When federal regulatory expert Wayne Crews was asked recently what Congress should do about excessive government regulation, said, “You don’t need to tell the grass to grow, but you do have to take the rocks off of it.”
Crews’ reply pointed to a fundamental problem Americans have been struggling against for generations—what was once the world’s freest, most productive, and innovative economy is steadily being buried under a landslide of rocks in the form of intrusive, burdensome, and costly federal rules and regulations.
That world was created by the Supreme Court’s 6–2 decision on June 28 in Loper Bright Enterprises v. Raimondo. Justice Ketanji Brown Jackson didn’t consider or vote on the case.
In the decision, the high court nullified a landmark 1984 ruling—Chevron v Natural Resources Defense Council—that instructed federal judges to defer to federal agencies when executive branch officials issue new regulations based on their interpretations of vague congressional authorizations.
By giving agencies the power to decide congressional intent, the Chevron Deference doctrine effectively transferred to political appointees and civil servants in the executive branch the power to decide what Congress intended a particular law to require or bar. The doctrine also all-but-removed federal judges from nullifying agency actions they believe violate congressional intent.
Under Chevron Deference, an already bulging Code of Federal Regulations, containing more than 111,000 pages in 1984, ballooned in the years thereafter to today’s nearly 189,000 pages.
The costs to businesses and individuals of regulatory compliance with those pages exceeds $2.1 trillion annually, which is passed on to taxpayers in the form of higher prices, according to the 2024 edition of Crews’ “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State.” Crews is the Fred L. Smith Fellow in Regulatory Studies for the Competitive Enterprise Institute.
The Loper decision put the ball back in the court of Congress by making clear that only federal judges are to interpret what Congress declares is its intent through its authorizations in laws.
“The Supreme Court’s decision in Loper correctly restores the legislative power where the Constitution actually assigns it, in the legislative branch,” House Committee on Administration Chairman Brian Steil (R-Wisc.) said at the July 23 hearing in his opening statement.
“Now is our opportunity to explore how we leverage the Supreme Court’s ruling. Without action, we run the risk of continuing to grow the administrative state. We must rein in the administrative state.”
To do that going forward, according to Steil, Crews, and others on both sides of the aisle, Congress must significantly expand its regulatory analysis and oversight capabilities. To handle that, they say more staff will be required, as well as the creation of a new legislative organization, the Congressional Regulatory Office.
The Regulatory Office would join the Congressional Budget Office, Government Accountability Office, and Congressional Research Service as organizations specifically designed to assist senators and representatives in the legislative process.
The Regulatory Office would analyze the costs and potential effectiveness of existing and proposed laws and regulations, as well as advise Congress on making more precise the authorizations included in present and proposed statutes.
A second, more complicated issue is also presented to Congress by the Loper decision: Should Congress go back and revise authorizations contained in the hundreds of laws it passed between 1984 and 2024?
Sen. Mike Crapo (R-Idaho) said the IRS Direct File Program is a recent example of a federal agency going to an extreme in relying on Chevron Deference. Under Direct File, the IRS would prepare a taxpayer’s annual return instead of the individual or a private preparer.
“In the case of Direct File, the IRS is inferring the right to create a direct file program from language in a recent statute that merely authorized the agency to study whether such a program should be authorized by Congress,” Crapo told The Epoch Times.
“The Loper case makes it clear under the United States Constitution that the Judicial branch has the sole authority to interpret the law. The Direct File program is a permanent government detour into the tax preparation business, is not authorized by statute and wastes taxpayer funding that could be put to better use.”
The Idaho Republican also warned that, while creating a new Congressional Regulatory Office “might not be a bad idea,” Congress itself may be its biggest obstacle in responding to the Loper decision.
Congressional drafters have too often written proposed legislation that is vague and purposely delegating to the agencies.
“That’s been done in drafted language and we are going to need to make sure that those employees of the Senate and the House who draft legislative language going forward not only refrain from making inappropriate delegations of authority to the executive branch but by making it clear the legislative language is not to be redefined by executive agencies,” Crapo said.
Heritage Foundation constitutional scholar Hans von Spakovsky agreed with Crapo, telling The Epoch Times that “the problem for decades now has been Congress passing broad, vague laws and then saying ‘well, we’ll just leave it up to the administrative agencies to figure out the details.”
Von Spakovsky added that “any time Congress has passed an ambiguous statute, these agencies will do everything they can to enhance their power over whatever areas they have jurisdiction over, whether it’s peoples’ personal lives, their businesses or their professions.”
Two of the more hopeful aspects of the Loper decision, von Spakovsky said, was “first, it will deter federal agencies from going too far, and now, second, we have the courts being able to step in much more often to tell federal agencies they’ve gone too far.”
Prior to joining Heritage, von Spakovsky served in the Department of Justice and was appointed by President George W. Bush to the Federal Election Commission.
And while Republicans and conservatives have enthusiastically cheered the high court’s Loper decision, Democrats in Congress and their allies in the policy analysis and advocacy communities have a radically different take on how Congress should respond to the ruling.
American Governance Institute Executive Director Daniel Schuman told The Epoch News that the Loper decision puts federal judges in a position that forces them to make decisions for which they aren’t sufficiently qualified or knowledgable.
“Congress understood what Chevron Deference was, they knew how to write legislation that would either give the executive branch leeway to make decisions or to control what those decisions were,” Schuman said.
“But what the courts have done is, by striking down Chevron Deference, they have pulled to themselves the ability to make decisions about how to interpret laws that Congress has enacted.”
The result, Schuman said, “is that judges tend to put their fingers on the scales in policy decisions, they tend to go for the things they like more, that’s just sort of human nature. Chevron deference meant that the executive branch made those decisions in a framework that was understood by Congress. Now, with the courts making the decisions, you can’t really undo what they are doing.”
In addition to founding the American Governance Institute, Schuman was founder and an editor of the First Branch Forecast, a weekly newsletter that covers government accountability and transparency, with a focus on Congress and its interactions with the executive branch.
“From food safety and civil rights enforcement to financial regulation and the environment, overturning Chevron will make it harder for public agencies to protect hardworking American taxpayers,” the New York Democrat said.
“This decision to promote and coddle corporate interests at the expense of the health, safety and wellbeing of the American people represents another stain on the legacy of this court,” he said.
Other Democrats wasted no time in introducing legislation to declare the Chevron doctrine only applicable when questions are raised about congressional intent.
In addition, Wyden’s proposal requires courts to consider congressional intent when reviewing the reasonableness of an agency’s interpretation of a statutory provision and define how congressional intent will be expressed.
And the proposal would provide an identical time frame as the Congressional Review Act for a new fast-track mechanism for Congress to overturn decisions by appellate courts to invalidate an agency rule based on a determination that the agency’s interpretation of the statutory provision was not reasonable.
A spokesman for Wyden did not respond to multiple requests by The Epoch Times for comment.
