Ending Chevron Can't Solve Congress's Problems
(Editorial Note: This piece first appeared in R Street on July 8, 2024.)
Conservative critics of the administrative state are cheering the Supreme Court’s recent decision to reverse its 1980s-era Chevron precedent. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Court required district and appellate court judges to defer to regulatory agencies’ interpretation of the law when Congress’s intent was unclear. Conservatives argue that the Court’s mandated “Chevron deference” has since weakened American self-government and undermined the Constitution’s separation of powers system by shifting the locus of policymaking from the legislature to the executive branch.
People across the political spectrum have acknowledged the significance of Chevron’s demise. Even before the Court announced its decision, one conservative noted “[I]t would be difficult to overstate what effect the circumscription or end of Chevron deference would have on the size and powers of the regulatory state.” Another described the decision as “a huge step forward for self-government.” The New York Times underscored the importance of the Court’s decision for conservatives more broadly, describing it as “the capstone victory for the conservative legal movement’s assault on the administrative state.” Even Mother Jones—a leading progressive publication—portrayed Chevron’s end as “a massive blow to the administrative state.”
Many people expect the Court’s decision to shift the locus of policymaking back to the people’s elected representatives in Congress. For example, Rep. Derek Kilmer (D-Wash.), noted that overturning Chevron will force the House and Senate “to adopt a more precise approach to legislation.” A Bipartisan Policy Center scholar expects “future lawmaking to be impacted with this decision” because it “requires Congress to be much more proscriptive.” And Rep. Mark Green (R-Tenn.), suggested that Congress “can no longer pass the buck” to executive branch agencies to make public policy now that Chevron is no longer operative.
However, the Supreme Court cannot restore balance to the separation of powers system by itself. This is because Congress is the problem, not Chevron deference. Instead of forcing Congress to take a more active role in legislating, the Court’s decision to end Chevron merely shifts the locus of policymaking from regulatory agencies to federal courts—and only in specific instances, when judges disagree with executive branch officials’ statutory interpretation.
The Chevron Precedent
The Supreme Court’s Chevron precedent required lower court judges to follow a “two-step approach” when deciding cases involving federal regulations. The Court instructed judges to determine if Congress had taken an explicit position on the issue first; if it has, the judge must reject any agency interpretation contradicting Congress’s clear intent. However, the Supreme Court barred lower court judges from imposing their interpretation of a statute instead of a regulatory agency’s interpretation if Congress did not address the issue explicitly. In those instances, judges were instructed to defer to agency officials as long as their interpretation was based on “a permissible construction of the statute.”
But the Court reversed course in Loper Bright Enterprises v. Raimondo, abolishing the requirement that lower court judges defer to regulatory agencies’ interpretation of the law when adjudicating disputes under it. The Court concluded that Chevron deference violates a provision of the Administrative Procedure Act requiring judges to decide for themselves whether executive branch officials are acting lawfully. In doing so, “Chevron prevents judges from judging.”
A Post-Chevron World
Yet the post-Chevron world may not be that different. Written by Chief Justice John Roberts, the Court’s opinion focuses almost exclusively on how federal judges should handle regulatory disputes in specific cases moving forward. And whatever implications of the Court’s decision on the outcome of those disputes, the administrative state’s present trajectory is unlikely to change more broadly. This is because federal judges have historically afforded “respect” to executive branch officials’ interpretation when adjudicating disputes under the law.
Congress will continue to pass the policymaking buck to regulatory agencies absent major changes in its environment. Lawmakers may do so because they lack the resources needed to legislate effectively on highly technical issues, or they may want to avoid making hard decisions that could hurt them in future elections. Whatever the reason, the Court’s decision to overturn Chevron does not fundamentally alter the dynamic on Capitol Hill or otherwise change lawmakers’ incentives.
Congress Must Solve Its Own Problems
People concerned about the administrative state should look to Congress instead of the federal courts to rein it in. The Constitution gives Congress all the power to stop regulatory agencies from making policy without its consent. Lawmakers can use the power of the purse to bar officials from enforcing regulations that lack statutory authority. The Senate can use its Advice and Consent power to make it harder for the president to install officials who disregard Congress in important positions at regulatory agencies.
That Congress refuses to use its power to check the administrative state suggests that Chevron deference is not responsible for the sorry state of America’s separation of powers system. Federal judges did not allow “the executive to seize powers that Congress never authorized”—Congress did.
The Constitution does not give federal judges the power to police disputes between Congress and the president. Suggesting otherwise places federal judges outside of the separation of powers system altogether—and that view, more so than Chevron deference, undermines the Constitution.