Chevron decision already leaving Congress, agencies puzzled
In a landmark decision that will greatly curtail the power of federal agencies, the Supreme Court recently overturned the longstanding doctrine that directs judges to give deference to agency interpretation of ambiguous statutory language.
The new ruling means that courts will now only defer to agencies when laws explicitly state the agency can make its own interpretation. It also assigns our legislative branch the added responsibility of crafting even more judicious and well-considered legislation. Given its reputation for allowing disagreements to impede progress, the Chevron decision presents Congress with a tall order to fill.
Right out of the gate, we’re already seeing that lawmakers on either side of the aisle may have different interpretations of how this new decision will play out. Republicans who are wary of agencies interpreting laws in ways other than how they were intended may praise the decision for opening the door to increased congressional oversight. Democrats, on the other hand, may fear that the ruling will take the regulation out of the experts’ hands.
Even the agencies are grappling with how to proceed. Just recently, a Texas judge ruled that the Federal Trade Commission (FTC) had exceeded its rulemaking authority by banning noncompete agreements, arguing that the agency is supposed to do what it is told by Congress, not what it thinks it should do. Now, the agency must interpret this thorny decision while Congress weighs whether more specific rulemaking is necessary.
Before this case came into the picture, Congress was already stretched thin in terms of legislative work. Regardless of the normative question of whether this decision is good or bad, we can positively determine that it will further strain the limited resources on Capitol Hill. This is also true for the courts.
As policy experts noted in an analysis of the decision’s impact on healthcare, members of Congress will be challenged to make statutes more specific and will, therefore, have to collaborate more to determine the nuances of the laws they are proposing.
This becomes extremely pressing when considering how lawmakers will regulate controversial issues, such as artificial intelligence. As American Policy Ventures Non-Resident Fellow Divyansh Kaushik recently noted, Congress “should be very proactive now” about establishing agencies and building up technological capacity on the issue. To that end, Kaushik also promoted the idea of restoring the Office of Technology Assessment (OTA) to help Congress create statutes on this topic and others in a new regulatory and technological world. As Kaushik said, “if Congress misses the moment, it will essentially be now up to the judiciary.”
Those of us working closely with congressional offices are already recognizing that member and committee staff lacking the expertise to draft overtly technical legislation is a key bottleneck that may arise. This process can no longer assume that bureaucratic agencies can “fill the gaps” left by lawmakers. Now, it must involve fine-tuned details on what Congress will direct the agencies to do and how they will instruct them to do it.
While this is a heavy lift for staff, some short-term solutions may alleviate the burden. This could include Congress allocating more money to offices so they can add more proficient staff to the payroll. Legislative aides knowledgeable on the ins and outs of key policy sectors would go a long way in helping their bosses produce well-thought-out legislation. Additionally, it’s important to have experienced staff to act as gatekeepers for the onslaught of lobbyist inquiries that are likely coming their way post-decision. Rather than relying on lobbyist input, better-prepared staff will help lawmakers more seamlessly work with their counterparts to iron out comprehensive solutions that account for the varying interests at play.
Nevertheless, this responsibility is already causing some heartburn. At a recent House Administration hearing on Congress in a post-Chevron world, committee members showed even they were skeptical of their own branch’s ability to produce thoughtful and timely legislation. Taking these concerns even further, Sen. Elizabeth Warren (D-MA) recently introduced legislation proposing to essentially restore the previous standard that was overturned by the Supreme Court.
Regardless of what lawmakers feel about this decision, the negotiation process surrounding legislating has changed. Yes, we do now face the possibility of the legislative process becoming even lengthier and more contentious than it was before (hard to imagine, I know). However, I think we can also look at this court decision in a more positive light. For one, Congress must now write clearer and more precise laws, and this task may help them consider policy outcomes more than ever before. A post-Chevron world also warrants more compromise and working across the aisle; otherwise, Americans will never see the legislative benefits or improvements that they’ve hired their elected officials to take care of.
Paolo Mastrangelo is co-founder of American Policy Ventures.
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