Congress should get ready for a post-Chevron America
For much of the 20th century, conservatives have criticized the administrative state. At bottom, they are troubled that executive agencies can issue regulations that go beyond the plain text of statute.
A president is supposed to “take care that the laws be faithfully executed,” according to the U.S. Constitution’s Article II. Yet, president after president has succumbed to the temptation to avert dealing with Congress by issuing regulations far beyond the scope of a law. Often, an aggrieved private party will file suit, and the federal courts are left to decide if a president has gone too far.
Sometimes, presidents get slapped down. President Joe Biden, for example, had the Department of Education try to cancel billions in student loan debt by relying on a two-decade-old law issued shortly after the attacks of 9/11. The only thing that stopped him was the Supreme Court, which ruled against the administration.
Often, however, the judiciary lets the agency action stand and will do so based upon “Chevron deference.” This juridical test was announced in Chevron USA, Inc. v. National Resources Defense Council, Inc. (1984). It holds that when an agency is confronted with statutory ambiguity its determination of the statute's meaning will be deferred to so long as it is reasonable.
On the one hand, Chevron deference has been a good thing. It increased the predictability of judicial rulings by limiting the grounds judges use to review cases. The country is not well served by judges behaving like legislators and deciding complex regulatory matters ad hoc. On the other hand, the Chevron decision has encouraged presidents and regulatory agencies to be more aggressive by setting an easy threshold — reasonableness.
Taking this all in the reader might wonder, “Why isn’t Congress deciding these legislative matters?” Why, indeed, and the Supreme Court also seems to be pondering this question.
Earlier this year it listened to the complaints of fishermen who objected to being forced to pay for federal inspectors who visit their boats. The 1970s-era law does not clarify who should pay for the National Marine Fisheries Service’s inspection costs, but the government thinks it is reasonable for herring anglers to do so.
Conservatives generally are elated and hope that the court’s forthcoming decision in Loper Bright Enterprises v. Raimondo will eliminate Chevron deference and curb agencies’ regulatory authority.
But then what? Nobody on the political right is quite sure, so far as I can tell. It’s a bit like a dog catching the bumper he has been chasing.
Our separation of powers system abhors a vacuum. If one branch is not exercising legislative power then another will. A Supreme Court ruling against Chevron will put legislative power up for grabs. One would hope that conservatives would see the demise of Chevron as an opportunity to shift legislative authority back to the first branch of government.
The executive branch has run circles around Congress on regulatory matters owing to the fact that it employs legion wonks and legal mavens to craft rules. Regulation is complex.
For example, a proposed rule by the Centers for Medicare and Medicaid Services to modify the Health Insurance Portability and Accountability Act National Council for Prescription Drug
Programs Retail Pharmacy Standards” runs 27 pages. Understanding it would require significant knowledge of several federal health programs and the analytical capacity to second guess the rule’s $386.3 million cost to pharmacies, pharmacy benefit plans and chain drug stores.
Congress has auditing and program analysis geeks in the Government Accountability Office, policy nerds at the Congressional Research Service and budget wonks in the Congressional Budget Office. But it has no dedicated corps of regulatory wonks who can parse executive branch rules, second guess agencies’ cost-benefit analyses and advise lawmakers on how to write statutes less susceptible to exploitation by agencies. Too frequently, legislators rely on lobbyists — who have a stake in the outcome — to advise them on this lacunae.
This is why my colleague Philip Wallach and I advised legislators to create a Congressional Regulation Office to employ nonpartisan regulatory policy wonks who could advise legislators. Knowledge is power, and if conservatives do not want unaccountable bureaucrats and judges to wield legislative authority they need to give Congress the expertise it needs.
Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He hosts the Understanding Congress podcast and edits UnderstandingCongress.org.
Date: |
Topics
Filter
-
With YouTube Booming, Podcast Creators Get Camera-Ready
To some, “video podcasts” are a contradiction in terms. That hasn’t made them any less popular.The New York Times - Top stories -
PEN America Has Stood By Authors. They Should Stand By PEN.
PEN America needs to ensure more than one point of view is heard on even the most contentious issue.The New York Times - Top stories -
Europe’s Policymakers Get Ready to Lower Rates, Regardless of the Fed
European Central Bank governors are highlighting cooler inflation as a sign the bank could cut interest rates before the Federal Reserve.The New York Times - Business - Federal Reserve -
Europe’s Policymakers Get Ready to Lower Rates, Regardless of the Fed
European Central Bank governors are highlighting cooler inflation as a sign the bank could cut interest rates before the Federal Reserve.The New York Times - Top stories - Federal Reserve -
Binance Founder Should Get 3 Years in Prison, Prosecutors Say
Lawyers for Changpeng Zhao, the founder of the crypto exchange Binance, countered that he should receive no prison time.The New York Times - Tech -
Binance Founder Should Get 3 Years in Prison, Prosecutors Say
Lawyers for Changpeng Zhao, the founder of the crypto exchange Binance, countered that he should receive no prison time.The New York Times - Business -
What airline passengers should know about their rights to get refunds
New Transportation Department rules could save consumers $500 million annually, Transportation Secretary Pete Buttigieg said.CBS News - Top stories -
Why you should get a home equity loan before May
If you're thinking about getting a home equity loan, you may want to do so before May. Here's why.CBS News - Top stories -
Women should give up vaping if they want to get pregnant, study suggests
Research finds hormone that indicates fertility at lower levels in vapers and tobacco smokers. Women should give up vaping if they are hoping to get pregnant, according to a study that suggests it may affect fertility.. In the first research to ...The Guardian - World -
Binance Founder Should Get 3 Years in Prison, Prosecutors Say
Lawyers for Changpeng Zhao, the founder of the crypto exchange Binance, countered that he should receive no prison time.The New York Times - Tech
More from The Hill
-
Riot police drag away protesters at University of Texas as Gaza tensions flare
State troopers in riot gear moved on Monday afternoon to clear out students attempting to occupy a quad at the University of Texas at Austin. Dozens of protesters were arrested on site, escalating tensions that began on Wednesday when the ...The Hill - Politics -
Jill Stein accuses police of assaulting her at protest
Green Party presidential candidate Jill Stein on Sunday alleged police assaulted her and other demonstrators shortly before being arrested at a pro-Palestinian protest on the campus of Washington University in St. Louis. “Basically, the police ...The Hill - Politics -
US finds Israeli military units violated human rights
Welcome to The Hill's Defense & NatSec newsletter {beacon} Defense &National Security Defense &National Security The Big Story US finds Israeli military units violated human rights The State Department has determined that at least five Israeli ...The Hill - Politics - Israel -
Evening Report — Protests continue to spread on college campuses
A quick recap of the day and what to look forward to tomorrow {beacon} Evening Report © AP Pro-Palestinian protests escalate on college campuses Hundreds of students have been arrested on college campuses across the country as ...The Hill - Politics -
FCC fines wireless carriers
Presented by Microsoft — {beacon} Technology Technology PRESENTED BY The Big Story FCC fines major mobile carriers $200M The Federal Communications Commission (FCC) issued a fine totaling $200 million to the nation’s four largest mobile ...The Hill - Politics