The Foundation for American Innovation and the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State are pleased to publish Congress after Chevron: Legislative Responses to Changing Deference Doctrines, a symposium featuring new papers that address the challenges and opportunities Congress faces after the overturning of Chevron deference.

Click here to download the complete collection of papers, or read each paper individually below:

• "Congressional Responses to Loper Bright," by Michael A. Fragoso
• "Delegation-Dependent Deference: Reinforcing State and Federal Separation of Powers and Avoiding Loper Limbo by Adopting Delegation-Dependent Deference," by Jonathan Wolfson and Tanner Jones
• "The Post-Chevron Case for More Case-by-Case," by Neil Chilson
• "Lessons from OIRA Review for Congress’s Use of Agency Expertise," by Paul J. Ray
• "Government by Committee: (Re)centering Congressional Committees in the Policy Process," by John D. Rackey and Lauren C. Bell
• "A Renewed Regular Order of Business for the House of Representatives," Kacper Surdy

Foreword

The Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo to reverse its 1980s-era Chevron precedent, which required federal judges to defer to regulatory agencies’ interpretation of ambiguous laws when adjudicating disputes under them, marks a major shift in the balancing of America’s separation-of-powers system. The Court’s ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. required lower court judges to follow a “two-step approach” when deciding federal regulations cases. The Court instructed judges to determine if Congress had taken an explicit position. If Congress hadtaken such a position, then the judge had to reject any agency interpretation contradicting Congress’s clear intent. The Supreme Court barred lower court judges from imposing their interpretation of a statute, rather than a regulatory agency's interpretation, if Congress did not address the issue explicitly. In those instances, judges were instructed to defer to agency officials if their interpretation was based on "a permissible construction of the statute.”

As the papers in Congress after Chevron: Legislative Responses to Changing Deference Doctrines make clear, the Supreme Court cannot end the federal government’s dysfunction by itself. Shifting the locus of policymaking back to the people’s elected representatives in Congress ultimately requires those representatives to stop passing the policymaking buck to regulatory agencies in the first place. This symposium offers a guide for lawmakers to rebuild Congress’s lawmaking and oversight capacity.

Chevron’s demise increases the likelihood that Congress will reassert itself in policymaking. It makes it harder for members of Congress to evade their constitutional obligation to make laws. Moving forward, lawmakers should feel pressured to be more specific in how they craft legislation, delegate authority, and conduct oversight. They can no longer count on the courts to reliably defer to regulators to fill in the blanks of ambiguous legislation for them. The political cost of legislative ambiguity in a post-Chevron world could be high if courts’ decision not to defer to regulatory agencies’ interpretations causes service disruptions for lawmakers’ constituents.

The Court’s decision to end Chevron deference did more than remind lawmakers of their policymaking responsibilities. It also raised awareness of the need to increase their capacity to make policy. The problem for lawmakers, however, is that their policymaking muscles have atrophied in the 40 years since the Court first established its Chevron precedent. The Court's decision to reverse that precedent allows lawmakers to strengthen those muscles. It also highlights the need for a reform agenda to ensure that lawmakers are ready for the challenges ahead. We hope that this symposium can serve as a first step toward developing that agenda.

Demonstrating the need for such a reform agenda is critical because ensuring that Congress can thrive in a post-Chevron world will cost money, which lawmakers have long been resistant to spend on themselves. The Court's Loper decision helps advance that agenda by giving reformers in the House and Senate a politically expedient reason to reverse declines in staff capacity on committees and in member offices and to make needed investments in new technologies. It also makes it easier for lawmakers to justify investments in legislative service organizations such as the Congressional Research Service and the Government Accountability Office. It highlights the importance of improving Congress's oversight capacity by assisting lawmakers in conducting cost-benefit analyses of proposed regulations, performing retrospective reviews of regulatory actions to evaluate their effectiveness, and identifying redundancies or conflicts across the regulatory landscape.

The end of Chevron deference creates an opportunity for lawmakers to make the federal regulatory process more accountable to the American people by increasing Congress's lawmaking and oversight capacity. This symposium shows the urgency, and possibility, of strengthening Congress's capacity and making America's separation-of-powers system more robust.