The Supreme Court’s “Chevron” ruling means changes in the writing of law

The Supreme Court’s decision Friday sets an uncertain and more difficult path for Congress to shape how the federal government implements laws on important issues such as the environment, health, immigration and others, lawmakers and legal experts said.

The opinion invalidated a long-standing legal doctrine called the Chevron deference rule, which required judges to follow the agency’s interpretation when dealing with rules involving unclear provisions.

Instead, the decision says judges should only show that deference when Congress explicitly says an agency can make its own decisions. The Supreme Court’s ruling will spark more regulatory litigation, experts said, but it will also disrupt the lawmaking process on Capitol Hill.

The Supreme Court’s opinion “provided no guidance, even approximate, for determining when Congress intends to delegate policymaking authority to an agency,” Nicholas Bagley, a law professor at the University of Michigan, posted on social media.

“The answer won’t always be clear; “Congress may want to delegate without saying ‘we hereby delegate to the agency,'” Bagley wrote. “Using words like ‘reasonable’ or ‘sufficient’ are clues, for example, and there may be many others.”

Tim Brightbill, a partner at Wiley Rein who specializes in trade law and served as legal counsel to former Rep. John J. LaFalce, D-N.Y., said removing Chevron introduces new complications to the congressional negotiations.

Brightbill said Democrats may seek more specificity following the ruling, while Republicans may prefer broader language that “gives courts more power to scrutinize agencies.”

“It depends on the rules, on who has the majority, but there are ways to use the decision to strengthen or weaken agency regulations,” Brightbill said.

Some GOP lawmakers who have been pushing for years to end Chevron’s operations welcomed the decision, calling it an end to federal agencies interpreting the law in a way that Congress did not intend.

Sen. Mike Lee, a Utah Republican, said the court’s decision is a first step for Congress to exercise more discretion when writing laws. In a series of social media posts, Lee said that for decades, Congress has passed “lazy” laws, often deferring decisions on details to agencies rather than making difficult decisions on their own.

“Instead of making laws, Congress has in many cases appointed … other legislators,” Lee said on the X website, formerly known as Twitter.

More difficult

Kaye Pestaina, vice president of KFF, a health policy organization, said Friday that the ruling could make it more difficult for Congress to pass laws if they have to include minute details in them.

Congress often intentionally leaves loopholes in legislation so agencies can craft regulations, Pestaina said. That has made it easier for Congress to reach agreement on some complicated issues, but now it could expose agencies to lawsuits over the rules implementing those laws.

“There is no way to include all technical issues in the act. It may also make it more difficult for lawmakers to reach compromise on issues where more specificity and more detail is needed,” Pestaina said. “And when it comes to health care, there will be an impact on the consumer.”

David Doniger, senior staff attorney at the Natural Resources Defense Council, said he was more concerned about Congress’s ability to pass laws in the future that could withstand scrutiny under the new standards set by the court.

“Because Congress, when they write these laws, they know they can’t anticipate everything. They can’t get to everything in real time. You’re lucky if Congress only visits the bill every 10 years,” Doniger told reporters Friday.

“So we’re going to see a lot more obstacles to effectively protecting ourselves from the new problems that the world throws at us,” Doniger said. “And there are a lot of them.”

Just writing the new legislation could be a challenge, said J.D. Rackey, a senior policy analyst at the Bipartisan Policy Center and a former staff member on the House Select Committee on Congressional Modernization.

Rackey said Congress does not currently have the staff or technical expertise to write more refined legislation. Often, committees do not have enough staff or the depth of political knowledge to write the kind of specific legislation that would survive the scrutiny of the current Supreme Court.

“Even if you want a smaller government, if you want the government to do anything, this ruling requires Congress to be much more prescriptive and have the ability to do so,” Rackey said. “Beyond the broader political goals each side may have, this decision will have implications for future lawmaking.”

Rackey noted that the House recently “concluded” that Congress does not have the technical expertise to write legislation, and pointed to the more than 200 recommendations of the select modernization panel he worked on. Much of it has been implemented, he said, but “not enough to address this reality. But this sets the institution on a path to dealing with this problem.”

The process of writing legislation itself would also become more complicated, Rackey said, because lawmakers would no longer be able to rely on agencies to make potentially difficult decisions. Getting to the final results could mean longer negotiations, more difficult votes, more days in Washington and more resources for members and staff.

“I think the level of activity that Congress will have to show will increase, but I’m not entirely sure that in the hours after the decision was made they really reckoned with that reality,” Rackey said.

Future Activities

Democrats in Congress, the Biden administration and consumer and environmental advocates have criticized the Supreme Court for taking more power for itself.

White House press secretary Karine Jean-Pierre said the decision “sets our country back” and undermines the agency’s ability to use its expertise to protect the public.

House Judiciary Committee member Jerrold Nadler, D-N.Y., in a statement released Friday, called the ruling a “power grab” and argued that Congress should pass legislation (H.R. 1507) to strengthen the federal rulemaking process.

In a statement Friday, Senate Majority Leader Charles E. Schumer, D-N.Y., said Congress must take action to “stop the outrageous abuses of this brazen Court.”

“By overturning the Chevron decision, the Trump MAGA Supreme Court has once again sided with powerful special interests and giant corporations against the middle class and American families. “Their dogged momentum to overturn 40 years of precedent and impose their own radical views is terrifying,” Schumer said.

House Speaker Mike Johnson, Majority Leader Steve Scalise and Majority Leader Tom Emmer in a statement praised the end of the Chevron Doctrine, which “has led to a significant expansion of the federal government and a reduction in Congress’s role in the policymaking process.”

“Republican committees will provide oversight to ensure that agencies comply with the Supreme Court’s ruling and no longer exercise excessive interpretive discretion in administering the laws under their jurisdiction,” House Republican leaders said in a statement.

Rep. Mark E. Green, R-Tenn., said he would introduce legislation requiring the federal government to begin rolling back all agency rules maintained by Chevron unless Congress takes action to enforce them.

“Chevron Deference not only usurps Congress’s rulemaking authority, but gives unelected and unaccountable bureaucrats in Washington enormous control over the lives of Americans. My legislation seeks to correct this imbalance and restore Congress and the judiciary to their rightful places in our constitutional system,” Green said.

Green said that after Friday’s ruling, Congress needs to “step up its game” and write clearer regulations.

“We can no longer shrug off our responsibility as legislators. We must be committed to writing clear legislation. Congress has abdicated its role for decades, and it is time to change that,” Green said.

Jessie Hellmann assisted in the preparation of this report.