For much of the 20th century, conservatives have criticized the administrative state. At bottom, they are troubled that executive agencies can issue regulations that go beyond the plain text of statute.
A president is supposed to “take care that the laws be faithfully executed,” according to the U.S. Constitution’s Article II. Yet, president after president has succumbed to the temptation to avert dealing with Congress by issuing regulations far beyond the scope of a law. Often, an aggrieved private party will file suit, and the federal courts are left to decide if a president has gone too far.
Sometimes, presidents get slapped down. President Joe Biden, for example, had the Department of Education try to cancel billions in student loan debt by relying on a two-decade-old law issued shortly after the attacks of 9/11. The only thing that stopped him was the Supreme Court, which ruled against the administration.
Often, however, the judiciary lets the agency action stand and will do so based upon “Chevron deference.” This juridical test was announced in Chevron USA, Inc. v. National Resources Defense Council, Inc. (1984). It holds that when an agency is confronted with statutory ambiguity its determination of the statute’s meaning will be deferred to so long as it is reasonable.
On the one hand, Chevron deference has been a good thing. It increased the predictability of judicial rulings by limiting the grounds judges use to review cases. The country is not well served by judges behaving like legislators and deciding complex regulatory matters ad hoc. On the other hand, the Chevron decision has encouraged presidents and regulatory agencies to be more aggressive by setting an easy threshold — reasonableness.
Taking this all in the reader might wonder, “Why isn’t Congress deciding these legislative matters?” Why, indeed, and the Supreme Court also seems to be pondering this question.
Earlier this year it listened to the complaints of fishermen who objected to being forced to pay for federal inspectors who visit their boats. The 1970s-era law does not clarify who should pay for the National Marine Fisheries Service’s inspection costs, but the government thinks it is reasonable for herring anglers to do so.
Conservatives generally are elated and hope that the court’s forthcoming decision in Loper Bright Enterprises v. Raimondo will eliminate Chevron deference and curb agencies’ regulatory authority.
But then what? Nobody on the political right is quite sure, so far as I can tell. It’s a bit like a dog catching the bumper he has been chasing.
Our separation of powers system abhors a vacuum. If one branch is not exercising legislative power then another will. A Supreme Court ruling against Chevron will put legislative power up for grabs. One would hope that conservatives would see the demise of Chevron as an opportunity to shift legislative authority back to the first branch of government.
The executive branch has run circles around Congress on regulatory matters owing to the fact that it employs legion wonks and legal mavens to craft rules. Regulation is complex.
For example, a proposed rule by the Centers for Medicare and Medicaid Services to modify the Health Insurance Portability and Accountability Act National Council for Prescription Drug
Programs Retail Pharmacy Standards” runs 27 pages. Understanding it would require significant knowledge of several federal health programs and the analytical capacity to second guess the rule’s $386.3 million cost to pharmacies, pharmacy benefit plans and chain drug stores.
Congress has auditing and program analysis geeks in the Government Accountability Office, policy nerds at the Congressional Research Service and budget wonks in the Congressional Budget Office. But it has no dedicated corps of regulatory wonks who can parse executive branch rules, second guess agencies’ cost-benefit analyses and advise lawmakers on how to write statutes less susceptible to exploitation by agencies. Too frequently, legislators rely on lobbyists — who have a stake in the outcome — to advise them on this lacunae.
This is why my colleague Philip Wallach and I advised legislators to create a Congressional Regulation Office to employ nonpartisan regulatory policy wonks who could advise legislators. Knowledge is power, and if conservatives do not want unaccountable bureaucrats and judges to wield legislative authority they need to give Congress the expertise it needs.
Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He hosts the Understanding Congress podcast and edits UnderstandingCongress.org.