GOP lawmakers see post-Chevron opportunity to ‘retake’ power from regulatory agencies. Experts doubt it’ll work

The Supreme Court recently overturned a 40-year-old precedent at the core of how federal agencies issue regulations. Now Republican lawmakers are looking at more ways to challenge agency rulemaking.

In a 6-3 ruling last month in the case Loper Bright Enterprises v. Raimondo, the Supreme Court eliminated Chevron deference — a legal precedent since 1984 that required judges to defer to an agency’s interpretation of relevant laws when its regulations are challenged in court.

Legal experts are still puzzling out what will change for regulatory agencies following the court’s decision.  But Republican lawmakers aren’t wasting any time planning out subsequent steps to roll back the administrative state.

Sen. Eric Schmitt (R-Mo.) is leading colleagues in letters to 101 agencies that have published more than 50 rules since 2000. The lawmakers are “demanding answers on how current regulatory processes will be handled following the Loper Bright decision.”

Republican senators are also backing the Separation of Powers Restoration Act, a House-passed bill that would codify an end to Chevron deference.

The senators have also launched a working group meant to explore other ways to challenge the administrative state.

Schmitt said these efforts are meant to “retake legislative authority away from administrative agencies and place it back where it belongs: the Article I branch.”

Meanwhile, the top Republicans on two House committees are looking for agency regulations that might be challenged following the court’s ruling.

House Transportation and Infrastructure Committee Chairman Sam Graves (R-Mo.) joined House Oversight and Accountability Committee Chairman James Comer (R-Ky.) in asking the Environmental Protection Agency, and the departments of Transportation and Homeland Security about regulations or regulatory decisions made under the Biden administration.

The chairmen say some of these agency rules are based on interpretations of the law that could be challenged following the Supreme Court’s ruling.

“The Biden Administration has promulgated far more major rules, imposing far more costs and paperwork burdens, than either of its recent predecessor administrations,” Comer and Graves wrote.

Despite lawmakers’ renewed interest in the topic, policy experts and former lawmakers say Congress currently lacks the necessary bandwidth to take back some of the regulatory authority they ceded to the executive branch over the years.

Former Sen. Toomey (R-Pa.) said lawmakers, following the Supreme Court’s ruling, may renew efforts to pass the REINS Act.

The bill, which passed the House in May 2023, would require Congress to vote on major agency regulations before they go into effect.

“At a minimum, you ought to have this rulemaking require the affirmative action of Congress. And then the American people can hold Congress accountable if it doesn’t like the rule. It can take that out on its member of Congress, as well it should. But what do you do when the EPA overreaches the Clean Water Act, or when the SEC decides it’s going to prevent a whole new technology like blockchain from even being able to take hold. And the list goes on and on,” Toomey said Tuesday.

Toomey, speaking at a “Life After Chevron” event hosted by the American Enterprise Institute and the Brookings Institution, said some agencies — including the Federal Trade Commission, Consumer Financial Protection Bureau and Securities and Exchange Commission — are taking on regulatory and enforcement activities that stray from what they’re authorized to do under the law.

“We have agencies whose leaders have decided they’ve got an agenda that they’re pursuing. They’re not there to impartially implement the laws that pertain to their jurisdiction. Rather, they’re there to implement a particular agenda. They hire very capable, very creative attorneys to go out and justify somehow what it is that they want to do,” Toomey said. “They discover some power that no one previously had discovered in authorizing legislation, and they say, ‘There you go, that’s what authorizes me.’”

But beyond reintroducing the legislation in the next session of Congress, following this year’s elections, Toomey said Congress likely doesn’t have the capacity to take on a greater role in the rulemaking process.

“Congress has other bigger problems,” he said. “I wouldn’t expect a big change in behavior in Congress. I don’t think the agencies will start to change their behavior. I think they’ll be a little less ambitious in this regard.”

AEI Senior Fellow Philip Wallach said lawmakers went on a “letter-writing blitz” following the Supreme Court ruling, with the goal of challenging agency regulations.

“Basically, the approach is to send out a letter and say, ‘Hey, now that Chevron is gone, you’d better go back and look at what you did and fix it, because we know that you were getting away with murder before, and now you’ve got to go back and clean up your act.’ Well, the spirit of that is wrong,” Wallach said.

“The thing we need most is for Congress to realize that it’s on them to shoulder their constitutional prerogatives,” he added. “There’s such a tendency for legislators, when they want something done, to write a letter to the executive branch and say, ‘I’m a congressman, listen to me. Do this with your executive branch authority. And even this, where we say you’ve been abusing your executive branch authority, the reaction is, ‘You go fix it, executive branch.’ Congress has to take it upon itself to fix it. You can’t just say, ‘Well I think you’re using the Clean Air Act wrong, let me shake my fist some more about it. Well, go ahead and rewrite the act, and be more specific about what you wanted.”

AEI Senior Fellow Kevin Kosar said the REINS Act could give lawmakers a greater say in the federal rulemaking process.

“It’s a way to force legislators out of this unhealthy dynamic,” Kosar said. “What they frequently do is they let the executive branch make policy decisions and then, if they like them, they cheer. If they don’t like them, they hoot at them until you get somebody new in the White House who decides to switch regulations on certain topics like immigration, for example. And again, there’s cheers from some, hoots from others. Inevitably, there’s a court case. That’s what happens when legislative power seeps away from the legislative branch. You seldom get a healthy resolution of a tough issue.”

However, Kosar said the REINS Act also creates the possibility that lawmakers don’t put pending rules to a vote — stalling them from going into effect.

“If they don’t put it on the calendar, does nothing happen? I think the answer is, yeah, nothing happens. So where does that leave the agency? Well, it’s in a weird limbo, where presumably, it’s going to go back and create a new regulation, which could be substantially similar. Or they could try to break it up into pieces and therefore get it under the limit and work it through,” he said.

Wallach and Kosar co-wrote a 2016 article proposing the creation of a Congressional Regulation Office, which would give the legislative branch the capacity to analyze agency rulemaking the same way the Congressional Budget Office reviews the federal government’s finances.

Absent that kind of legislative branch agency, however, Kosar said Congress doesn’t have the time to analyze the thousands of rules agencies propose every year.

“Regulation is a very tough thing, and if Congress is going to move it into its workflow, well guess what? Congress’ workflow right now is already kind of spilling over,” Kosar said. “If you’re going to lean in on regulation, you’re going to need help, because you can’t just pick this up and spitball it. It takes a lot of education, thinking, and expertise — and there’s just not enough of it on Capitol Hill. And as any congressional staffer will tell you, they don’t need anything more added to their work plate — they are plenty busy.”

Wallach added that the Supreme Court’s ruling — and the chief justice’s opinion — make it clear that agencies’ subject-matter expertise still matters when it comes to agency rulemaking.

“Expertise is not one thing. Agencies do have subject-matter domain expertise. The EPA has tons of experts on toxicity and all other sorts of aspects of environmental and health sciences. Agencies also have policy expertise and practical administrative expertise. But when you’re considering ambiguous statutes, you also need to think about legal expertise,” he said.

Roberts, in the court’s majority opinion, wrote that by overruling Chevron’s deference, “the Court does not call into question prior cases that relied on the Chevron framework.”

Rachel Augustine Potter, an associate professor of politics at the University of Virginia, said the court’s Chevron ruling and the Trump administration’s promise to bring back Schedule F — making it easier to fire federal employees in policymaking positions — indicates a multi-pronged attack on agency expertise.

However, she doubts Congress is willing to devote more time and resources to play a more active role in agency rulemaking.

“There’s not a lot of confidence that Congress is going to take up the mantle on legislative capacity front and take up the project of more detailed statues. Instead, what we heard about is about different bills that have been introduced that would constrain agency authority,” Potter said.

Potter said agencies might decide to staff up on lawyers, and that policymaking federal employees might leave their agencies.

“We might also see more exits from agencies, as career civil servants look at this landscape and say, ‘Wow I thought I was coming into this institution, which for a long time has looked a certain way and might be really different going forward. My expertise … might not be the same as what I thought it was when I took this job.’ There’s a lot of different implications, and I think we’re going to spend the next couple of months and years figuring out what agencies actually do.”

Copyright © 2024 Federal News Network. All rights reserved. This website is not intended for users located within the European Economic Area.