In the legal world, the biggest news event this year had nothing to do with assassination attempts, campaign shake-ups or convicted ex-presidents. It was the Supreme Court’s decision in June to kill the 40-year-old Chevron doctrine, which directed courts to defer to federal agencies’ interpretation of ambiguous statutes.
The question now, which the House Administration Committee considered Tuesday, is what a post-Chevron world will look like: Will unelected judges — some conservative, some liberal — create a hodgepodge of conflicting interpretations of laws? Will Congress reclaim the policymaking power it has slowly ceded to the executive branch over the past century by writing more precise statutes? And, if so, what will that look like?
While the Loper Bright Enterprises v. Raimondo decision left conservatives mostly excited and liberals mostly anxious, both sides testifying at Tuesday’s hearing broadly agreed that Congress should increase its lawmaking capacity in response.
“This is our opportunity to ask important questions about the structure of Congress, now that our role in the rulemaking process has been reestablished,” said House Administration Chairman Bryan Steil. “In the Loper Bright decision, the Supreme Court has provided a real opportunity for Congress to restore itself to the ‘people’s house’ once again. ”
“Even before the decision … Congress desperately needed an infusion of resources, capacity and expertise,” said ranking member Joseph D. Morelle, D-N.Y. “Now the need is more urgent.”
Republicans largely see this as a chance to “rein in the administrative state,” as Steil, R-Wis., put it.
Democrats countered that the decision will unleash a torrent of litigation that will benefit only business interests. “This decision did not empower Congress,” Morelle said. “It empowered the conservative majority on the Supreme Court and a legion of Federalist Society-vetted lower court judges to make extreme and ill-informed decisions impacting every American’s daily lives.”
Legislative response
Testifying before the committee, Georgetown Law professor Josh Chafetz noted how Congress could essentially reinstitute Chevron deference through legislation, either with a single bill directing courts to defer to agencies or by adding a “Chevron clause” to legislation on a bill-by-bill basis.
Sen. Elizabeth Warren, D-Mass., introduced just such a bill this week to reinstate Chevron.
But as a legal realist, Chafetz warned that the Supreme Court might simply find constitutional grounds to invalidate that kind of legislative response, even if it could pass. “The general anti-administrative posture of the current court should make us skeptical that it will allow Congress to assert itself in this way,” he said.
Chafetz went on to say that everyone on the panel seemed to agree, despite their ideological differences, that “if the court is going to insist that Congress make policy at ever more granular levels, then Congress will need to build an institutional infrastructure mirroring that which currently exists at the agencies.”
Kevin Kosar, a senior fellow at the American Enterprise Institute, urged the panel to consider a proposal he’s long advocated that would create a nonpartisan congressional regulatory office. The Government Accountability Office studied the idea last year.
Whether Congress ultimately decides to further shrink the regulatory state or shore it up, the panel agreed it’ll require way more expertise and capacity to do the job. An analysis by the POPVOX Foundation found that the legislative branch budget is roughly 1/120th of the executive branch’s nondefense, non-mandatory funding. A few of Tuesday’s conservatives pointed to the sheer size of the federal bureaucracy, citing 439 federal agencies employing 2.2 million nonmilitary employees.
As Satya Thallam, senior vice president of government affairs at Americans for Responsible Innovation, noted in his written testimony, the number of congressional aides is actually smaller today than when Chevron was decided in 1984. “The total number of House of Representatives staff was 9,556 — it’s now actually down by three percent,” he wrote. “Does anyone on the committee believe Congress’s work has become slightly less complicated, confusing, and therefore easier since then?”
Steil asked the panel for ways of increasing congressional capacity without adding staff, but they didn’t think that was possible. “I just can’t,” said Kosar.
In addition to overturning Chevron, this Supreme Court has made it easier to attack regulations in a number of recent cases, dramatically expanding the statute of limitations to challenge regulations in one decision this year and developing a “major questions doctrine” in a series of cases.
GOP lawmakers are already floating proposals to build upon the Supreme Court’s deregulatory decisions. Sen. Bill Cassidy of Louisiana this week introduced a bill that would require federal agency chiefs to testify in Congress before implementing a major rule and require retrospective cost-benefit analyses of new rules after five years. In his testimony, Clyde Wayne Crews of the Competitive Enterprise Institute urged Congress to pass another GOP proposal that would essentially require Congress to vote on any major rule proposal before it could be implemented.
Some populist thinkers argue cost-benefit analyses tend to be inherently anti-regulatory and too easily manipulated to arrive at a favored outcome (a point bolstered by conservative outrage over the Biden administration’s rewrite of Office of Management and Budget CBA calculations).
The CBA of a rule to ban a factory from releasing a certain kind of pollutant may weigh potential job losses against reductions in local cancer rates or yield gains at nearby farms, but it will say nothing about children catching fireflies or a laid-off worker numbing his pain with opioids. Trying to incorporate every impact is a fool’s errand, like trying to monitor butterflies’ flapping to predict hurricanes, they contend, and the whole process only disguises a subjective decision in the veneer of objective math.
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