Legislating After Loper: Practical Solutions for a Post-Chevron Congress

The Bipartisan Policy Center convened the Working Group on Congress, Courts, and Administrative Law in 2024 to examine the implications for Congress of a series of Supreme Court decisions in recent years. Those decisions concerned administrative law and the relationship between Congress and executive branch agencies.

During the Working Group’s deliberations, new questions have been raised about lines of authority between the legislative and executive branches. The Supreme Court, too, granted review of additional cases relating to administrative law issues. At the time of writing, a good deal is in flux regarding debates and legal challenges concerning the roles of the different branches of government.

The Working Group focused on Congress, namely what actions the legislative branch might take in response to signals from the Supreme Court that it needs to do a better job of drafting legislation and delegating authority. No matter what transpires during the present political moment, the issues addressed here—delegation, interpretation, deference, congressional capacity—will not recede as priorities for Congress to improve itself.

Below is a summary of the Working Group’s recommendations.

1. Empower congressional committees in their essential role as sources of knowledge and deliberation.

Any effort to change the way Congress legislates and improves its deliberations must start with its committees. By a variety of indicators, the role of congressional committees has shifted over time, from policy development to executive branch oversight. The Working Group recommends enhancing the policy role of congressional committees by allocating additional resources to them and altering their operations.

2. Expand the resources available to Congress for drafting legislation, crafting clear language, and understanding constitutional and legal dynamics around proposed bills.

The Supreme Court expects greater clarity and precision from Congress in how it writes laws and delegates implementation authority to regulatory agencies. Achieving this—and addressing other aspects of Court jurisprudence—will require additional resources to build capacity so legal and constitutional issues can be better addressed.

3. Strengthen the ability of Congress to provide guidance and direction regarding statutory interpretation and congressional purpose.

Interpretation of legislation passed by Congress will receive new emphasis following recent Supreme Court decisions. We recommend steps—such as clarification of definitions and new resources—that can bolster Congress’ role in how statutes are interpreted by others, particularly agencies, courts, other government bodies, and the private sector.

4. Enhance the ability of Congress to work productively with regulatory agencies by updating laws, particularly agencies’ authorizing statutes.

Congress frequently fails to reauthorize programs and agencies in a timely manner, leaving a vacuum of interpretation and implementation. We recommend actions—such as retrospective review by agencies—to enhance the learning process for Congress and agencies, so that the legislative process and subsequent implementation by the executive branch can be improved.