conclude that Congress has oonferred
the necessary authority.
In imposing a duty on the court to
ascertain the statutory basis for
agency jurisdiction or authority it is
not intended to impose a burden on
them to act sua sponte. Those seeking
review of a rule must still raise the
question of jurisdiction or authority,
but once raised, the burden of persua-
sion passes to the person asserting
that agency jurisdiction exists. This is
not a revolutionary change. It is con-
sistent with the constitutional premise
that delegations of legislative power to
unelected officials are to be narrowly
construed. It is also far easier to prove
the affirmative, that an agency has ju-
risdiction, than to prove the negative,
that it does not. This is consistent
with other sections of this legislation
which require an agency to include a
statement of specific statutory author-
ity under which the rule is proposed
and of the congressional intent specifi-
cally sought to be achieved by the rule
in the notice of proposed rulemaking,
and which require an agency to in-
clude in the statement of basis and
purpose a memorandum of law sup-
porting the determinations of the
agency that the final rule is within the
authority delegated by Congress and is
consistent with congressional intent.
The second sentence of new subsec-
tion (c) of section 706 is intended to
make clear the Congress' intent that
the courts perform, and perform dili-
gently, their traditional role as the ul-
timate and impartial interpreters of
the law. It is designed to insure that,
as to questions of law, the agency and
those seeking review stand on equal
footing before the court without bias,
preference, or deference to either and
without any presumption in support of
or against agency action. The only ex-
ception is for questions of jurisdiction
of authority. Where such an issue is
raised on review, the first sentence of
subsection (c) imposes the burden on
the proponent of agency jurisdiction
to demonstrate that Congress has del-
egated to the agency the authority to
act. The word "other" in the second
sentence of new subsection (c) makes
clear that the general rule of the
second sentence is not to be read to
lessen the obligations imposed by the
preceding sentence on the proponent
of agency jurisdiction and authority.
When a citizen challenges an agen-
cy's rule or order in the courts, the
odds should not be stacked against
him by judicial presumptions in favor
of the agency. The judicially created
doctrine of deference to agency inter-
pretations of law, which some courts
have elevated to a virtual presumption
of correctness, places the bureaucratic
thumb on the scales of justice, weight-
ing them against the citizen. This
amendment intends to reestablish an
equal balance.
These amendments do, however,
leave room for proper reliance on
agency expertise where it actually
exists. It is not intended to preclude
judicial consideration of an agency's
legal interpretation. This interpreta-
tion will be one element of the process
of independent judicial examination.
Nonetheless, the effect of any agency
interpretation of law on the court's
own interpretation should not depend
on some general rule of deference of
presumption of validity. Rather, in ex-
amining an agency interpretation of
law, the court should evaluate "the
thoroughness exhibited in [the agen-
cy's] consideration, the validity of its
reasoning, its consistency with earlier
and later pronouncements, and all
those factors which give its power to
persuade, of lacking power to control."
Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944). The court should also
weigh any countervailing factors bear-
ing on the validity of the agency's
legal position.
Accordingly, under this amendment,
a reviewing court may not proceed on
the assumption that it should uphold
an agency's statutory construction
merely because that construction is
not unreasonable or not irrational.
The second sentence of paragraph (c),
rejects the view expressed in Udall v.
Tallman, 308 U.S. 1, 16 (1965), and
other cases that a court should defer
to an agency's interpretation of a stat-
utory or regulatory term even though
it is not the only reasonable interpre-
tation or even one that a court would
have reached. Instead, the courts are
to regard the interpretation of law as
a question which they must decide.
See e.g., Coca-Cola Co. v. Atchison
Topeka & Santa Fe Ry., 608 F.2d 113
(5th Cir. 1979); Bituminous Coal Oper-
ators Assn. v. Secretary of Interior,
547 F.2d 240 (4th Cir. 1977); and Beryl-
lium Corp. v. United States, 449 F.2d
362 (Ct. Cl. 1971).
In providing that the "no presump-
tion" criterion will apply only to ques-
tions of law, the intent is to preserve
the existing "arbitrary, capricious,
[or] an abuse of discretion" standard
of section 706 with respect to policy
determinations made within the per-
missible limits of agency discretion. In
addition, the "no presumption crite-
rion" does not apply to questions of
fact, which are covered by the "sub-
stantial support" criterion.
August 4, 1983
Some issues will involve mixed ques-
tions of law and policy, or law and
fact. But the difficulties in parsing
and reviewing such issues under differ-
ing criteria now exist under section
706 in its present form. Thus this revi-
sion of section 706 does not create an
obligation for the courts to wrestle
with a new categorization. Despite the
difficulties inherent in this task,
courts can and do distinguish factual
and policy from legal questions when
reviewing agency action. E.g., Swerin-
gen Aviation Corp. v. NLRB, 568 F.2d
458, 463 (5th Cir. 1978); Getty Oil Co.
v. DOE, 478 F. Supp. 523, 527 (C.D.
Cal. 1978). Moreover, courts generally
have to distinguish legal from factual
issues when hearing appeals from
lower court rulings, since different
standards of appellate review govern
resolution of each category of issues
on appeal. E.g?. Buchanan v. United
States Postal Service, 508 F.2d 259, 267
n. 24 (5th Cir. 1975); Crosby v. United
States, 496 F.2d 1384, 1389 (5th Cir.
1974); Rockwood & Co. v. Adams, 486
F.2d 110, 112 (10th Cir. 1973). By es-
tablishing clear standards for review
of the various components of agency
decision, these amendments will sim-
plify the task of the courts.
These changes to section 706 will not
cause any dramatic upheaval in the
process of judicial review of agency ac-
tioUs. These amendments to section
706 are not intended to affect any ap-
plicable rule of law which provides
that in a civil or criminal action reli-
ance on an agency rule or order is a
defense. Thus, a defendant who has
acted in compliance with an agency
rule or order would continue to have
any protection the law now provides
even if the rule or order is subsequent-
ly found to be invalid.
It is expected that whenever an
agency rule or order is challenged in a
civil action where a private party is
suing under an express or implied
right of action for violation of an
agency rule-arguably not a "proceed-
ing for judicial enforcement" within
the meaning of section 706-the court
will apply the same standards of
review as those set forth in section
706. This is not meant to imply any
new standing or right of a defendant
to challenge the validity of an agency
rule or order. Thus, only if and to the
extent that a rule can be reviewed by
the court in the action would the re-
viewing court be expected to apply the
same section 706 tests of lawfulness of
agency action.
The "no presumption" criterion does
not suspend the effectiveness of rules
during the pendency of an appeal.
This criterion affects only the judicial
review of legal issues raised in appeals
of agency action. Pending the outcome
of that judicial review, the rule or
agency action at issue would remain in
effect unless, as under current law, a
court issues a stay of the effectiveness
of a particular agency action pending
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August 4, 1983 CONGRESSIONAL RECORD - SENATE
appeal. 5 U.S.C. section 705. This re-
quirement would not be changed by
the amendment.
While this amendment applies to
the judicial review of questions arising
under the existing and future organic
acts of Congress where the general
standards for judicial review as previ-
ously articulated in section 706 have
been applicable, it is not intended
either to change any settled judicial
interpretation existing at the date of
enactment as to the boundaries of a
particular agency's jurisdiction or au-
thority determined by a Federal appel-
late court, or to unsettle any res Judi-
cats, or collateral estoppel effects of
final prior court decisions on substan-
tive legal questions.
The ultimate objective of these
amendments to section 706 is to make
sure that the pace, scope, and sub-
stance of regulation conform to the
timetable and map established by
elected representatives, rather than by
an unelected bureaucracy. Since
courts do not act on their own initia-
tive, citizens have an important role to
play in assuring the attainment of
that objective. In protecting their indi-
vidual interests they can also help to
protect the public interest.
In addition, closer judicial reading of
the statutory authority of agencies,
perhaps producing decisions that
agencies have no authority to act in
some situations, will be an incentive
for the Congress to "canalize" more
specifically its delegations of law
making power to agencies. "Congress
defaulted when it left it up to an
agency to do what the 'public interest'
indicated should be done." W. Doug-
las, "Go East Young Man" 217 (1974).
See J. Skelly Wright, Book Review, 81
Yale L. J. 575 (1972) ("There is every
reason to believe that, with a slight
nudge from the courts, Congress
would eagerly reassume its rightful
role as the author of meaningful or-
ganic charters for administrative agen-
cies." Id. at 584.).
Indeed, as one critic of agency be-
havior put it, likening agencies uncon-
strained by statutes to Plato's' philos-
opher-king:
[O]ur whole constitutional structure has
been erected upon the assumption that the
king not only is capable of doing wrong, but
also is more likely to do wrong than other
men if he is left unrestrained. We must not
today judge those in possession of govern-
mental power more favorably than did our
ancestors, with the presumption that they
can do no wrong. On the contrary, if there
is any presumption, it should be against the
holders of power, and increasing as the
power increases. In the field of administra-
tive law, historic responsibility can never
make up for the want of legal responsibility.
Schwartz, "Of Administrators and Philos-
opher-Kings: The Republic, The Laws, And
Delegations of Power," 72 Nw. U.L. Rev. 443,
450(1977).
Madam President, I ask unanimous
consent that the bill be printed in the
RECORD.
There being no objection, the bill
was ordered to be printed in the
RECORD, as follows:
511587
S.1766 venting those which are overburden-
Be it enacted by the Senate and House of some and unjustified.
Representatives of the United States of Senator BUMPERS first introduced
America in Congress assembled, Title 5, similar legislation in 1975. It was rein-
United States Code, Section 706 is amended troduced in the 95th and 96th Con-
'T to 706. read as Scope of Revfollows.iew. gresses. At this point, I would like to
my long-term support for
"(a) To the extent necessary to decision reiterate this section demonstrated by my intro-
and when presented, the reviewing court - duction of the amendment in the
shall independently decide all relevant ques-
tions of law, interpret constitutional and
statutory provisions, and determine the
meaning or applicability of the terms of an
agency action. The reviewing court shall-
"(1) compel agency action unlawfully
withheld or unreasonably delayed; and
"(2) hold unlawful and set aside agency
action, findings, and conclusions found to
be-
(A) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with
law*
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction, au-
thority, or limitations, or short of statutory
right;
(D) without observance of procedure re-
quired by law;
(E) unsupported by substantial evidence
in a proceeding subject to sections 556 and
557 of this title or otherwise reviewed on
the record of an agency hearing provided by
statute; or
(F) without substantial support in the
rule making file, viewed as a whole, for the
asserted or necessary factual basis, as distin-
guished from the policy or legal basis, of a
rule adopted in a proceeding subject to sec-
tion 553 of this title; or
(G) unwarranted by the facts to the
extent that the facts are subject to trial de
novo by the reviewing court.
"(b) In making the foregoing determina-
tions, the court shall review the whole
record or those parts of it cited by a party,
and due account shall be taken of the rule
of prejudicial error.
"(c) In making determiniatrions concern-
ing statutory jurisdiction or authority under
clause (2XC) of subsection (a) of this sec-
tion, the court shall require that the action
by the agency is within the scope of the
agency jurisdiction or authority on the basis
the language of the statute or, in the event
of ambiguity, other evidence of ascertain-
able legislative intent. In making determina-
tions on other questions of law, the court
shall not accord any presumption in favor of
or against agency action.
Mr. GRASSLEY. Mr. President, I
now rise in support of the introduction
of the Bumpers amendment, named
after its originator, the distinguished
Senator from Arkansas.
This section amends the Administra-
tive Procedure Act in these respects:
Reviewing courts are instructed to
make independent determinations on
all questions of law whether they be
jurisdictional, constitutional or proce-
dural. No presumption of validity will
attach to agency regulations. The
court will be the final arbiter as to
whether an agency has gone beyond
congressional intent in taking certain
actions.
In addition, the reviewing court
shall set aside agency regulations
where substantial support is lacking
for the necessary factual determina-
tions which provide the basis for the
rule. This will assure the promulgation
of necessary regulations while pre-
House in 1979 and the fact that I was
fortunate erfough to chair the hear-
ings on the amendment held last Con-
gress before the Subcommittee on
Agency Administration of the Senate
Judiciary Committee.
On September 7, 1979, the Senate
adopted a similar proposal as a part of
the Federal Courts Improvement Act.
The House Judiciary Committee ap-
proved the Bumpers amendment with
only one dissenting vote on September
17, 1980, as part of a comprehensive
regulatory reform package. However,
neither of these bills incorporating the
amendment was ever finally enacted
into law.
It has been demonstrated, through
the extensive hearing process, that
this legislation is necessary now more
than ever. Testimony elicited before
the Subcommittee on Agency Adminis-
tration indicated that great deference
has been given to various e}gencies in
delineating their own authority. This
function is clearly one for the courts,
not for the agency. Examples have
been given time and time again of
agencies taking broad statutory lan-
guage and construing it to justify cer-
tain agency action clearly going
beyond congressional intent. The pur-
pose of this legislation is not to allow
courts to constantly second guess
policy decisions properly made by
agencies but instead to return to the
courts the role of final arbiter of ques-
tions of law. It has always been the
courts job to construe statutes and to
determine whether an agency is oper-
ating within its statutory authority.
The other major criticism raised
against this concept is that it may
result in increased litigation. This fear
is unfounded. What it will result in is
promulgation of more responsible
rules. As Mr. Neil Kennedy, former
Senate Legal Counsel, indicated in his
testimony, agency lawyers "are going
to have to live with this provision and
advise their agencies" accordingly.
"This should result in no more litiga-
tion than at present and you may have
fewer rules * ? ? and better ? ? ? more
modest and realistic rules." Mr. Ken-
nedy continued, "? ? ? after the expe-
rience of the last years, I would ask, is
that bad?"
I ask the same question and believe-
the answer is obvious. The most recent
figure on the cost of regulations to
America's economy is $126 billion an-
nually. If we translate that figure into
personal terms. Federal regulations
cost about $575 per capita each year or
$2,290 per four-member family. This is
without question a contributing factor
to the serious inflation problemi we
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S11589, CONGRESSIONAL RECORD - SENATE August 4. 1.983
are facing today. Excessive regulation Even if they did, these high interest
is eating away at the capital invest- rates may not hurt the economy.
ment which instead should be flowing Let us pause for a moment to marvel
into new production. at this conversion. Remember the
If we expect American industry to story of Saul's conversion on the road
increase production or even remain to Damascus. Saul may have been a
operational it is time for serious re- tough nut to crack. He may even have
evaluation of our regulatory system. been one of the most hard-hearted sin-
Adoption of the Bumpers amendment ners of his day. He was one man, alone
is just one aspect of this process. This, with his wickedness, but the story of
along with the passage of a compre- his conversion has been handed down
hensive regulatory reform bill, will re- from generation to generation for
stare the balance of power to the nearly 2,000 years.
three branches of Government enu- Now we are witnessing the conver-
merated in the Constitution and sion of an institution. Here we see the
return the bureaucracy to Its proper redoubtable Treasury Department,
function of administering the law. reeking with rectitude, suddenly wrig-
glmg into a peek-a-boo blouse, dabbing
RECOGNITION OF SENATOR
PROXMIRE
The PRESIDING OFFICER. Under
the previous order, the Senator from
Wisconsin (Mr. PROxMIRE) is recog-
nized for not to exceed 15 minutes.
DEFICITS AND MIRACLES
Mr. PROXMIRE. Madam President,
I recently ran across a study entitled
"Government Debit Spending and its,
Effects on Prices of Financial Assets."
That has newr been publicly released.
The Treasury Department prepared
this study In May, when the deficit
reached the unprecedented sum of
$161.8 billion, and that for only &
months of the fiscal year. That is an
annual rate of well over $204 billion.
The Treasury is traditionally one of
the most conservative Federal depart
ments, a home away from home for
Wall Street bankers, Given this tradi-
tion and the administrations rehe-
toric, I expected the study to be a
Phiillipptc against deficits, concluding
that those odious red numbers boosted
interest rates, slowed economic
growth, and possibly even signified a
certain looseness of moral purpose.
Imagine my surprise when I discov-
ered than the study came to exactly
the opposite conclusions. Here are
some of the eye-opening results
quoted directly from the study-and I
quote verbatuni:
One can only speculate on what might be
the effect of continuing deficits on prices of
financial assets and, more fundamentally,
on economic growth.
What can be deduced, therefore, is that
the secular trend of deficits, if kept at a sus-
tainable level (that is, not resulting in an
explosive growth of debt-to-GNP ratio.) may
be more conducive to economic growth than
if the corresponding ^mount of funds were
raised by taxing the productive factors in
the economy.
Finally, even if one were to accept the
proposition that continuing high deficit-to-
GNP ratios cause high interest rates, one
could not ceactude that these high interest
rates will unavoidably result In slow- eco-
nomic growth.
Put in plain English, Madam Presi-
dent. the Treasury is now saying that
large, continuing deficits may be just
what the economic doctor ordered.
They may increase economic growth-
They do not cause high interest rates:
on a seductive scent, and chasing after
a debonair deficit. It is as though
Whistler's mother stood up, threw
open that prim, black dress and re-
vealed a shocking-pink string bikini.
This study so astonished me, Madam
President, that it sent me into a rever-
ie, where I beheld other miraculous
conversions: Mr. Casper Weinberger,
"Cap the Knife," arising from his
grindstone with a gleaming knife in
hand, which he uses to slash the fat in
the military budget. Mr. David Stock-
man coming out of the woodshed and
sitting gingerly at a spinning wheel,
where he begins to reweave the safety
net. Mr. James Watt joining Green
peace and being last seen in the bow of
a small rubber raft, shaking his fist at
a whaler. But enough; that last one
snapped me out of it. Some visions are
beyond that pale, even in a reverie.
Still, when the Treasury embraces
large deficits, anything and everything
becomes possible. Perhaps, just per-
haps, the Age of Miracles is still with
us.
TO STOP NUCLEAR WAR WE
NEED COOPERATION AND NE-
GOTIATION NOT STAR WARS
Mr. PROXMIRK Madam President,
President Reagan last March proposed
that this country consider pressing
ahead with our advanced technology
to build an impenetrable net in space
that would permit us to intercept and
shoot down any missile that might be
Bred against this country by the
Soviet Union or anyone else. Since
then Representative KRAMER, a Re-
publican representative from Colora-
do, has Introduced the Peoples' Pro-
tection Act of 1983. The Kramer bill
would establish a new Federal agency
to develop directed-energy systems to
set up a United Space Command to
deploy and operate all strategic defen-
sive systems. and transfer military
space shuttles from NASA to the Pen-
tagon. Mr. KRAMER says he wants to
make nuclear weapons obsolete.
That is a great purpose, Madam
President. Almost every human being
on Earth would favor such a purpose.
But sadly, such an agency, like the
Reagan Star Wars scenario, would be
far more likely to bring a war closer
rather than make it less likely. Only a
few days ago, the Air Force is said to
have successfully tested a laser to
shoot down missiles. A successful laser
against missiles or satellites would be
quite a technological breakthrough in
the nuclear arms race now.
This is exactly the kind of activity
the Kramer bill would foster and fund.
It would accelerate the development
of laser, particle beam and microwave
weapons that would destroy enemy
missiles. I suppose we have rarely, if
ever, in the last 50 years had any new
weapons developed that were not, on
their development, touted, pushed, ad-
vertised as necessary to bring peace,
weapons to bring peace.
Our lasers presumably would shoot
down incoming missiles that otherwise
might blow up our cities and kill mil-
lions of Americans. What is wrong
with that? What is wrong, of course, is
what the Congress discovered more
than 10 years ago when we ratified the
Anti-Ballistic Missile Treaty with the
Soviet Union. Congress ratified that
treaty to stop the development of
weapons by the United States and
Russia that were designed for the ex-
press purpose of sparing each country
the terrible consequences of an enemy
attack with nuclear missiles.
We recognized that, like any other
defensive weapons including lasers,
the offensive provoked by the weapon
would easily, quickly, and much more
cheaply overpower the defensive weap-
ons. Further, lasers could be used and
would be used when fully developed to
knock out satellites, the arms control
eyes and ears of both countries. A
laser defense, like an antiballistic mis-
sile defense, might give a temporary
but false sense of security. If any prin-
ciple surely prevails, especially in nu-
clear war, it is that the country that
chooses to go on the offense can
choose the time, the place, the mode,
and the means of attack and, other
things being roughly equal, will always
have the overwhelming advantage. We
no more need lasers or particle beams
or any other new weapon any more
than we need the MX. We need to ne-
gotiate a freeze on all, and I mean
all-that is all-I will spell it, a-l-l-all
nuclear weapons of all kinds.
Senator DAVID PRYOR of Arkansas
put it best the other day when he
made his fight against our funding a
new nerve' gas program. He said, "on
weapon after weapon, cause after
cause, this seems to be the mentality
of this city, of this town, of this ad-
ministration, of this Congress, all of
us-let us build more, so that ultimate-
ly we can have less."
I think Senator PRYOR had it just
right.
The Worldwatch Institute-a Wash-
ington think tank-has it right when
they argue: "Noryweapons such as sen-
sors, communications systems, and
computers have become as Important
to the strategic balance as weapons
improvements * * '. New information
technologies are driving the strategic
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