Congress is preparing for what could be a dramatic overhaul of its operations following a major Supreme Court ruling reining in the power of federal agencies.
In its Loper Bright v. Raimondo decision last month, the high court overturned Chevron deference, a 40-year-old legal doctrine that required the courts to defer to an agency’s interpretation of a law if Congress had left an issue ambiguous. The decision shifts much of the responsibility to write and interpret laws to the legislative and judicial branches.
The parties are responding to the ruling in opposing ways. Republicans are looking to review and roll back a number of regulations promulgated by the Biden administration, while Democrats are looking to reverse the Chevron ruling altogether, saying it could result in the judicial branch, rather than the executive branch, writing policy.
On Wednesday, House Majority Leader Steve Scalise (R-LA) led an effort with Republican committee chairs to send more than 150 pages of letters to agency leaders, requesting an account of the different rules pushed under the Biden administration since the beginning of the president’s term, and various lists of pending judicial challenges, final agency rules, and pending rulemakings that could be affected by the Loper Bright ruling.
The week of Chevron’s overturn, the conservative Republican Study Committee sent a policy memo to members outlining the congressional implications of the ruling, suggesting different actions to ensure legislating was reserved for Congress, and not the “administrative state.” The memo suggested committee heads “scour Biden-era regulatory actions” that could be considered for judicial review following the ruling. The letter also detailed measures that could codify the reversal of Chevron permanently and impose bold procedural reforms.
“We have this chance, this moment,” to enact procedural changes, Rep. Kevin Hern (R-OK), the RSC chairman, said. “If we don’t, then it could be another 40 or 50 years before it’s addressed.”
One of those procedural reforms is the REINS Act, which would establish a congressional approval process for a major rule. The bill defines a “major rule” as one that will have an annual effect on the economy of $100 million or more, impose an increase in costs for consumers or industries, have adverse effects on the market, or entail an increase in mandatory vaccinations. The bill, led by Rep. Kat Cammack (R-FL), passed the House last summer but stalled in the Democratic-controlled Senate.
Democrats, however, are looking to go on the defense, and enact bills that would bring Congress back to before the legal doctrine was overturned. Rep. Pramila Jayapal (D-WA) introduced a bill that would codify Chevron by limiting judicial interference with regulations while accelerating the rulemaking process.
Over on the Senate side, Sen. Sheldon Whitehouse (D-RI), a climate hawk and chairman of the Budget committee, said there will likely need to be a bill that clarifies the agency deference required when passing legislation. He also mentioned that lawmakers could also aim to amend the Administrative Procedures Act, which governs how federal agencies create and issue regulations, “to solve the problem that the court created.”
“It cries out for a legislative fix, and puts us in a stupid position in which some judge who knows nothing about the substance of a complicated, technical topic is now encouraged to substitute his own judgment for the person who spent their life studying this and knows exactly what the answer is,” Whitehouse told the Washington Examiner.
Whitehouse’s concerns mirror those of many within his party, who argue that the ruling allows for the judicial branch to have sweeping power in policymaking that they argue judges are unequipped for and exceeds their authority.
“Unelected bureaucrats who know what they’re doing are being replaced by unelected judges who don’t know what they’re doing,” Sen. Angus King (I-ME), an independent who caucuses with Democrats and sits on the Energy and Natural Resources Committee, said. “Do you think the Supreme Court is qualified to determine which pesticides are safe to use in Iowa?”
Whitehouse offered a separate anecdote, noting the Supreme Court had to revise its opinion in a separate ruling, Ohio v. Environmental Protection Agency, after Justice Neil Gorsuch referred five times to nitrous oxide, otherwise known as laughing gas, when he actually meant to refer to nitrogen oxide, an air pollutant that the EPA was aiming to curb.
“In the same week, they said, ‘You can trust us to replace the subject matter experts, and by the way, we don’t know the difference between nitrous oxide and nitrogen oxide,’ and that’s the important thing,” Whitehouse said.
Republicans, on the other hand, cheered the Loper Bright ruling, arguing that it curbs overreach by the executive branch.
However, lawmakers on both sides of the aisle have largely come to the same conclusion: that the ruling will put more emphasis on Congress to be more precise in the legislation it passes and raise the stakes for negotiating legislation.
“I think clearly the burden now is for Congress to put more effort and more detail into the measures that were passed,” Sen. John Hickenlooper (D-CO), a member of the Energy committee, said. “We’re probably going to have to go back and redebate some of these bills. So, that's going to be a big piece of work. Some of the committees are gonna have to step up.”
However, some Republican senators pushed back on the notion that Congress will have more of a prominent role to play following the Chevron overturn and instead asserted that Congress’s authority remains the same.
“What I’m not looking to do is replace one bureaucracy with another bureaucracy,” Sen. Kevin Cramer (R-ND), who sits on the Environment and Public Works Committee, said.
J.D. Rackey, a senior analyst for the Bipartisan Policy Center, said that it will likely take a situation in which the courts strike down bipartisan policies due to legislative vagueness to encourage Congress to beef up on policy experts to be more prescriptive in law-writing.
“Congress doesn't have the expertise and the capacity it needs when it wants to be more prescriptive, and so as this continues to play out, I don't think Congress is going to immediately change,” Rackey said.
Several lawmakers who spoke to the Washington Examiner, both Republican and Democratic, were hesitant or outright opposed to the idea of hiring more staff, especially when the effects of the Chevron ruling could take years to reverberate through the halls of Congress. Plus, House Republicans have been staunchly against further government spending.
According to the Congressional Management Foundation , the legislative branch in 2015 had several thousand fewer employees than in the 1980s and 1990s. Funding for the executive branch, on the other hand, was 120 times greater than the funding for Congress. However, the number of constituents the House represents has increased significantly over time.
Although the House Modernization Committee was formed in 2019 to help better this issue, “not nearly enough progress has been made” to provide Congress with expertise it may need to adjust to the Loper Bright decision, Rackey said. The panel was disbanded at the end of the 117th Congress but was brought back as a subcommittee under the House Administration Committee in 2023.
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Sen. Jack Reed (D-RI), the chairman of the legislative branch appropriations subcommittee, noted that the Chevron decision came after senators considered the bulk of the Senate’s bill to fund Congress.
“We think we’ve got adequate funding for the projected needs of the workforce for the next year," he said. “If there’s a noticeable need for an increased workforce, we’ll consider that. But right now, I think the agencies feel very comfortable.”
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