Congress Struggling with Post-Chevron World

Republicans on Capitol Hill have introduced legislation that would require a review of all federal court decisions, laws, regulations and legal cases that used the Chevron Deference Doctrine as the basis for decisions.

The introduction of those bills reflects Congress’s effort to adjust to the post-Chevron world. In that regard, some GOP members of Congress are pressing for a review of cases in which the Chevron Deference Doctrine was used. While they may not be questioning those decisions from a legality perspective, they are questioning them from a public policy perspective.

In the Senate, Sen. Tom Cotton, R-Ark., has introduced S. 4641, legislation that would require the Government Accountability Office to submit a report to Congress identifying where federal courts have used the Chevron Deference Doctrine to reach a decision in favor of deference. The bill also would require federal agencies to conduct a review of cases where the agency was a party and was accorded Chevron deference.

 “Overturning Chevron was a victory for Americans and the Constitution. Congress should make laws, not unelected bureaucrats,” Cotton said. “My legislation will make sure the verdicts that used Chevron to justify government overreach are reviewed.”

In the House, Rep. Mark Green, R-Wis., is taking a different approach. His legislation, H.R. 8889, would force agencies to sunset rules that were upheld using the Chevron Deference Doctrine if Congress has not enacted legislation codifying the rules. The Government Accountability Office would be required to compile a list of executive actions that have been upheld by Chevron Deference. The actions would begin sunsetting every 30 days on a rolling basis unless they are upheld by congressional action.

“Chevron Deference not only usurps Congress’ lawmaking authority, but gives unelected and unaccountable bureaucrats in Washington enormous control over the lives of Americans,” Green said. “My legislation seeks to right this imbalance and restore Congress and the judiciary to their rightful places in our Constitutional system.”

On the other side of the issue, Congressional Progressive Caucus Chair Rep. Pramila Jayapal, D-Wash., is pressing Congress to pass her bill, H.R. 1507, which simply would codify the Chevron Deference Doctrine. Jayapal said that the bill makes it clear that “judges are not policy experts and that it is entirely appropriate for knowledgeable regulatory agencies to respond effectively to protect Americans.”

Other members of Congress are focusing on how Congress can be as specific as possible in legislation so as not to risk judicial review. The House Administration Committee has scheduled a July 23 hearing on “Congress in a Post-Chevron World.”

“As Chairman of the Committee on House Administration, I’m focused on strengthening the Legislative Branch’s capabilities,” Committee Chairman Rep. Brian Steil, R-Wis., said, immediately following the Supreme Court decision. “With Chevron being overturned, we will now begin a robust discussion regarding how the People’s House can play a prominent role in bringing common sense back to the regulations coming out of Washington.”

On the Senate side, Sen. Eric Schmitt, R-Mo., has formed a working group of Republican senators to discuss the impact of the decision and how Congress can more effectively legislate on issues that, in the past, would have been left up to administrative agencies.

Notably, the senators have sent letters to 101 federal agencies, asking how the regulatory decisions will be handled following the Loper decision.