The end of Chevron deference isn’t the end of regulation

Policymaking ultimately will become more aligned with the preference of our national legislature than the executive branch — which seems appropriate in a representative democracy. 

Last week, I had coffee with a wonk who works on immigration policy, a political moderate who is trying to get Capitol Hill to have a sane, bipartisan conversation about the topic and enact reforms. It is a challenge, seeing as how legislators frequently behave as if they would prefer to campaign and fundraise on the issue rather than bargain out a deal. 

I mentioned to her that I had been writing a lot about Congress and regulation, and that the Supreme Court’s recent rulings have added to my workload. She responded to my mention of Chevron deference by declaring, “I’m glad the ruling happened. That means if there is a Trump administration then Stephen Miller will not have as much authority to make immigration policy.” 

I laughed because she is right. 

The court’s rulings in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce do mean that Miller would have to be a bit more cautious in issuing regulations to reduce immigration and expel migrants. They could no longer do whatever they can pass off as a reasonable interpretation of the statute and that presume that their policies will receive judicial deference.

Alas, her upbeat take on the court’s decision is not shared by all. James Goodwin, policy director at the Center for Progressive Reform, suggested the loss of Chevron deference would produce a “chilling effect” on agencies’ efforts to enforce the policies they issue. 

Other critics were less measured. James Fallows denounced the ruling as “corrupt, arrogant and destructive” and went on to suggest that airline safety could be compromised because courts could second guess decisions of the Federal Aviation Administration. 

Hayden Clark, an enthusiast for transit policy, snarked, “With Chevron gone, ask your local congress representative what their stance on a railroads’ use of bearing defect detection systems is and their thoughts on DOT-111 tank cars. It's a major cause of the East Palestine derailment, FYI.”

He added that he preferred unelected experts making policy rather than members of Congress 

Not to be outdone, Sen. Chris Murphy (D-Conn.), who apparently shares Clark’s dim opinion of Congress’s ability to make law, called the Supreme Court “a cog in the Trump/ Republican/ corporate/ billionaire power grab.”

“[The court’s] decision to gut regulators' power to enforce pro-consumer laws is a watershed moment in the history of this quiet coup,” Murphy added. 

But is the sky really falling? 

Certainly, companies, industries and individuals who feel they have been burdened by regulations they believe to be beyond the scope of the law may start filing lawsuits. And, yes, the federal courts will have to make time to hear these cases. 

Different judges will take different views of what laws mean and whether agencies’ actions are appropriate. Some policies that formerly survived judicial scrutiny may fall. So, yes, we may have some regulatory uncertainty.  

Despite the Chicken Littles, however, the administrative state will live on. None of the 439 executive and independent agencies has disappeared.

Agencies will still be able to regulate. Nothing in the court’s ruling declares that agencies may no longer interpret the law or that they cannot go beyond the explicit words of a statute. Agencies can and should continue to use their expertise and judgment to faithfully execute the law. 

Nor do the Loper Bright and Relentless cases mean that Congress cannot continue to delegate authority to agencies to regulate. For example, if majorities in both chambers and the president approve a law stating that the Environmental Protection Agency may enact regulation to reduce carbon emissions to the level they were in 1900, that would be permissible. 

The upshot of the loss of Chevron deference is that Congress is going to feel pressure to up its policymaking game. It is going to be much harder for Congress to do what it has so often done: pass a vague law, let agencies enact policy and then hoot at bureaucrats for going beyond the law.

Instead, legislators will have to either be more precise in their policy specifications or be more explicit in their delegations of decision-making authority. 

Congress can help itself do these things by creating a nonpartisan Congressional Regulation Office, with wonks and attorneys who will help them draft better statutes, and engage in regulatory oversight.  

If Congress fails to meet the moment by investing in its capacity, then the federal courts will be the deciders of regulatory ambiguity in the short term. But, eventually, the groups finding themselves on the losing end in legal cases will crank up their demands for Congress to act.  

Either way, policymaking ultimately will become more aligned with the preference of our national legislature than the executive branch — which seems appropriate in a representative democracy. 

Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He hosts the Understanding Congress podcast and edits UnderstandingCongress.org.