Will Congress Take Action on Chevron? — The New Atlantis

Imagine running a company in a heavily regulated industry—developing drugs, running a telecommunications network, producing energy, or building cars. Of course, in 21st-century America, as in any other developed country, you will undoubtedly be subject to dozens of complex regulations. But since we live under the rule of law, those regulations will surely have to be closely tied to the law, and not just the whims of some unelected bureaucrat.

Well, until last week, you couldn’t be too sure. Of course, everyone agreed that the laws passed by Congress had to specify what regulations could be made. But under a decades-old legal doctrine called Chevron respect, when bureaucrats themselves made reasonable interpretations of the vague laws defining their duties, judges were expected to defer to their interpretations. Because of the presumed expertise of bureaucrats, both in complex scientific and technological matters and in matters of day-to-day administration, judges applying Chevron were to be treated as occupying a higher position in giving meaning to the law. These executive branch actors could not get away with completely distorting the law, but they could bend it quite a bit in the direction they preferred. Companies unhappy with their readings were largely hopeless.

In other words, Chevron respect was the foundation of American technocracy.

On June 28, when the Supreme Court ruled by a 6–3 majority, Loper Bright Enterprises v. Raimondo, Chevron deference is nonexistent. American federal judges are no longer expected to give bureaucratic agencies the benefit of the doubt. Instead, they are charged with making their own independent judgments about the meaning of statutes. They can still listen to the agencies’ arguments, but they are not expected to automatically grant them credit.

How big of a revolution is this?

Fall Chevron is undoubtedly a huge change for administrative law. For the past four decades, this decision has become a staple of meetings between regulators and regulated entities. We live in an era of litigation, in which agency actions are almost all taken to court. Chevron advocated the idea that agencies could play a leading role in establishing their own legal powers and obligations, as long as their actions did not blatantly conflict with statutory language. When judges assessed agency actions for “reasonableness,” litigants challenging the way they were regulated had a high bar, while government lawyers had a low bar and generally had little trouble clearing it.

Of course, it’s not like agencies have won every fight over the past four decades. Rather, the application Chevronwhich included a two-step test of statutory interpretation, was fragmented and riddled with exceptions. The majority opinion of Chief Justice John Roberts in Loper Light decries how the original two-step has become a “breakdancing dizzying” and therefore a “hindrance, not a help” to understanding the law. The last time the Supreme Court itself decided a case under Chevron was in 2016. Loper Light explains and accelerates a shift already underway that reflects declining trust in technocratic decision-makers whose claims have often unconvincingly masked entirely political decisions under the guise of scientific expertise. The presumption in favor of executive-branch actors has been eroding for some time; it is now firmly rejected.

What now?

Consequences ChevronThe Supreme Court’s downfall is not entirely clear. Critics of the current Supreme Court (most often, but not exclusively, on the left) argue that the real dynamic at work is painfully simple: A Republican-led judiciary dominated by experts is taking power from expert-run executive agencies in order to thwart legitimate policy initiatives. As Justice Elena Kagan puts it in her dissenting opinion, “The principle of judicial humility is giving way to the principle of judicial hubris.” When the overthrow Chevron Related to the recent development of the principal questions doctrine — which holds that particularly important executive actions require especially express authorization from Congress — Kagan and her fellow critics worry that the judicial branch is simply limiting the scope of government action to the point of vanishing point.

These critics assume that the standard way to deal with political challenges is through the executive branch. They argue that the modern Congress is a noisy nothingness, unable to actually issue executive orders on most important matters because of its constant gridlock. They justify their position as effectively defending the prerogatives of legislators, saying that before Congresses have made perfectly reasonable choices to vest power in executive branch actors, often using ambiguous statutory language. The legislative-executive alliance of getting things done is being replaced by a judicial branch committed to political stagnation—one that will be more friendly to regulated industries.

It’s a deeply cynical position — but it’s not patently wrong. Especially in the short term, when we think about what the Biden administration can still do in its first term, it’s entirely reasonable to treat the Roberts Court as a major obstacle.

But those of us who will defend the Court’s termination of the case, Chevron era has a more hopeful vision for the long term. Put simply, we believe it would be healthy for Americans to stop imagining that policymaking should originate in the executive branch. We believe that the ambiguity and silence of previous lawmakers are not a sufficient foundation for the ambitious agendas of current technocrats, at least not if we want the public to recognize government as legitimate in this difficult political environment. We believe that if there is less expectation that agencies can improvise, there will be a stronger incentive to act through the congressional political process. And we do not believe that this is manifestly futile.

An impasse is not an immutable fact of nature; it is the result of a balance of political decisions. Each negotiating party has beliefs about what it can get from the legal status quo, and these beliefs condition its willingness to compromise. Chevron made it too attractive for the president’s partisan allies to simply defect from the outside party by insisting on their unreasonableness. Less obedient courts will mean there will be more incentive to persevere and find mutually acceptable accommodations.

That is the theory, but it is not a given. The forces pushing for bipartisan compromise are very strong in the current environment, and there are many ways to undermine attempts at constructive policymaking for anyone (especially party leaders) who would prefer to leave the status quo. There are many legislators who want to assume the responsibilities of their branch, but the burden is on them to change the habits of their institutions.

There are many ways Congress could miss the opportunity. The Republican Study Committee recently issued a memo arguing that overturning Chevron “will be a landmark decision that could open the door for Congress to regain its Article One powers.” Amen. But as the memo continues, the critics’ point of view begins to emerge. It says that this is also the time to “roll back the Biden administration’s woke and weaponized agenda and provide continued pro-growth regulatory policies.” The way they propose to do that is by passing a long list of well-worn “bold regulatory reforms” that largely concern the functioning of the executive branch. Most of them have no prospects of advancement in this divided Congress. In the meantime, the memo shows little awareness that if Congress wants to address Loper Lighta challenge and a strike on behalf of the local government, there is nothing better than more and better lawmakingCongressional reformers will have to turn their attention inward and go beyond fantasies of complete partisan reconstructions of the administrative state, for which few people are calling.

If legislators can muster the right amount of jealousy about their own constitutional prerogatives, they can certainly do more. They can invest more in their institutional capacity to deal with complicated problems, so that they can write specific language that resolves issues rather than handing them over to bureaucrats or judges. They can revitalize the commission system that is best suited to crafting careful legislation, including by making sure it can steer the congressional agenda. They can give more tools to bipartisan coalitions that face skeptical party leaders.

None of this is on most lawmakers’ radar. None of this will bring them any quick political rewards. None of this will happen by accident. No member of Congress, of either party, will receive Loper Light checks the mail. End Chevron is an invitation to a healthier Congress that will lead us to healthier policies and more informed lawmaking. But it is up to the members of Congress to accept it.