The Supreme Court will soon issue decisions in two cases that may revise a 40-year-old doctrine granting broad deference to federal agencies to interpret the laws passed by Congress.
Federal administrators have relied on this “permission space” when issuing regulations that dictate much of the ordering of American economic activity. Some experts expect that the upcoming rulings may narrow Chevron defense, which could reduce the heretofore fairly unrestricted agency of the administrative state. Federal regulators may be forced to ground new rules clearly in the language of federal law and, therefore, be prepared to make persuasive arguments in court that their choices are consistent with congressional direction as they respond to the inevitable legal challenges to existing and future regulations.
Parents may tell their children, “Don’t stay out too late.” The children, understanding that this is meant to establish a curfew but taking notice of the ambiguity, decide for themselves that any time before sunrise will suffice. Therein lies the conflict of interest—the party entrusted to carry out a task is also afforded the privilege of determining what the assignment actually is and will use any ambiguity toward their own ends. Economists call this a principal-agent problem, and it’s well understood in areas like business management, yet sadly overlooked in public administration.
This potential change may seem like an unalloyed win for the interests of democratic representation. But a narrowing of Chevron deference may also have a powerful secondary effect: putting more policymaking responsibility on the Article I branch of government, a muscle that has sadly atrophied over decades of disuse.
Since the 1980s, the Supreme Court doctrine known as Chevron deference has allowed the legislative branch to shirk many of its lawmaking responsibilities under the Constitution. Lawmakers have often written vague laws that grant, and often depend upon, broad interpretation to the executive branch. This has shifted much of the intensive work of policymaking from the elected legislators to the federal bureaucracy.
This period has coincided with a marked decline in Congress’s capacity and will to do much of the challenging work of legislating. For example, committee staffing in the House of Representatives has declined from a high of 2,233 in 1992 to 1,170 last year. The Congressional Budget Office has reported that Congress has allowed more than a thousand authorizations of appropriations to lapse and that federal taxpayers spent more than $500 billion on these zombie programs last year. Many members of Congress appear more focused on communications and messaging than on the difficult and often politically fraught work of negotiating and passing legislation in an era of sharp partisan divisions.
While the decline in congressional capacity and commitment to lawmaking involves much more than regulatory deference, the Supreme Court’s decisions will now put a spotlight on Congress’s ability to legislate. Criticisms of the unchecked power of the administrative state often focus on presidential and bureaucratic overreach through executive orders and regulations. But often the executive branch has been forced into a position to issue regulations and policy guidance as a matter of necessity, as Congress and Republican and Democratic administrations confront new and evolving policy and legal questions. Policy decisions often must be made by someone. For several decades, the expertise and political will have largely existed within the executive.
Now, with a possibility that the Supreme Court reigns in the executive branch’s rulemaking power, Congress will need to rebuild its capacity to write, negotiate, and pass detailed laws that do not shift significant policy making responsibility to the White House. Restoring the muscle memory that has been lost over several decades will take time. But here are realistic actions that the 118th Congress can do in its remaining legislative session.
First, Congress should allow for additional congressional staff, particularly for committees, to strengthen its legislative capacity. Writing clear and detailed laws will require significant legal and technical expertise. Reversing the halving of House Committee staff since the 1990s would be a good place to start.
Second, Congress should leverage its own nonpartisan support agencies, including the Government Accountability Office (GAO), to focus more resources and attention to regulatory oversight and providing legal and technical assistance to Congress. GAO already has some statutory authority to oversee federal regulations under the Congressional Review Act (CRA). For example, in 2023, the agency issued 12 CRA decisions and 75 reports on rules. These decisions and reports are focused not on the substance of the regulations but on whether the agencies complied with the regulatory process when issuing major rules.
But in the past, Congress has authorized GAO to conduct independent cost-benefit analyses of federal agencies, including “a substantive evaluation of the agency’s data, methodology, and assumptions,” in developing economically significant rules. The Truth in Regulating Act of 2000 established a pilot project that allowed committee chairs and ranking members to request that GAO conduct these independent analyses of certain rules. While that authority has expired, Congress could reestablish it to strengthen regulatory oversight.
Congress could also require GAO to create a mission team to focus on regulatory reviews. This team could also be charged with providing legal and technical assistance as Congress looks to clearer laws that do not require broad executive interpretation. For example, GAO could leverage the legal and technological expertise of a new regulatory review mission team with the Science, Technology Assessment, and Analytics team to use artificial intelligence to identify outdated language in the federal code, applying lessons learned from the experience of the Health and Human Services Department’s Regulatory Clean Up Initiative.
There is already some bipartisan momentum for strengthening GAO’s role in overseeing federal regulations. In December, the Senate passed the GAO Database Modernization Act, sponsored by Sen. Rick Scott (R-FL) and Sen. Gary Peters (D-MI), which would require federal agencies to submit to GAO “a report on rules that are revoked, suspended, replaced, amended, or otherwise made ineffective.” Such reporting could prompt federal agencies to review and streamline federal regulation and guidance.
While the nation waits for the Supreme Court to issue its decisions, Congress should take these prudent steps to rebuild the legislative muscles it has neglected for too long.
