Lawmakers Push Dueling Approaches to Post-Chevron Legislating

Sen. Elizabeth Warren (D-Mass.) speaks during a hearing on Capitol Hill in Washington on June 8, 2021. (Evelyn Hockstein/Getty Images)

Members of Congress are wrestling with how to legislate after the Supreme Court overruled the decades-old Chevron-deference doctrine, a move experts say will force lawmakers to delve further into the finer details of particular policy areas.

Some Democrats have sought to avoid this scenario by codifying Chevron deference, which required courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Stop Corporate Capture Act, proposed by Sen. Elizabeth Warren (D-Mass) and other leading Democrats, purports to do that while providing a host of other regulatory reforms.

“Giant corporations are using far-right, unelected judges to hijack our government and undermine the will of Congress,” Ms. Warren said in a July 23 press release.

“The Stop Corporate Capture Act will bring transparency and efficiency to the federal rulemaking process, and most importantly, will make sure corporate interest groups can’t substitute their preferences for the judgment of Congress and the expert agencies.”

A similar bill has been proposed in the House, while Republicans have offered their own visions for a post-Chevron world. Ms. Warren’s statement came on the same day Sen. Bill Cassidy (R-La.) touted legislation to “rein in the executive branch,” his office said.

Sen. Bill Cassidy (R-La.) talks to reporters in the U.S. Senate subway as Cassidy heads to the Senate Chamber to attend the impeachment trial of former President Donald Trump on Capitol Hill in Washington on 11, 2021. (Jonathan Ernst/Reuters)

Also on July 23, the Republican-led House Committee on House Administration held a hearing on “Congress in a Post-Chevron World.” Committee Chair Bryan Steil (R-Wis.) praised the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo for overruling Chevron deference.

“Now that the Supreme Court has correctly overturned the Chevron deference doctrine, we must begin restoring power to the legislative branch,” he said. “This is our opportunity to ask important questions about the structure of Congress now that our role in the rule-making process has been re-established.”

Ranking Member Joe Morelle (D-N.Y.) followed by saying Loper Bright was a tremendous gift to the wealth and the special interests.”

“Corporations will bend over backwards to find cases to undo existing regulations protecting the food and drugs our children consume, the quality of the air we all breathe, and the cleanliness of the water our families drink,” he said.

Relevance of Expertise

The panel heard from various experts on how Congress could reckon with anticipated changes in the way legislators draft policy.

In Loper Bright’s majority opinion, Chief Justice John Roberts described the decision as restoring authority that Congress clarified was for courts authorized under Article III of the Constitution.

He pointed to the 1946 Administrative Procedures Act (APA), which stated that courts “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”

Much of the opposition to overruling Chevron stemmed from the idea that agency experts were the best sources for determining what complex or more technical statutes meant. Justice Elena Kagan echoed this sentiment in her dissent, which wondered whether, for example, an alpha amino acid polymer qualified as a “protein” under the Public Health Service Act.

Mr. Morelle similarly said that Loper Bright would “inhibit sensible regulation especially [in] technical policy areas, including nuclear power, artificial intelligence, climate and climate crisis, and so much more.”

The majority, meanwhile, said that agency interpretations can be informative but ultimately don’t control how a court interprets a statute.

The U.S. Supreme Court in Washington on June 20, 2024. (Madalina Vasiliu/The Epoch Times)

It’s unclear how exactly courts and lawmakers will handle the more technical details of policy. The “post-Chevron” panel on July 23 nonetheless indicated a need for changes to statutory language and congressional manpower in order to absorb Loper Bright’s impact.

“To meet the moment, we need to be clear-eyed about how significant an investment is required,” Mr. Morelle said.

Staffing and Litigation

Witnesses indicated that if Congress responded to Loper Bright with deeper policy analysis, it would need to employ more staff at the committee level or otherwise in order to draft detailed legislation.

“If the court is going to insist that Congress makes policy at ever more granular levels, then Congress will need to build an institutional infrastructure mirroring that which currently exists at the agencies,” Georgetown University Law Professor Josh Chafetz told the committee.

“This means large increases in the number of staffers and diversifying the experience of staffers, including hiring many with graduate degrees in the social and physical sciences, and many more with security clearances.”

American Enterprise Institute senior fellow Kevin Kosar, who has called for a Congressional Regulation Office, told the committee the “capacity is just not there” in Congress for “fruitfully engag[ing] regulatory actions.”

He added that “creating a corps of folks who have legal skills, policy chops—but also statistical analysis skills—who can look at the executive branch ... from snout to tail and ensure that what they’re doing is within the law.”

Justice Roberts wrote that the court’s decision in Loper Bright didn’t “call into question” regulations that had been upheld with the Chevron doctrine.

“The holdings of those cases that specific agency actions are lawful ... are still subject to statutory stare decisis despite our change in interpretive methodology,” he wrote for the majority. He added that “[m]ere reliance on Chevron” was not enough to justify overruling a precedent.

(L–R) Supreme Court Justices Amy Coney Barrett, Neil M. Gorsuch, Sonia Sotomayor, and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ketanji Brown Jackson, Samuel A. Alito, Jr., Elena Kagan, and Brett M. Kavanaugh in Washington on Sept. 30, 2022. (Collection of the Supreme Court of the United States via Getty Images)

Justice Roberts’s opinion, however, didn’t completely foreclose the possibility that prior regulations could be challenged in court or removed by Congress.

Mr. Chafetz said that the Loper Bright decision and another by the court—Corner Post v. Board of Governors—would expand litigation over regulatory action. In the latter case, a majority of the court held that plaintiffs bring a certain type of legal challenge, a facial challenge, against agency actions six years after the action or rule injures them. The federal government had argued that the six-year statute of limitations instead started after the agency made its final decision on a particular regulation.

Justice Ketanji Brown-Jackson’s dissent warned that the decision would have “a profoundly destabilizing” effect on “both Government and businesses” by allowing more lawsuits. In her majority opinion, Justice Amy Coney-Barrett said this concern was overstated, given that regulated parties can always sue agencies even if they don’t bring a facial challenge.

Oversight

In the wake of Loper Bright, congressional Republicans moved for a mass review of prior regulations in light of the court’s removal of Chevron deference.

Sen. Tom Cotton (R-Ark.), for example, introduced the Bureaucratic Overreach Review Act on July 9. This act would require the Government Accountability Office to identify cases where federal courts have chosen agency deference by relying on Chevron and require agencies to review court decisions in which they were afforded deference.

“The agency shall reassess the interpretation of the agency in a written, published memorandum supporting, reversing, or modifying such interpretation,” the draft bill reads.

Senator Tom Cotton (R-Ark.) speaks at the National Review Institute's Ideas Summit on March 30, 2023. (Courtesy of NRI)

Sen. Rand Paul (R-Ky.) and others have been sending letters to 101 agencies requesting information on how Loper Bright impacts their rulemaking and civil enforcement actions. The letters came from a working group launched by Dr. Paul and Sen. Eric Schmitt (R-Mo.). Announced in July, the group is dedicated to “retak[ing] legislative authority away from administrative agencies and plac[ing] it back where it belongs: the Article I branch,” Mr. Schmitt’s office said in a press release.

Among the proposed changes at the July 23 hearing was language clarifying how much deference Congress intended to give agencies in interpreting statutes.

“Congress can write deference into individual bills empowering agencies, or it could even draft the standalone bill re-instituting Chevron deference,” Mr. Chafetz told the committee. “Because Loper Bright claims to be an interpretation of the Administrative Procedure Act ... it can be reversed by statute.”

Paul Ray, who led the Office of Information and Regulatory Affairs under former President Donald Trump, suggested that Congress could specify the outcomes it was seeking.

New Laws

Both Mr. Ray and Wayne Cruz, a senior fellow at the Competitive Enterprise Institute, suggested placing proactive restrictions on agencies’ regulatory authority.

“I don’t see a way for Congress to reestablish control, so long as it is in a fundamentally responsive posture to the agencies and the executive branch generally,” Mr. Ray said.

“So the key to my way of thinking is for Congress to again become the first mover it was intended to be under the Constitution.”

He called on Congress to pass the Regulations from the Executive in Need of Scrutiny or REINS Act, which requires congressional approval of “major” rules.

A 2023 version of the law defined a major rule as one that is likely to result in, among other things, “an annual effect on the economy of $100 million or more” and “a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.”

Dr. Paul, who has sponsored a Senate version of REINS, responded to Loper Bright by pushing the Separation of Powers Restoration Act, which amends the APA by more explicitly requiring courts to conduct “de novo” review. “De novo” is a legal term that means “from the beginning” and refers to courts analyzing a law without deference to a prior court’s or agency’s determination.

Another House bill from Rep. Mark Green (R-Tenn.) would sunset or place time limits on the effect of rules that were upheld through Chevron deference.

Republicans’ efforts came against the backdrop of Democrats pursuing court reform while attempting to counter decisions from the predominantly conservative Supreme Court.

Democrats have already pushed an attempt to codify the landmark decision in Roe v. Wade. On the administrative law front, House Judiciary Ranking Member Jerrold Nadler (D-N.Y.) introduced a law on July 11 designed to reverse the effects of the decision in Corner Post.