Building a Congress for a Post-Chevron World
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Today’s ruling in Loper and Relentless dramatically shifts the dynamic between the executive and legislative branches when it comes to writing and implementing government policy. The Supreme Court overturned the “Chevron deference doctrine,” a legal principle established in 1984 which instructed courts to give federal agencies wide leeway when implementing ambiguous or vague statutes enacted by Congress.
The ruling requires Congress having a more expansive role in the details of policymaking than it has become accustomed to. Now, agencies will need far more prescriptive direction from Congress when adopting regulations for carrying out legislative intent, and the legislative branch will need to improve its understanding of federal implementation and employ better foresight to achieve its goals.
While the ruling creates a new standard for the executive branch, it also requires a shift in how Congress writes laws and the resources it requires to do so. All of this will require further investments in the legislative branch. Below are various pathways Congress should consider for the post-Chevron world.
Implications for Congress
For decades, Congress grew accustomed to leaving many implementation and rulemaking questions up to the executive branch while concerning itself with higher-level statutory outlines of federal agencies and programs. Some observers believe Chevron deference incentivized Congress to punt the finer details of divisive or complex issues from the adversarial legislative arena to the more technocratic bureaucracy, disrupting the proper separation of powers. Beyond legal and constitutional arguments, which were just litigated, this style of lawmaking is problematic, particularly in the modern digital era.
As Jennifer Pahlka explains, there is a disconnect between how Congress drafts laws and how that language is interpreted by the implementers in the executive branch. Legislators often focus on detailing certain goals without thinking through how those goals will be carried out. This dynamic is one of the main reasons why Americans are often frustrated by what appears to be an unresponsive government, and why legislators are left befuddled as to why certain problems appear unfixable despite policy action and active oversight.
Today’s ruling will require Congress to reexamine the level of detail it goes into when it drafts legislation. While doing so, Congress might also reconsider the language it uses in legislation to better align policy goals with downstream implementation impacts.
Multiple Pathways Forward
Below are several considerations Congress must weigh as it adjusts to the new policymaking environment.
1. Procedural Authorities
Congress should re-examine its existing procedural and statutory mechanisms for exercising oversight and review of the administrative state. Currently, Congress has broad legislative authority over the issuance and implementation of agency rules—it can require repeal of an agency rule via statute at any time. But Congress also recognized the uniqueness of its regulatory oversight authority by enacting fast-track procedures that allow it to overturn rules via the Congressional Review Act (CRA).
Under the CRA, if Congress acts on a disapproval resolution within a specified timeframe and it is signed by the president, the rule will not take effect, or if it has already taken effect, will be treated as if it never had any effect. Importantly, CRA disapprovals cannot be reviewed by the Courts.
In the post-Chevron era, it is possible that Congress will enact a statute where it believes it provided clear and detailed authority to the executive branch, but where litigants or courts might seek to disagree. To avoid this, Congress could modify its existing CRA authority to not only allow disapproval of an agency rule, but to provide explicit approval of a rule. Alternatively, Congress might develop an entirely new procedural mechanism out of whole cloth. In any event, given Congress’s proclivity for deadlock, it is sensible to mirror the CRA’s fast-track authority when exercising this power.
2. Capacity and Resources
To assume a more active role in policymaking, Congress will need access to levels of expertise, staff capacity, tools, and information it currently lacks. Much of the technocratic expertise of government currently resides in the executive branch. In some cases, Congress might consider how to redeploy that expertise within the legislative branch. The institution should also consider boosting its internal capacity in ways that build on the previous and ongoing work of the Select Committee on the Modernization of Congress.
- Staff Capacity and Expertise: Member office, committee, and congressional support agency capacity has been declining for decades, leaving Congress shorthanded and without much of the expertise needed to carry out a more prescribed lawmaking style. To reverse this trend, Congress needs more expansive staff, and to adjust retention and professional development policies to ensure institutional expertise is nurtured rather than lost.
- Support Agency Regime: In addition to the member, committee, and leadership staff that most people typically think of within the congressional workforce, Congress also relies on numerous support agencies whose resources and responsibilities should be reexamined.
- Congressional Research Service (CRS), Congressional Budget Office (CBO), and Government Accountability Office (GAO): These three support agencies represent the bulk of Congress’s policy expertise. However, each agency’s capacity has declined or stagnated for decades as federal policymaking has become more complex. Congress should consider how to better leverage existing resources within these agencies and work with them to identify resource shortfalls.
- Science and Technology: Congress needs greater access to science and technology expertise since these policy areas require the most amount of information for a larger policymaking role. There has been a nascent conversation as to whether Congress should reform the dormant Office of Technology Assessment or provide many more resources to the Science, Technology Assessment, and Analytics (STAA) mission team within the GAO. Congress should quickly move towards a decision on this front.
- Office of Legislative Counsel: These offices are responsible for assisting all members with drafting legislation. Congress should consider what additional resources this office will need to accommodate an expanded congressional policymaking role. Recent reports have detailed how these offices are already straining.
- Congressional Office of Regulatory Review: One idea, floated by scholars Philip Wallach and Kevin Kosar, is to create a new support agency in the form of a Congressional Regulation Office. Congress should review GAO’s recent study as to how such an office could be implemented.
- Downstream Impacts: Though not directly involved in the policymaking process, adding additional support agencies or increasing member and committee staff will dramatically impact the physical, security, and human resource landscape of the legislative branch. The offices that support these legislative branch operations such as the Office of the Clerk, Chief Administrative Office (CAO), Architect of the Capitol (AOC), Seargent at Arms (SAA), and others may need additional resources to keep up with congressional demand.
- Congressional Access to Executive Branch Information: Congress has routinely battled the executive branch for information for oversight purposes. The need for Congress and its support agencies to have access to high-quality, real-time data has accelerated in the wake of this decision. Likewise, Congress should consider what resources are necessary for adequate representation in the courts, such as the creation of a Congressional Office of Legal Counsel.
- Evidence-Based Policymaking Commission: Congress should take a more wholistic approach by standing up a commission to study how data and evidence are used throughout the policymaking process within the legislative branch and opportunities for improvement.
It will take some time to understand the full impact and downstream effects of the Court’s ruling. One thing is clear: Congress must respond by taking a more active role in the legislative process and oversight of the administrative state. Otherwise, it is allowing the power it has previously ceded to the executive branch to flow to the judicial branch, where courts will continue to make decisions about federal regulations. Thankfully, through recent modernization efforts, Congress has been making progress towards boosting its capacity. Today’s ruling should light a fire in Congress to speed up and expand its efforts to reclaim and reassert itself as the Article I branch of government.
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