Ending Chevron Won’t Solve Congress’ Problems

Conservative critics of the administrative state are celebrating the Supreme Court’s recent decision to reverse a 1980s decision. Chevron precedent. In Chevron USA, Inc. v. Natural Resources Defense Council, Inc., the Court required district and appellate court judges to defer to regulatory agencies’ interpretations of the law when Congress’s intent was unclear. Conservatives say the Court’s order “Chevron “Deference” weakened American self-government and undermined the constitutional system of separation of powers by shifting the locus of policymaking from the legislative branch to the executive branch.

People of different political views recognized the importance Chevron fall. Even before the Court announced its decision, one conservative noted that “it would be difficult to overstate the impact that limiting or ending Chevron respect it would have on the size and powers of the regulatory state.” Another described the decision as “a huge step forward for self-government.” New York Times underscored the significance of the Court’s decision for conservatives more broadly, describing it as “a milestone in the conservative legal movement’s attack on the administrative state.” Even Mother Jones—a leading progressive publication—presented Chevron end as “a powerful blow to the administrative state.”

Many expect the Supreme Court’s decision to shift the locus of policymaking back to the elected representatives of the people in Congress. For example, Rep. Derek Kilmer (D-Wash.) noted that repealing Chevron will force the House and Senate “to take a more precise approach to legislation.” A Bipartisan Policy Center researcher expects “future rulemaking will have an impact on this decision” because “it requires Congress to be much more restrictive.” And Rep. Mark Green (R-Tenn.) suggested that Congress “can no longer shift the responsibility” to executive branch agencies to make public policy now that Chevron is no longer active.

But the Supreme Court alone cannot restore balance to the separation of powers. That is because the problem is Congress, not Chevron respect. Rather than forcing Congress to take a more active role in lawmaking, the Court’s decision to end Chevron it simply shifts the focus of policymaking from regulatory agencies to federal courts — and only in certain cases, when judges disagree with executive branch officials’ interpretation of the laws.

This Chevron Precedent

Supreme Court Chevron precedent required lower-court judges to use a “two-step approach” when deciding cases involving federal regulations. The court instructed judges to first determine whether Congress had taken an express position on the issue; if so, the judge must reject any agency interpretation that conflicted with Congress’s express intent. However, the Supreme Court prohibited lower-court judges from imposing their interpretation of a statute over a regulatory agency’s interpretation if Congress had not expressly addressed the issue. In such cases, judges were instructed to defer to agency officials as long as their interpretation was based on a “permissible interpretation of the statute.”

However, the Court reversed in Loper Bright Enterprises v. Raimondo, striking down the requirement that lower judges defer to regulatory agencies’ interpretation of the law when deciding disputes under it. The Court found that Chevron deference violates the provision of the Administrative Procedure Act that requires judges to decide for themselves whether executive officials are acting in accordance with the law. In this way, “Chevron prevents judges from making judgments.”

Post-Chevron World

However, after-Chevron the world may not be so different. Written by Chief Justice John Roberts, the Court’s opinion focuses almost exclusively on how federal judges should handle regulatory disputes in specific cases in the future. And whatever the implications of the Court’s decision for the outcome of those disputes, the current trajectory of the administrative state is unlikely to change more broadly. That’s because federal judges have historically shown “deference” to the interpretations of executive branch officials when deciding disputes under the law.

Congress will continue to shift policymaking responsibility to regulatory agencies absent major changes in its environment. Legislators may do so because they lack the resources to effectively legislate on highly technical issues or they may want to avoid making difficult decisions that could harm them in future elections. Whatever the reason, the Court’s decision to overturn Chevron does not fundamentally change the dynamics of the situation on Capitol Hill or change the motivations of lawmakers.

Congress must solve its own problems

People concerned about the administrative state should go to Congress, not federal courts, to rein it in. The Constitution gives Congress full authority to stop regulatory agencies from making policy without its consent. Lawmakers can use budget authority to block officials from enforcing rules they don’t have statutory authority to do so. The Senate can use its advice and consent authority to make it harder for the president to install officials who flout Congress in important positions at regulatory agencies.

The fact that Congress refuses to use its power to control the administrative state suggests that Chevron deference is not responsible for the sorry state of America’s separation of powers. Federal judges have not allowed “the executive branch to assume powers that Congress never authorized”—Congress did.

The Constitution does not give federal judges the authority to review disputes between Congress and the president. To suggest otherwise puts federal judges outside the separation of powers—and that view, more than Chevron respect, undermines the Constitution.