The Supreme Court’s recent decision to undercut federal agency expertise and power should be the push Congress needs to revamp its expert capacity.
On one of the last days of the term in Loper Bright Enterprises vs. Raimondo, justices abandoned a decades-old legal standard called Chevron deference, which directed courts to defer to agencies’ interpretations of statutes in cases where statutes’ text is vague or silent.
Chevron deference placed more power to interpret ambiguous statutes with federal agencies, which house much of the technical expertise necessary to grapple with complex regulatory issues that affect Americans’ everyday lives.
Chevron’s reversal disempowers agencies at a time when the country faces AI, climate change and other issues that require technical expertise and evidence to address. Now Congress, which had relied on the executive branch to sort out nuanced details in implementing policies, must step up.
Without Chevron, Congress will have to legislate more specifically and therefore must beef up its technical capacity.
To be sure, increasing congressional capacity alone will not solve the problem. Pundits point to the ramifications of the decision for courts, which will also need to increase their technical capacity to adjudicate the avalanche of lawsuits that will challenge federal regulations. However, the legislative branch is a key part of the three-branch equation that will mitigate the consequences of striking down Chevron.
After decades of devolution of congressional expertise, Congress lags behind executive agencies on funding and infrastructure — resources that help immensely in navigating complex regulatory questions.
The executive branch now has more than 120 times as much funding as the legislative branch. The executive branch can work with the best experts and available evidence, so Congress has given it a fair amount of discretion in how to implement laws that are passed.
In a post-Chevron world, Congress can no longer leave it to the agencies.
Fortunately, there is a straightforward path for Congress to beef up its internal chops. As Martha Kinsella and I argued in a paper last year, there are a few steps Congress can take that will help alleviate damage from striking down Chevron.
First, Congress needs to invest in necessary resources. It can create a new Science and Technology Hub within the Government Accountability Office, an existing nonpartisan support agency for the legislative branch. This hub, staffed by technical experts, would help translate scientific information for members of Congress and connect members and committees with advisory councils of outside experts.
It’s akin to advisory committees in the executive branch and at the National Academies of Sciences, Engineering and Medicine. These advisory councils would provide the external expertise an underfunded, understaffed Congress so desperately requires to legislate with specificity on technical topics.
In addition to bolstering support agencies, Congress can invest in more skilled committee members and personal staff.
Members, who serve much larger districts than they once represented and juggle increasingly complex policy issues, have limited office budgets and caps on the number of staff they can hire. This hampers their ability to gain expertise on issues. Committees, the focal points for congressional specialization and deliberation, have lost more than 1,000 positions in the last three decades.
Committees and personal offices also need staff with the appropriate training to handle technical topics. The average congressional staffer has worked in his or her role for only a few years, and low staff salaries mean congressional staffers are frequently at the beginning of their careers.
Congress should strengthen internal capacity by increasing personal office budgets and committee staff budgets, utilizing the newly minted House HR hub to find staff with suitable backgrounds and lifting the cap on personal office hiring.
Third, Congress needs to organize for success. Kevin Kosar and Phil Wallach have suggested a new “Congressional Regulation Office” to review federal agency regulations. Such an internal support agency will prove critical in a post-Chevron world.
Congressional committees are also overdue for a jurisdictional makeover. Each committee is tasked with oversight of certain industries and agencies. Committee jurisdictions have not been redrawn since the 1970s, and no one committee has sole jurisdiction over newer industries like the tech sector. This results in turf battles between committees and confusion as to which committee is responsible for certain policy areas.
Reorganizing jurisdictions would enable committees to more effectively oversee agencies and industries, which will be all the more important now that Chevron has been struck down.
Will Congress rise to the occasion? History shows that Congress is more likely to make dramatic changes in times of crisis, especially concerning executive authority.
After World War II and a perceived power grab by the executive, Congress passed the 1946 Legislative Reorganization Act, a restructuring of committees and internal processes. After the Watergate scandal, Congress similarly reorganized its committees and procedures. More recently, amid Trump’s presidency and the COVID-19 pandemic, a wave of new young lawmakers has spearheaded another effort to revamp Congress.
In 2019, the House formed a Modernization Committee, which has successfully devised and implemented more than 100 reforms, including changes related to staffing and capacity. For example, for the first time, Congress has dedicated teams for IT and tech support, staff hiring and other key parts of capacity.
The latest decision on Chevron should act as the push Congress needs to double down on these initiatives. This will require an increase in the legislative budget and a concerted effort, as Marci Harris and Zach Graves argue in their recent piece.
The country desperately needs a government with the resources to handle complex problems, and Congress must equip itself to deliver for the American people in a post-Chevron world.
Maya Kornberg Ph.D. is a senior research fellow in the Elections and Government Program at the Brennan Center for Justice at NYU Law.