Washington is not ready for the tsunami of lawsuits and regulatory anarchy that may soon be headed its way.
Any day now, the Supreme Court is expected to release an opinion that could kill or limit the Chevron doctrine. Named after a case from 1984, that doctrine directs judges to defer to a federal agency’s reading of an ambiguous statute so long as it is “reasonable.”
Conservative critics have long maintained Chevron deference unconstitutionally restricts the judiciary’s ability to offer the final say on the law and encourages Congress to abdicate its lawmaking responsibilities by writing vague statutes that leave executive branch officials to deal with the devilish details. Meanwhile, defenders of Chevron deference say it’s perfectly constitutional and allows regulators to quickly adapt to a changing world.
As they wait for the court to decide Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, they agree on one thing. The cases may be about federal monitors on Atlantic herring trawlers, but the outcome could send shock waves far beyond New England’s fishing grounds and unleash a flood of litigation as industry groups challenge regulations by the boatload.
“Congress would need to adopt a more precise approach to legislation, making sure that laws are written with enough specificity to guide implementation without relying on agency interpretation,” said Rep. Derek Kilmer, D-Wash. “Not doing that would potentially mean ceding an extraordinary amount of power to the judiciary.”
Observers across the political spectrum echo Kilmer, urging Congress to prepare. The question, they say, is whether it actually can.
“There’s a lot of regulation being produced … because there is such a huge government in so many policy areas,” said Kevin Kosar, a senior fellow at the American Enterprise Institute. “For Congress to take up this extra task, which they’ve largely delegated away, they are going to have to staff up.”
Experts generally agree that in the wake of Chevron’s demise, federal circuit courts could create a messy hodgepodge of conflicting decisions, with regulations upheld in some areas but overturned elsewhere. Such circuit splits normally get resolved by the Supreme Court, but the expected volume of regulatory challenges would likely overwhelm its docket.
That chaos can be avoided, but only if Congress can write statutes, and amend those already on the books, with a level of specificity that forecloses the legal ambiguities that provide openings for lawsuits.
For years now, Kosar has proposed creating a nonpartisan regulatory affairs office for Congress, similar to the Congressional Research Service or Government Accountability Office, to help lawmakers draft more technically precise statutes and perform more substantive executive branch oversight. Kilmer looked into the idea when he led the House Select Committee on the Modernization of Congress, and the GAO released a study last year considering it alongside other options for increasing lawmaking capacity.
Even though many court watchers expect the Loper Bright decision will gut Chevron — the only question is whether the Supreme Court will explicitly overrule the doctrine or just limit its reach — Congress has yet to take steps in anticipation of such a watershed ruling.
“People on the Hill, particularly in the Republican Party, are loath to be creating a new bureaucracy — or blamed for doing that by primary voters,” said Kosar.
Kosar estimates that setting up a new regulatory office might cost between $50 million to $100 million per year, a fraction of the legislative branch’s $7 billion proposed budget. Short of that, Congress could look to approve funds for more staff at CRS, on congressional committees and in individual offices, said Gideon Cohn-Postar, legislative director at Issue One, a nonpartisan group that advocates for government transparency.
“The only problem is that would be for [fiscal] 2025,” Cohn-Postar said, noting that neither the Senate’s nor the House’s version of the Legislative Branch appropriations bill currently includes such additional funds.
Along with the additional payroll, Cohn-Postar suggested lifting the cap on the number of staff in an individual House member’s office, which is currently set at 18, to allow for more legislative experts.
But Rep. David Valadao, chairman of the House Legislative Branch Appropriations Subcommittee, shot down the idea of staffing up in response to the forthcoming ruling.
“I would argue that we probably just need to slow down on passing more regulations and take more time and more care in the drafting of that language before I would talk about hiring more staff,” the California Republican said.
His counterpart, Senate Legislative Branch Appropriations Subcommittee Chairman Jack Reed, D-R.I., said adding staff would be an option if the high court eviscerates Chevron as expected, but he doubts Republicans would go along. “What would happen, which might be their purpose, is we’d be in this deadlock where we can’t give the agencies effective guidance for legislation. So they can’t enforce it,” Reed said. “So the industries [would say], ‘Yay, there are no more rules.’”
‘A lot of uncertainty’
One group not standing idly by is industry. The Balancing Act Project, a new advocacy group created by the PR pros at Nahigian Strategies, held its first event in late May to imagine a post-Chevron world, a roundtable in Salt Lake City with Utah industry groups and the state’s all-Republican congressional delegation.
While the uncertainty would be bad for some businesses, the upshot of removing Chevron deference is that more legal challenges would lead to more revoked regulations, absent Congress stepping in to restore court-repealed rules or proactively clarify ambiguous statutes.
During a phone call earlier that week, Ken Nahigian said the mission was simply to get lawmakers talking about writing more precise laws, not necessarily to take a machete to the Code of Federal Regulations. “We’re not anti-regulation. Regulation is essential,” he said. “We want to have a conversation about accountable [policymaking] and rulemaking.”
“If I’m a [Democratic] legislator, I’d want to maintain my statutory intent. And I’d also want to make sure conservative federal judges aren’t determining these issues,” Nahigian said. “If you’re a Republican, you want small government, you want agency accountability, you want to maintain your congressional intent. So, I just feel like this is a bipartisan thing.”
Still, it’s clear that the Balancing Act Project sees the possibility for paring down the regulatory state. In advertising the event, the group wrote, “The potential reversal of Chevron deference could empower businesses affected by regulations to challenge decisions made by agencies, ultimately giving citizens and businesses a stronger voice through their elected representatives.”
And at the roundtable itself, speaker after speaker talked excitedly about how the decision could reduce federal oversight. “This is an opportunity to reshape the entire regulatory process in the United States, but we need Congress to act,” said Utah Republican state Rep. Robert Spendlove, a senior economist at Zions Bank.
Even if Congress added staff, polarization might keep Congress from acting, Nahigian said. “If our politics allowed for conversations to really get to better legislation, the intent would be clear,” he said. “But we tend to pass very vague, abstract types of legislation, and then we use agencies as a backstop. That’s our problem.”
He thinks, however, that ending Chevron would force lawmakers to get into the nitty-gritty, if only because the business world would demand it.
“You’re going to have regulated entities that are completely mired in litigation, and that’s going to create just a lot of uncertainty within our economy. And then you’re going to have those entities most likely lobbying Congress to try to correct that problem because it’s really slowing down their enterprise,” he said. “I mean, follow the money, right?”
While Nahigian, a former Senate Commerce Committee staffer, believes Congress already has the technical ability to drill down into the details, others warn the capacity just isn’t there yet.
“Handling an increased workload to address rulemaking would be undeniably challenging under the current structure,” said Kilmer. “But I’m hopeful about the institution’s ability to improve.”
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