Legislating After Loper: Practical Solutions for a Post-Chevron Congress – Highlights & Takeaways

As ranking member of the Committee on House Administration, Rep. Morelle has worked with colleagues on both sides of the aisle to identify steps Congress can take to modernize its processes and operations. In his remarks, Rep. Morelle spoke about what he learned as a state legislator, his reaction to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, and how Congress must invest in itself to fulfill its constitutional responsibilities.

“It’s vital for our appropriators to understand that the failure to invest in Congress will hinder our ability. … So, I’m going to continue to fight for funding in the legislative branch, and to make sure that the Office of Legislative Counsel, Congressional Research Service, Government Publishing Office, and others have the resources to do their job. … I’m going to make it my mission to ensure Congress has both the authority and capacity to hire more technical staff and legislative counsel.”

— Rep. Joe Morelle (D-NY)

Rep. Morelle concluded his remarks by noting that Congress must have “the expertise, the time, the capacity, the patience” to fulfill its Article I responsibilities.

In a conversation about the Working Group’s report, co-chairs Heitkamp and Martinez talked about its recommendations, their experience in the Senate, and how they see the relationship between the legislative and executive branches evolving.

“[The Loper Bright decision] is a wake-up call for the United States Congress to do their job … because regular order is broken. Regular order is where you make much more complex, detailed decisions on complex, detailed issues and where you debate. What people don’t appreciate is that when you don’t have that debate, the public never sees why these decisions were made the way they were made. There is no public exploring or public airing of the dialogue. … When we talked about it in the Working Group, we said, what is the lack of capacity. We need to build the expertise back up, and the resources back up of Congress to do their job.”

— Co-Chair Heidi Heitkamp

“It falls back upon the Congress to be more precise and demand more of itself in the way that it legislates so it leaves less room for there to be prerogatives exercised by the executive branch in ways that it was not ever intended.”

— Co-Chair Mel Martinez

In a conversation moderated by Matthew Schwartz, host of Bloomberg Law’s UnCommon Law podcast, participants discussed congressional capacity, legislative process, and steps Congress might take to revitalize its Article I role. Panelists talked about the evolution of Congress, enhancing congressional capacity, and regulatory changes.

“We’ve got a Constitution. Statutes need to be within that, and then agency actions need to be within the bounds of the statutes. If there are challenges to that, it’s the job of the courts to say what the law is. If there’s a clash between the executive and judicial branches, then it might be that Congress needs to step up and reassert and reinvigorate itself and be a more active player in the checks and balances with respect to the executive. Only Congress can revive itself. Congress writes the rules for its own proceedings so that it’s really up to Congress to fix itself so that it can play the role it’s supposed to play.”

— Kurt Couchman, senior policy fellow, fiscal policy, Americans for Prosperity

“Congress could really help by organizing [its legislative] materials. They could beef that up in any particular legislative case, to have a bipartisan or nonpartisan report on what the materials are, which would also be helpful. It would show the compromises that have been taken. That’s exactly why Justice Scalia was a textualist, because he believed that it’s all about compromise.”

—Victoria Nourse, Ralph V. Whitworth professor in law, Georgetown Law

“Congress is not a monolith. In Congress, by its very nature, there’s something for everyone, there’s some compromise necessary, at least most of the time. So that even the minority continues to have a say and that, too, improves durability and stability. It reinforces the discussion we’re having about the importance of Congress both specifying and clarifying what authority it wants agencies to have or not have. … The importance of Congress reasserting itself in the authority that the executive branch would thereafter have, is a bipartisan issue.”

— Jeffrey Rosen, nonresident fellow, American Enterprise Institute

“There are many questions that we need to re-examine about how a government should run for the 21^st century and right now we have a real opportunity to dig deep and think about what that should look like.”

— Marci Harris, co-founder and executive director, POPVOX Foundation

“Between the work of outside reformers and reformers within Congress and the increasing demands of members of Congress to be relevant, for their ideas to matter, we’re poised for a period of great transformation. Yes, there are some things we should be cautious about, but also an incredible opportunity to get Congress and the federal government to serve the American people in a much better way than they have been.”

— Kurt Couchman, senior policy fellow, fiscal policy, Americans for Prosperity

“It’s a time of opportunity. Opportunity always comes with some uncertainty and some challenges as to what the outcomes will prove to be.”

— Jeffrey Rosen, nonresident fellow, American Enterprise Institute

“We have some existential challenges, so the legislature has to step up and the way that’s going to happen is that the people are going to have to step up, because that’s the incentive. … This is a great time for people to be involved in reform.”

—Victoria Nourse, Ralph V. Whitworth professor in law, Georgetown Law

BPC’s Structural Democracy team has worked closely with Congress for several years to help enhance capacity and modernize processes, including enacting over 200 bipartisan recommendations by the Select Committee on the Modernization of Congress. BPC will continue this work in coordination with stakeholders on and off Capitol Hill and ensure that the Working Group’s recommendations help inform durable action to solve current and future challenges.

BPC remains committed to advancing these and other objectives with the Working Group and our network of partners.