Will Congress Take the W on Chevron?

Making legislators decide regulations is good for democracy — if they actually do it.
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Imagine you are running a business in a heavily regulated industry — developing drugs, running a telecommunications network, producing power, or building cars. Obviously, in twenty-first-century America, as in any other developed country today, you are sure to be subject to scores of complicated regulations. But since we live under the rule of law, surely these regulations will need to be closely tied to the laws on the books, rather than just being the whim of some unelected bureaucrat.

Well, until last week, you couldn’t be too sure. Of course, everyone agreed that the laws passed by Congress must determine what kind of regulations could be set. But under a decades-old legal doctrine called Chevron deference, when bureaucrats made their own reasonable readings of ambiguous statutes setting out their responsibilities, judges were supposed to defer to their interpretations. Because of the bureaucrats’ supposed expertise, both in complicated scientific and technological matters and in matters of workaday administration, judges applying Chevron were to treat them as occupying a superior position for making sense of the law. These executive branch actors couldn’t get away with entirely mangling the law, but they could bend it quite a ways in their preferred direction. Businesses unhappy with their readings were mostly out of luck.

In other words, Chevron deference was a central pillar of America’s technocracy.

As of June 28, when a 6–3 Supreme Court ruling decided Loper Bright Enterprises v. Raimondo, Chevron deference is no more. America’s federal judges are no longer to give bureaucratic agencies the benefit of the doubt. Rather, they are charged with rendering their own independent judgment of what statutes mean. They can still listen to agencies’ arguments, but they are not to automatically credit them.

How much of a revolution is this?

The demise of Chevron is unquestionably a huge shift for administrative law. Over the last four decades, the decision had come to be the foundation for encounters between the regulators and the regulated. We live in a litigious age, where agency actions are almost all brought into court. Chevron stood for the proposition that agencies could take the leading role in figuring out their own legal powers and responsibilities, as long as their actions were not egregiously contrary to statutory language. When judges evaluated agency actions for “reasonableness,” the parties challenging how they were being regulated had a high bar to clear, while government lawyers had a low bar, and generally little trouble clearing it.

Of course, it is not as though agencies have won every fight for the last four decades. Rather, application of Chevron, which involved a two-step test for statutory interpretation, was patchy and riddled with exceptions. Chief Justice John Roberts’s majority opinion in Loper Bright decries how an original two-step became “a dizzying breakdance,” and thus “an impediment, rather than an aid” to making sense of the law. The last time the Supreme Court itself decided a case based on Chevron was in 2016. Loper Bright clarifies and accelerates a shift already underway, one that reflects diminishing trust in technocratic policymakers, whose claims have often unconvincingly cloaked thoroughly political decisions in the guise of scientific expertise. The presumption in favor of executive branch actors has been eroding for some time; now it is decisively repudiated.

Now what?

The implications of Chevron’s demise are not entirely clear. Critics of the current Supreme Court (most often, but not only, on the left) say that the real dynamic at work here is painfully simple: the Republican appointee–heavy judiciary is grabbing power from the expert-guided executive agencies in order to thwart legitimate progressive policymaking initiatives. As Justice Elena Kagan puts it in her dissent, “A rule of judicial humility gives way to a rule of judicial hubris.” When the toppling of Chevron is joined to the recent development of the Major Questions Doctrine — which says that for especially consequential executive actions, especially clear congressional authorization is needed — Kagan and her fellow critics fear that the judiciary is simply shrinking the scope for state action to a vanishing point.

These critics assume that the standard way of dealing with policy challenges is through executive branch action. In their telling, the contemporary Congress is a noisy nullity, incapable of actually giving direction to the executive on most matters of consequence because of persistent gridlock. Meanwhile, they justify their position as actually defending the prerogatives of legislators by saying that earlier Congresses made entirely reasonable choices to lodge authority in executive branch actors, often by using ambiguous statutory language. A legislative–executive alliance in favor of getting things done is being displaced in favor of a judicial power committed to policy stagnation — one that will be friendlier to regulated industries.

This is a deeply cynical position — but it is not obviously wrong. Especially in the short term, when we think about what the Biden administration can still get done in its first term, thinking of the Roberts court as a major obstacle is fair enough.

But those of us who will defend the Court’s ending of the Chevron era have a more hopeful vision for the long run. Put simply, we think that it is healthy if Americans stop imagining that policymaking ought to originate in the executive branch. We think the ambiguities and silences of past lawmakers are not a sufficient foundation for the ambitious plans of current technocrats, at least not if we want the public to find governance legitimate in this difficult political environment. We think that, if there is less expectation that agencies can improvise, there will be a stronger incentive to work things through the political processes of Congress. And we don’t think that’s an obviously futile thing to try.

Gridlock is not an immovable fact of nature; it is an equilibrium outcome of political decisions. Each side in a negotiation has beliefs about what it can get under the legal status quo, and those beliefs condition their willingness to compromise. Chevron made it too attractive for the president’s partisan allies to simply walk away from the out-party, insisting on their unreasonableness. Less-deferential courts will mean that there is more incentive to stick it out and figure out mutually acceptable accommodations.

That is the theory, anyway, but it is far from a sure thing. The forces pushing against bipartisan compromise are very powerful in the current environment, and there are many ways to blow up attempts at constructive policymaking for anyone (and especially partisan leaders) who would prefer to leave the status quo in place. There are many legislators who want to embrace their branch’s responsibilities, but the burden is on them to change their institution’s habits.

There are many ways Congress can miss the boat. The Republican Study Committee recently issued a memo asserting that overturning Chevron “will be a landmark decision which could open the door to Congress reclaiming its Article One authority.” Amen to that. But as the memo continues, one begins to see the critics’ point. It says this is also a moment for “rolling back Biden’s woke and weaponized administrative agenda, and providing for further pro-growth regulatory policy.” The way they propose to do this is to pass a long list of shopworn “bold regulatory reforms” that largely target the workings of the executive branch. Most of these have no prospects for advancement in this divided Congress. Meanwhile, the memo shows little awareness that if Congress wants to take up Loper Bright’s challenge and strike a blow on behalf of self-government, there is no substitute for legislating more and legislating better. Congressional reformers will need to turn their attention toward themselves, and get beyond fantasies of full-on partisan reconstructions of the administrative state, which few people are clamoring for.

If legislators can muster an appropriate jealousy for their own constitutional prerogatives, they absolutely can do better. They can invest more in their institutional capacities to deal with complicated problems, so that they can write specific language that settles issues rather than handing them off to bureaucrats or judges. They can reinvigorate the committee system that is best suited to develop careful law, including by making sure that it can steer the congressional agenda. They can give more tools to bipartisan coalitions confronted with skeptical partisan leaders.

None of this is in most legislators’ muscle memory. None of this will win them quick political rewards. None of this will happen by accident. No members of Congress, from either party, will be getting Loper Bright checks in the mail. The end of Chevron is an invitation for a healthier Congress to lead us into a healthier politics and more legitimate policymaking. But it is up to members of Congress to accept.

Philip Wallach, “Will Congress Take the W on Chevron?,” TheNewAtlantis.com, July 3, 2024.
Header image: Haldane Martin / Flickr (CC BY 2.0)

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