This article appears in the October 2024 issue of The American Prospect magazine. Subscribe here.
This is not just another fish story.
It begins with the Magnuson-Stevens Fishery Conservation and Management Act, a law dedicated to preventing overfishing within 200 miles of the U.S. coastline. Congress gave the National Marine Fisheries Service (NMFS) control over approving plans for this purpose, including the requirement that all fishing boats host inspectors to collect data “necessary for conservation and management of the fishery.”
But Congress forgot something. While it specified in the law that foreign fishing ships and ships off the Pacific coast would cover the wages of the inspectors, it never designated who would pay for inspectors on Atlantic herring boats. The NMFS had to make a judgment call. And it decided the herring boats would pay.
Loper Bright Enterprises, Inc., ran some of these boats. And it didn’t want to pay. So the company sued, arguing that Congress didn’t specifically authorize the NMFS to charge the herring industry. After winding its way through the legal system, the case reached the Supreme Court. And in June, the Court’s conservative majority used the complaint to obliterate the administrative state.
For 40 years, questions like this followed the precedent of Chevron v. Natural Resources Defense Council. The doctrine of “Chevron deference” said that courts must give executive branch agencies wide latitude to interpret ambiguous statutes, as long as the decision was reasonable. But on behalf of herring companies like Loper Bright, Chief Justice John Roberts overturned Chevron deference, ruling that federal agencies no longer get the benefit of the doubt, and that judges are empowered to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
This was a long-standing goal of conservatives and corporations. It interrupts the normal process of agency rulemaking and lets courts throw out regulations they don’t like. With the Supreme Court under right-wing control, that presages a deregulatory bonanza.
Hearing this story, you might consider it a struggle for power between the judiciary and executive branches. Yet it’s really an attack on Congress.
The Constitution vests all legislative authority in the first branch of government, which explicitly authorized executive branch agencies to carry out their statutory wishes. If judges now get to decide what those statutes actually mean, Congress is cut off from the execution of the laws it passes.
Congress can legislate with clarity, purpose, and sufficient resolve to counteract judicial policymaking.
Congress’s new mandate sounds deceptively simple: Just tighten up your legislative language. But Hill veterans know that won’t be easy. As Rep. Jerrold Nadler (D-NY), chair of the House Judiciary Committee, told me: “We’re going to have to try to be as specific as possible, but it’s impossible.”
Nadler has witnessed the full history of Congress’s descent into idiocracy. The institution lacks manpower and resources to make granular decisions in complicated policy areas, instead diverting those questions to the agencies. It lacks the common ground of a unified governmental branch to coherently fight the judiciary’s self-aggrandizement. And it lacks a time machine to know how new developments will affect laws in the future. If agency interpretations can no longer adapt to changes in technology and society without further congressional action, vast areas of policy could go unaddressed.
But most of these wounds are self-inflicted, and can be reversed. In speaking to over 20 lawmakers, current and former staffers, and experts in congressional procedure, I learned that Congress can legislate with clarity, purpose, and sufficient resolve to counteract judicial policymaking. It will require boosts in staff capacity, new processes to affirm legislative intent, stronger roles for lawmakers outside of leadership, and maybe even new agencies to assist Congress. And with almost no notice over the past few years, both parties have actually begun to work on this. Loper Bright could serve as a precipitating event to accelerate this modernization of Congress.
“When you look at the history of Congress, every 40, 50 years they change things fundamentally,” said Daniel Schuman, a congressional reform expert with the American Governance Institute. “Loper Bright comes at a moment when the members on the House side are educated about how they’ve enfeebled themselves.”
In the end, the outcome will depend on whether Congress respects itself. Thousands of bills are written every session, and hundreds pass into law. Countless hours are spent in deliberation and debate. Will elected representatives and their staffers summon the courage to defend their work, and make sure what they do for a living actually matters? Or will all that effort go to waste, tossed into the judicial meat grinder and transformed beyond recognition?
CHEVRON, DECIDED IN 1984, kept in place a Reagan administration action that weakened the Clean Air Act’s mandates for reducing factory emissions. Chevron deference didn’t necessarily facilitate regulation or deregulation; it protected a process whereby Congress legislated and the agencies filled in details within certain parameters. When Republicans controlled the presidency and wanted to dismantle the New Deal regulatory state from within, conservatives cheered the Chevron ruling. As Democratic presidents sought to repair the damage from the Reagan Revolution, conservatives suddenly reviled agency interpretation, and appealed to right-wing jurists to nullify it.
With Chevron deference in place, Congress recognized that it didn’t have to solve for every policy nuance. A 2018 empirical study found that Chevron was the most familiar judicial opinion to those who drafted legislative text. “At some point you stop asking why you write things a certain way. It becomes part of the muscle memory,” said Sam Simon, a former lead Democratic staffer on the Senate Judiciary Committee. Staffers like Simon knew that textual ambiguity would comprise a de facto deferral of authority to administrative agencies, and they would add specificity if they didn’t want agencies to have that power.
Ambiguity in drafting legislation has always been a useful tool. Some statutes are imprecise by design. The Communications Act of 1934 could not have possibly anticipated the internet, in the same way that the Securities Exchange Act of 1934 did not anticipate crypto. Broad authority to manage communications networks or financial asset classes can accommodate what we learn as we go.
“[With] CFPB [the Consumer Financial Protection Bureau], we said, ‘There are a million known scams, and we want you to monitor the marketplace and figure out what’s deceptive,’” said Bharat Ramamurti, former senior counsel to Sen. Elizabeth Warren (D-MA) and former deputy director of the National Economic Council. “Congress in 2024 won’t know that in 2090 there’s some new AI scam that needs a rule.”
JOHN BAZEMORE/AP PHOTO
In the 1990s, Newt Gingrich cut legislative branch professional and support staff, uprooting the institutional knowledge of Congress.
Other times, vagueness is strategic: a way to maintain a fragile political coalition by focusing on goals over details. If you can’t get the votes by being specific, you might be able to get them by identifying a principle and letting the agency handle the rest. “We wrote the Bipartisan Safer Communities Act knowing that there were terms and provisions that were going to be interpreted by ATF and DOJ,” said Sen. Chris Murphy (D-CT), referring to the first major gun safety legislation in 30 years. “And so we didn’t have to cross those bridges in a difficult negotiation. It will make negotiations much harder because you will have to decide every single little granular question.”
There’s a third category, resulting from both the frenzied nature of the modern Congress, and the foreknowledge that agencies, before Loper Bright, could clean up mistakes. “Punting to the agency” was a phrase several people used. It could happen because technical knowledge of obscure issues isn’t available in Congress, because lawmakers dealing with giant omnibus bills run out of time to adjudicate everything, or simply because it’s easier.
The Dodd-Frank Act, a catchall law with hundreds of provisions, punted to the agency on numerous occasions. For example, Dodd-Frank placed a limitation on incentive-based compensation agreements, so senior executives wouldn’t take on undue risk by chasing stock gains or company growth. Six agencies were tasked with managing the details; the rule has still not been promulgated 14 years later. “That’s where Congress can say, ‘We think a way to do that is, senior executives put their money into a pool and if there’s a problem, [agencies] take the bonus,’” Ramamurti said. “There’s a known problem with a solution you can impose.”
That sounds simple, but questions abound: Which senior executives would have their bonuses held in escrow? For how long? Sometimes lawmakers can’t reach consensus on an answer. “I’m thinking about when it’s 3 a.m., and we don’t agree on how we want this provision to work but we trust the agency,” said Simon. “On many issues, people read a vague statute and say, ‘Did Congress not think about this problem?’ No, we thought about it for weeks!”
Loper Bright says that agencies can no longer resolve those statutory ambiguities themselves, and that courts have “special competence” to do so. But Congress has the greatest ability to determine its own meaning. It’s just that the institution has inflicted so much self-harm that such a possibility seems remote.
FORCING LAWMAKERS TO WREST BACK CONTROL of the legislative process sounds empowering. But if Congress is to meet the judiciary’s demands, it will first have to reverse its epic slide in capacity, ushered in largely by Newt Gingrich and the Republican Revolution in 1994.
When Republicans gained control of the House of Representatives that year, crippling government was an end goal, so thinning out the personnel in Congress who see government as worth preserving became an imperative. Gingrich immediately cut professional staff, who work for committees rather than individual members, as well as legislative support staff at agencies like the Government Accountability Office (GAO) and the Congressional Research Service (CRS), which audit and analyze policy questions. The Office of Technology Assessment, established to provide technical advice to Congress, was completely dismantled.
Today, the legislative branch retains about 0.4 percent of total discretionary spending, and nearly one-quarter of that goes to the Capitol Police and the Architect of the Capitol (which handles building renovations). Those two divisions increased their budgets 279 and 131 percent, respectively, between 1995 and 2019, eating up most of the increase in funding over that period. The rest of the legislative branch, especially the segments that write the laws and provide the institutional knowledge base, has been ravaged.
Only 6.3 percent of legislative branch spending is devoted to House and Senate committees, where subject matter expertise is supposed to accumulate. Since 1984, the year Chevron deference was instituted, House committee staff is down 41 percent (adjusted for inflation), according to the American Governance Institute. Overall, congressional staff head counts peaked in the late 1970s. Gridlock, low pay, understaffing, and the lure of selling out to lobby for corporate America has led to record-high turnover, extinguishing even the brightest minds in government.
Legislative drafters could explicitly add a mini-Chevron into all bills, directly delegating certain decisions.
Members and staff have few options inside the institution to supplant their knowledge. Over 2,000 researchers and analysts left legislative support agencies like GAO and CRS between 1993 and 2011; staff levels are more than 25 percent below where they were 40 years ago. So when Congress needs to understand something, it inevitably turns to lobbyists, PR firms, trade organizations, or partisan think tanks. Oftentimes, that’s who writes the legislation.
Simultaneously, Gingrich centralized power in the Speaker’s office, something Democrats never really rolled back. Staffing for House leadership has nearly tripled since 1977, and more resources are devoted to politics and communications than legislation. In addition, many bills are dictated by leadership, rather than through the painstaking work of building a legislative record. Before Gingrich, committees had real power. A bill would only be produced for the floor after committee hearings, markups, and votes, memorialized in a committee report. Something drawn up by leadership doesn’t carry the same weight, and is typically more reliant on agency implementation.
Gingrich’s power grab contributed mightily to this, but so have the narrow margins in Congress in recent years, and the deepening partisan strife. Without a working majority to govern, last-minute dealmaking has become the norm, with bills written on the fly to meet tight deadlines. “If the Court is looking for language, the committee record becomes massively important. Getting everyone together in the Speaker’s room doesn’t build a record,” said Marci Harris, a former legislative staffer and the co-founder of POPVOX, one of a handful of organizations focused on improving congressional effectiveness.
In short, Congress’s brain has been removed and shrunken, at a time when policy complexity and federal regulatory activity has soared. It’s no wonder that executive branch agencies have become a crutch. “The executive branch has 120 times more funding than the legislative branch,” said Maya Kornberg, a congressional scholar at the Brennan Center.
Chevron allowed a bewildered Congress to outsource their understanding of difficult issues to regulatory agencies. What Chevron deference really deferred was Congress’s investment in itself. The Supreme Court has slammed the door shut on that dynamic.
RESPONDING TO THE COURT WILL REQUIRE a new way of thinking on Capitol Hill. One point of view is that Congress will simply have to legislate more. “No one’s going to strike down a transportation regulation when they pass a transportation bill every five years, because they have to reauthorize all the trust funds,” said Soren Dayton, another former Hill staffer and director of governance at the centrist Niskanen Center. “The call to Congress is, ‘Get off your ass and start passing laws.’”
It’s true that, if Congress actually reauthorized statutes, took care of annual appropriations, and moved legislation on a consistent basis, it could adapt better to emerging developments. Instead of the Environmental Protection Agency straining to reinterpret the Clean Air Act for the threat of climate change, Congress could actually affirm its intent to reduce fossil fuel emissions. (Democrats quietly did this in the Inflation Reduction Act of 2022, amending the Clean Air Act to define carbon dioxide as an “air pollutant.”)
But a determination to regularly update statutes presumes that you could get a deeply divided Congress to pass those laws, or that members would want to take the tough votes necessary to do so.
Harris rejects the premise that Congress has to be more specific in writing legislation; it may just have to be clear while following the rules of statutory construction. “Instead of making a list of all the things that [legislation] should apply to, what if Congress describes what it’s trying to address,” she told me. “That’s a drafting skill that is not currently emphasized but exists in the world.”
At a briefing for staffers in July, Harris explained the concept. Let’s say Congress enacts a new financial regulation. Being specific would mean listing the types of institutions subject to the new rules: banks, credit unions, credit card companies. Being clear would mean issuing instructions that all institutions that “accept deposits, provide loans, issue credit or facilitate electronic payments” are eligible. That incorporates future innovations.
Loper Bright still enables Congress to “confer discretionary authority on agencies,” as long as it’s explicit. Legislative drafters could explicitly add a mini-Chevron as a template into all bills, directly delegating certain decisions. One expert I talked to offered the example of the 2006 Postal Accountability and Enhancement Act. Instead of designating stamp prices in the legislation, Congress handed that power to the Postal Regulatory Commission, identifying specific objectives for setting postal rates and what criteria to consider. That intentional delegation has held up.
In the main, legislative drafters need to write bills with more in mind than getting a majority of lawmakers to agree. The new constituency is the courts. Congress must expect scrutiny of every word of text, and account for the hierarchical processes courts use to divine statutory intent.
Despite increasing policy complexity, the executive branch has 120 times more funding than the legislative branch.
That means using regular order to establish a committee record of legislative intent. It also means engaging with the regulatory process after a bill is signed, to reinforce that further. Giving substantive guidance to agencies in private, managing appropriations to ensure the rule is staffed and funded, and filing official public comments during the notice and comment period must be a greater part of the job, Harris explained. Though some might expect this to be routine, it varies wildly within Congress; many see their job as finished when a bill gets a vote. “There’s no feedback loop for how policy is implemented,” said Harris. “Those relationships, except for happy hours and text chains for people who used to work together, don’t exist in our system.”
All of this would require members of Congress and their staffs to have more training about administrative law, more expertise at their fingertips, and more time to engage in oversight. “It’s first and foremost a money problem and it’s not very much money,” said Schuman, of the American Governance Institute. By his estimates, congressional committee staff could be doubled and legislative support agencies enhanced through an additional 0.03 percent of the annual discretionary budget, barely even a ripple in federal spending.
One question is where this expertise would actually sit in Congress’s organizational chart. You could bolster the Office of Legislative Counsel, the group of attorneys who do the work of drafting legislation. You could hire more legal staff who understand how statutory construction is viewed by the courts; GAO has studied the potential for a new Office of Legal Counsel, which could serve some of this function. You could bulk up committees, so more subject matter knowledge is available inside the Capitol. Michael Thorning of the Bipartisan Policy Center points out that the intelligence committees in Congress designate staffers to members, bulking up both committee expertise and personal staff, while providing an outlet for expertise in committees that isn’t tied to whims of the chair.
Alternatively, Kevin Kosar, a senior fellow at the American Enterprise Institute, has co-authored a proposal for a Congressional Regulation Office, similar to the Congressional Budget Office (CBO), which reports on the fiscal implications of legislation. Kosar told me that Congress has the ability to follow the money, through requesting GAO audits. It can identify corruption at agencies through inspector general reports. “But Congress never built something for regulation,” he said. “People whose job it is to follow this important aspect of implementing the law.”
A Congressional Regulation Office could bring together statisticians to analyze the impact of regulations before the fact, and legal minds to review agency interpretations after. Much like CBO, it could offer advisory assessments on proposed rules to advise Congress, which would ultimately decide on whether to act. The Regulation Office could also produce lookback reports on how regulatory regimes are working. An archconservative proposal called the REINS Act would force affirmative approval of major agency rules; nonpartisan analysis could help ground those votes in reality rather than an anti-regulatory mindset.
Despite its conservative roots, liberal reformers have endorsed the Regulation Office concept, albeit with some reservations. “You have to be careful on how to set it up,” said Schuman, mindful of the Congressional Budget Office’s inherent biases. “CBO is like, it’s always too expensive. This can’t be always saying regulations are a burden. There have to be other measures, like saving lives.” Schuman prefers a both/and approach: He would establish an office to advise on regulation that details some of its expert staff to committees, which can carry out oversight functions. Such an agency would be relatively cheap to establish: CBO was budgeted $70 million in the most recent fiscal year, a flyspeck in the annual budget.
Regardless of where the capacity increases go, staffers say the status quo is unacceptable. Said Lorelei Kelly, a former staffer who has worked on improving Congress for two decades: “We have to look at how stark our situation is. I think Congress is at its eleventh hour.”
ALL OF THESE OPTIONS TO SOLVE the Loper Bright riddle only work if the courts serve as a good-faith actor in the process. Too often it seems like, when it comes to the judiciary, the other two branches are chasing a moving target.
Before overturning Chevron in practice, the courts had overturned it in theory by inventing new methods to strike down agency interpretations. The so-called “major questions doctrine” applied new standards of specificity to rules of “vast economic and political significance,” as determined arbitrarily by judges. Essentially plucked out of thin air by conservatives, the Roberts Court has used the major questions doctrine in recent years to strike down COVID vaccine mandates, greenhouse gas emissions standards, and student debt forgiveness.
There’s nothing stopping courts from conjuring up new doctrines to counter whatever Congress does to satisfy their alleged concerns in Loper Bright. “This Court is extremely hostile toward administrative governance,” said Josh Chafetz, a law professor at Georgetown University. “If Congress writes specifically, they could say that’s a major question so you didn’t do it specifically enough. If Congress wrote deference into the statute, they could say that rests on constitutional principles.”
Any successful legislation has hundreds of supportive lawmakers, with different reasons for voting yes. A motivated judge can always find stray committee reports or floor speeches to reinforce their version of legislative intent, and toss out rules based on that. Or they can randomly decide that federal agencies got the intent wrong, based on thin justifications. “Having been a clerk as a 25-year-old in the D.C. circuit court reading a FERC administrative record,” said Ramamurti, “when we talk about unelected bureaucrats setting federal policy we should be worried about those people. Me.”
Sabeel Rahman, who worked in the Office of Information and Regulatory Affairs under President Biden, believes that while agencies might take congressional engagement like public comments seriously, the judiciary probably won’t. “Courts won’t treat a letter from a member as anything special compared to the legislation authorized by Congress,” he said. “There’s no substitute for when Congress speaks with its full voice by putting something into statute.”
If judges persist in finding ways to nullify rules, Congress can pull out the nuclear weapon: jurisdiction stripping.
Even when the Court appears to restrain itself, it can find ways to wriggle out. For example, Chief Justice John Roberts said explicitly in the Loper Bright ruling that previous cases which relied on Chevron would not be overturned, and regulations allowed under the old framework remained good law. But a separate ruling from the Court this year, Corner Post v. Board of Governors of the Federal Reserve System, allows any entity newly injured by an agency rule to challenge it, even if the six-year statute of limitations has run out. This makes every agency rule in American history subject to judicial review, meaning they all could be reassessed under Loper Bright, even if they were once affirmed under Chevron.
In the face of an aggressive judiciary, Congress can get similarly aggressive. Given our separation of powers, any action from courts to overturn the intent of Congress can be met with a reaction. “Congress can tell the courts how to act and what to do,” said Devon Ombres, a former congressional staffer now at the Center for American Progress.
The easiest way to restore Chevron deference is to simply codify it. Sen. Elizabeth Warren (D-MA) and Rep. Pramila Jayapal (D-WA) have introduced versions of that bill, known as the Stop Corporate Capture Act. The bill defends the principle of Congress drafting legislation broadly to account for unforeseen changes, and directs that “if a statute that an agency administers is silent or ambiguous … a reviewing court shall defer to the agency’s reasonable or permissible interpretation of that statute.” This would eliminate the need to place a mini-Chevron into every bill. Rep. Nadler has separate legislation that would reverse the Corner Post ruling.
In a 2020 Prospect story, Rachel Cohen and Marcia Brown identified dozens of statutory rulings where Congress could simply reaffirm its stated intent and restore a regulation that courts have thrown out. For example, a district court in Texas decided in August that the Federal Trade Commission cannot make substantive rules blocking unfair methods of competition, and therefore cannot ban noncompete agreements. The language in that instance was rather clear (it literally says the FTC can “make rules and regulations”), but Congress could simply restate that clarity, and prevent judicial intervention.
There are two barriers to this. First, legislation is a multiyear process with fragile coalitions, and regulations take years to promulgate. By the time a court rules, the votes may not be in place to counteract them. But the more immediate barrier is that the abuse of the filibuster, and congressional leadership’s control over the legislative calendar, makes it difficult to get statutory overrides onto the floor for a vote.
One lawmaker has proposed a work-around for the second problem. In August, Sen. Ron Wyden (D-OR) introduced the Restoring Congressional Authority Act, which would set up a fast-track process to overturn court decisions that invalidate agency rules. The process would be similar to the Congressional Review Act of 1996 (CRA), which allows Congress to disapprove of finalized agency rules within 60 legislative days. CRA resolutions get privileged access to the floor without amendment or the need for a filibuster. Wyden’s bill would create the same fast-track timeline to overturn a court on a regulatory matter, giving Congress the final word on interpreting statutes.
“This is ultimately a question of political will,” Wyden explained. “Congress has got to dig in and stand up on a key constitutional principle.” He added that without flexibility for agency interpretation, Congress would always fail in its policy responsibilities. “I don’t think Ben Franklin was sitting around thinking about the internet,” Wyden said. “Legislation was always meant to be something breathable. You do your best to spell out where you want it to go.”
If judges persist in finding ways to nullify rules, Congress can pull out the nuclear weapon. Lawmakers can use “jurisdiction stripping” to confine judicial review to particular courts, or restrict what elements of a law courts can review. Although this would seem to be the most extreme alternative, there are actually recent examples of Congress defending its prerogatives this way.
In the bipartisan infrastructure law of 2021, Congress gave the D.C. district courts “exclusive jurisdiction” for challenges to broadband deployment decisions made by the Commerce Department, and even added that “the court shall affirm the decision” of the agency unless it finds corruption, fraud, or other misconduct. The Inflation Reduction Act barred judicial review of the process by which Medicare can select prescription drugs for price negotiation and the determination of that fair price, or the calculation of rebates for high-cost drugs that raise prices above the rate of inflation.
Liberals have talked about broader court reforms, like packing the Supreme Court with more judges, introducing term limits, establishing an enforceable code of ethics, or requiring supermajority or unanimous votes for some rulings. But jurisdiction stripping has the benefit of being operational, often bipartisan, and constitutionally sound. Lawmakers and experts I spoke with expect it to be used, perhaps by limiting all rulemaking challenges to the D.C. Circuit, where most rules originate. (This would remedy the problem of corporate interests “judge shopping” in right-wing courts in Texas when they want a rule overturned.) A more extreme version would terminate court challenges at the appellate level, cutting out the Supreme Court.
“Trying to strip all judicial review is the kind of thing that will get the judges’ hackles up,” said Chafetz. “But the Constitution is incredibly clear that Congress can do it. If Democrats have a trifecta in 2025 and are doing something with regulatory ambition, that’s exactly what I would do.”
NATI HARNIK/AP PHOTO
Many rulings during Chief Justice John Roberts’s tenure on the Court show a hostility toward administrative governance.
DEVELOPING A CONSISTENT RESPONSE to Loper Bright demands sufficient brainpower in the Capitol and a reinvigoration of the regular order that once produced a legislative record. You will be surprised to know that Congress has actually been working on these problems for half a decade.
In 2019, when Democrats regained the House, they created the House Select Committee on the Modernization of Congress, a rare example of government introspection. Over four years, the committee produced over 200 bipartisan recommendations for improving Congress as a workplace, as a writer of laws, and as a representative body for all Americans. Many of them were adopted, and Republicans kept the project alive when they took over in 2023, folding it into the House Committee on Administration.
Several of the new processes are things you probably thought Congress already did, like allowing members to file and co-sponsor legislation electronically, or making sure district offices have Wi-Fi. But the House also developed a Digital Service to support its technology needs, and created an eDiscovery platform to better process information. “One of the biggest wins, when generative AI came on the scene, within four months, a detailee from GAO was working on AI policy for the House,” said Harris, one of a small group of process obsessives pushing modernization. “That kind of responsiveness is unheard of.”
In perhaps the biggest change, the House delinked staff pay from member pay, which hasn’t risen since 2009. Now staff can be paid more than members, which could help with capacity-building, since Congress will be competing with industry for administrative law expertise. “If you want to keep them from going to K Street, you have to pay them more,” said Kosar. In addition, formulas were changed to increase funding for member offices, and House staffers obtained expanded tuition assistance and reimbursement for certification programs. Bipartisan common office spaces and staff retreats have been instituted to rebuild working relationships. Congressional staff retention actually improved slightly last year.
Dedicated workweeks for committees were instituted, edging away from the hollowing out of committee work. And Congress sort of reanimated the Office of Technology Assessment, through a new division of GAO called Science, Technology Assessment, and Analytics (STAA), which provides factual data and forecasting. It’s a bit slow and needs more funding, but it’s a beachhead for technical knowledge.
Congress needs to think of itself as an institution deserving of its place in the governmental pecking order.
There was no multibillion-dollar lobbying swarm to get Congress to think about improving its functioning. It’s been led by a few think tanks and focused organizations like POPVOX, the Foundation for American Innovation, and the American Governance Institute. Most of the leaders of the movement are former staffers. That it’s been modestly successful speaks to renewed urgency surrounding the degradation of the legislative branch.
“I think the hopeful story is we’re at the end of the pendulum swing of centralization of Congress and dysfunction of Congress,” said Dayton, who worked for the late Sen. John McCain (R-AZ). “There is a world where Congress says OK, we need to clean this up.” But the Loper Bright threat means this bespoke, artisanal modernization project must scale up to far larger ambitions. And that’s where things get dicey.
In July, the House Committee on Administration met to consider the post-Chevron world, and advocates expecting so little from Congress considered even that to be a victory. But while lawmakers in both parties offered homilies to Congress as the most powerful branch of government and highlighted the need to strengthen it, the old partisanship couldn’t help but reveal itself. Republicans saw Chevron as restoring Congress’s power to rein in the administrative state; Democrats derided a power grab from unelected judges.
While lawmakers and the witnesses generally agreed that Congress required more expertise and adequate appropriations, Rep. Joe Morelle (D-NY) pointed out that House Republicans had failed to pass a $7 billion legislative appropriations bill just a week earlier. “I feel like I’m watching Love It or List It,” Morelle said, referring to the reality home makeover show. “The one that wants to move, they list all these things that would cost $1 million with a budget of $100,000.”
Committee chair Rep. Bryan Steil (R-WI) asked the witnesses, which included Kosar and Chafetz, if Congress could review all rules coming out of agencies today. Every witness said no, and that Congress needed to build capacity. Later in the hearing, Steil wondered whether current staff could be pulled into regulatory oversight. Kosar replied, “I wish I could point to some legislative branch support agency personnel and say they’re not doing enough and should be brought into this other thing … But I just can’t.” Steil responded that there are 2.2 million nonmilitary federal employees, and surely some of them could be reallocated. (Only about 31,000 of those employees work for the legislative branch.)
Schuman put his best face on the hearing. “While the premises were different for Democrats and Republicans,” he said, “there was general agreement on the result: a massive increase of Congress.” He noted that the last appropriations law did increase funding for the legislative branch, during a time of relative cutting. But the unavoidable reality is that one party in Congress wants government to do less, and sees Loper Bright as helpful to that desire.
Despite this, some Republicans at the hearing acknowledged the need to write clearer laws and even participate in formal comment periods. If you squinted, you could see the stirrings of a unified resolve to fix Congress. Satya Thallam, a nonresident senior fellow with the Foundation for American Innovation, summed things up well. “If one branch does not energetically exploit its prerogative to make policy decisions, those policy decisions will be made elsewhere by the other branches,” he said. “Ambition must be made to counteract ambition, but apathy does not beget apathy.”
AFTER WATERGATE AND NIXON’S THREATS to impound congressional spending for partisan purposes, Congress overhauled its budgeting rules. After 9/11 and the anthrax scandal, it finally let constituents email comments rather than sending letters. Reforms have almost always come in response to crisis.
Whether Loper Bright is seen as a crisis remains to be seen. Fears of what the ruling could mean for policy areas like banking, student debt relief, artificial intelligence, workplace safety, disability policy, or climate change loom mostly in the future. So far, several administrative actions have been reversed due to the Supreme Court’s ruling, and others have been upheld despite it. There’s another Court precedent called Skidmore that gives a different kind of deference to administrative agencies, as long as their work is thorough and consistent. If chaos is necessary for Congress to pay attention, we’re not quite there yet.
But any reasonable observer knows Congress is in crisis. The House couldn’t keep its Speaker for more than ten months this session. The Senate confirms presidential nominees and little else. In 2023, only 27 bills were signed into law, the lowest output since the Depression. The Loper Bright threat combines with a ruinous process where nothing gets done.
Increases in capacity, new strategies for drafting, and forceful responses to the judiciary are the building blocks of a post-Chevron world. But Congress doesn’t only need to overhaul how it makes laws, but also the structures of contemporary lawmaking that have hollowed out the legislative branch. Lawmakers need to be able to govern again, within committees where expertise can be gained. Power needs to be shared rather than zealously guarded by leadership. Muscles that have atrophied must be rebuilt. Only then will the actions of courts and executive agencies be seen as attacks on Congress’s role as the nation’s primary policymaker.
In other words, Congress needs to shift its mindset, and think of itself as an institution deserving of its place in the governmental pecking order. “This is an attack on us to govern ourselves in a democracy,” said Sabeel Rahman. “New creativity and energy can be unlocked by this moment … it’s opening people’s eyes that they need to act.”
