The Supreme Court Is About To Make Congress Reinvent Itself


The Supreme Court Is About To Make Congress Reinvent Itself

May 29, 2024

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This piece originally appeared in Newsweek.

This summer, the Supreme Court is poised to overturn a cornerstone of administrative law known as "Chevron deference." Established in the 1984 case Chevron v. NRDC, this doctrine instructs courts to defer to federal agencies' interpretations of laws where the underlying statute is ambiguous (or even silent). Absent Chevron, Congress could be forced to be much more specific in how it crafts legislation, delegates authority, and conducts regulatory oversight. If it refuses to adapt, agencies could be incapacitated and service delivery could stall.

Ironically, the effort to dismantle Chevron and return responsibilityto the legislative branch may happen amid a historically unproductive and divided Congress. Briefing and oral arguments for Loper Bright Enterprises v. Raimondo, the case challenging the 1984 decision, raised questions about Congress' preparedness. And outside the Court, commentators fear Congress may be too broken to fix.

As close watchers of efforts to modernize Congress over the past decade, we don't share that pessimism. But a lot will have to change. In the 40 years since Chevron was decided, Congress has seen worsening dysfunction and atrophy. Staffing on House committees has shrunk by 41 percent. Critical support offices like the Congressional Research Service and the Government Accountability Office have downsized by more than 25 percent. Meanwhile, the complexity of the federal bureaucracy has increased immensely.

While Chevron is often described as diminishing congressional authority, that's not entirely accurate. Rather than stealing authority from Congress, the ruling created the political conditions for Congress to be deliberately ambiguous, and punt contentious policy details to the executive branch. This change was then followed by a hollowing out of committee expertise, increased dependence on lobbyists, centralization of power in leadership, and more gridlock. As attorney Paul Clement argued in Loper Bright v. Raimondo:

Chevron is a big factor in contributing to gridlock. And let me give you a concrete example. I would think that the uniquely 21st-century phenomenon of cryptocurrency would have been addressed by Congress, and I certainly would have thought that would have been true in the wake of the FTX debacle. But it hasn't happened. Why hasn't it happened? Because there's an agency head out there that thinks that he already has the authority to address this uniquely 21st-century problem with a couple of statutes passed in the 1930s.

A post-Chevron world could force Congress to increase its internal capacity, invest in expertise, overhaul its processes, better monitor implementation, and respond more quickly. If not, depending where SCOTUS comes down, things could start to break.

Massive institutional reforms in Congress are rare and usually come in response to a crisis or scandal, whether post-Nixon budget changes, post-Jack Abramoff lobbying reform, or post-9/11 security changes (including the embrace of email after Anthrax attacks).

More recently, we saw continuity upgrades accelerated during the pandemic, and Congress is now responding with remarkable haste to responsibly adopt AI tools. Since 2019, a bipartisan modernization effort in the House has produced and implemented over 100 reforms, creating a virtuous cycle in which members, staff, and outside experts work together to improve the institution.

Post-Chevron, these efforts need to be dramatically expanded. This will require not just incremental adjustments but a comprehensive upgrade in resources, staffing, and operations. It will require a major increase to the legislative branch's budget even as the U.S. faces a difficult fiscal outlook. Indeed, while Congress is a mere 0.1 percent of federal expenditures, it has long been a salient and politically expedient place for politicians to make cuts.

One key area where Congress will need to improve is its regulatory monitoring and oversight. AEI scholars Kevin Kosar and Philip Wallach proposed a vehicle for this change: a new "Congressional Regulation Office" (CRO). The CRO would undertake critical tasks such as conducting benefit-cost analyses of significant agency rules, performing retrospective reviews to assess the effectiveness and impact of existing regulations, and identifying redundancies or conflicts across the regulatory landscape. Another approach would be to build this function inside of an existing agency, such as the Government Accountability Office or the Congressional Budget Office.

In addition to building a new regulatory support function, Congress will need to bolster its staff capacity and technology resources, with a particular focus on committees with substantial regulatory jurisdiction, as well as support agencies.

Unfortunately, to date, we are unaware of any major hearings or other efforts in Congress to address this challenge. Meanwhile, court watchers see that an upheaval to Chevron is coming. Regardless of where you come down on the merits of the case, it's crucial to get ready. While most will be focused on the November election throughout 2024, some of the biggest changes coming to Congress may soon be decided by nine votes.

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