On June 28, 2024, the U.S. Supreme Court decided in Loper Bright Enterprises v. Raimondo, by a 6-3 majority, to overturn Chevron-deference, a longstanding precedent that implored courts to defer to an agency’s interpretation of an ambiguous statute. Almost a month later, the U.S. House of Representatives Committee on House Administration held a hearing titled “Congress in a Post-Chevron World.” In that hearing, the witnesses engaged with members of Congress and stated that, in its current format, Congress is not set-up to adequately review rules promulgated by federal agencies. As a result, the witnesses recommended members of Congress take multiple steps to ensure Congress plays an active role in the post-Chevron rule. Some of the recommendations that came out of the committees were as follows:
- Increase specificity in statutory texts on two fronts: (a) explicitly allow for delegation of authority to agencies; and/or (b) specify outcomes Congress is looking for in-order of preference
- Push members to utilize existing resources, including the Congressional Research Service, as a tool to better understand an agency’s proposed rule or regulation and its potential impact on the concerned industry
- Motivate members to actively participate in the notice-and-comment rulemaking processes of multiple federal agencies to directly inform agencies whether their actions are in-line with Congress’ intent
The same day, Senators Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.), alongside other Democrat Senators in the U.S. Senate, introduced for adoption the Stop Corporate Capture Act (“SCCA”). Their belief lies in the fear that a post-Chevron world would hinder the government’s ability to effectively govern and prevent the U.S. from addressing future challenges, while assisting powerful corporate interests to seize control over the policymaking that helps all Americans. In passing the Act, the SCCA would codify Chevron into federal law, reduce regulatory delays, and promote public integrity in the government’s operations to properly implement laws passed by Congress. Other goals of the SCCA include the below:
- Place a 120-day cap on the Office of Information and Regulatory Affairs review of all proposed agency regulations
- Create the “Office of the Public Advocate,” which would not only improve agencies’ public engagement practices, but encourage and support everyday Americans in participating in regulatory proceedings
- Require all future rulemaking processes to disclose conflicts of interest and industry-funded research, as well as require the analysis of scientific and other relevant information that raises a specified corporate conflict of interest
Although the impact of Loper Bright’s elimination of Chevron-deference will remain uncertain for some time, Chevron’s absence does warrant cause for concern. As Justice Kagan alludes to in her dissent, the death of Chevron may open the floodgates for risk-tolerant litigants who now have a better chance at overturning unpopular rules and regulations. To avoid this outcome, Congress, in-line with the Committee’s recommendations, should actively discuss plans to change the role of congressional staff to provide in-house regulatory analysis to better inform members. Another option is for Congress to appoint full-time liaisons between Congress and federal agencies to create more harmony between the Legislative and Executive branches in issues that previously fell under Chevron’s purview. Only time will tell if Congress will actually step-up to the challenge by implementing these solutions, or create more cause for concern in an already uncertain post-Chevron world.
Aaron Silva, Summer 2024 Law Clerk
Mr. Silva attends The George Washington University Law School where he is currently in his third year of law school.
Seth Berenzweig is a Managing Partner at Berenzweig Leonard. He can be reached at sberenzweig@berenzweiglaw.com.