Recent Supreme Court decisions have significantly altered the balance of power in the federal government, forcing Congress to rethink how it writes laws. In this episode, learn which decisions caused the shift, what the consequences are, how Congress is responding, and what options exist to push back against this new reality.
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Background Sources
Chevron Deference
Loper Bright Enterprises v. Raimondo. 603 U.S. 369 (2024).
“The Supreme Court Ends Chevron Deference—What Now?” Jeff Turrentine. June 28, 2024. Natural Resources Defense Council.
“The End of Chevron Deference.” Mario Loyola. August 6, 2024. The Heritage Foundation.
Skidmore Deference
“Skidmore deference.” Ballotpedia.
The Federalist Society and the Supreme Court
“The man who helped roll back abortion rights now wants to ‘crush liberal dominance.’” Steve Inskeep and Obed Manuel. November 25, 2024. NPR.
“The conservative club that came to dominate the Supreme Court.” March 4, 2021. The Harvard Gazette.
Audio Sources
Restoring Congressional Power over VA After Loper Bright Enterprises v. Raimondo
December 18, 2024
House Committee on Veterans’ Affairs
Witnesses:
- Chad Squitieri, Assistant Professor of Law, Catholic University of America
- Jonathan M. Gaffney, Supervisory Attorney, American Law Division, Congressional Research Service
- Philip Wallach, Ph.D., Senior Fellow, Social, Cultural, and Constitutional Studies, American Enterprise Institute
- John Vecchione, Senior Litigation Attorney, New Civil Liberties Alliance
Clips
17:50 Rep. Mike Bost (R-IL): One example of VA ignoring the will of Congress was VAs decision to transform the character of the VA Home Loan Program through VASP. Especially, the Biden administration changed its interpretation of the law that allows the Secretary to, on a limited basis, take over mortgages at a low interest rate for a Veteran or survivor in need. VAs new interpretation of the statute allows VA to take over mortgages for around 60,000 veterans facing foreclosure at an interest rate of 2.5%, well below the current market rate. VAs decision to become a lender for tens of thousands of veterans who are high risk borrowers at an expense of the taxpayer directly undercuts the intent of Congress in the law that we passed. Remember, members on both sides of the aisle on this committee pushed back on the administration for this move. Despite this, our letters and concerns were ignored.
33:05 Chad Squitieri: As to the courts, Loper Bright frees judges to give legal effect to a statute’s best reading. Prior to Loper Bright, courts were often required to adopt a less than best reading of a statute, simply because that less than best reading was offered by an administrative agency. This required courts to place a thumb on the scale in favor of one class of litigants, federal agencies, and thus disfavor other types of litigants, such as veterans, who might argue that a federal agency acted unlawfully. Federal judges, however, should not give undue preference to any litigant that comes before them, including federal agencies.
34:35 Chad Squitieri: No longer should legislators simply hope that a broadly worded statute will be routinely interpreted by a politically friendly agency. That is because, after Loper Bright, statutes should be interpreted by politically independent judges.
43:20 Jonathan Gaffney: Chevron involved a two step test, requiring courts to ask first if a statute was ambiguous, and second, if the agency’s rule interpreting that statute was reasonable. If the answer to both questions was yes, the court was to defer to the regulatory interpretation of the statute. In the 40 years since Chevron was decided, it became the most cited Supreme Court administrative law decision, and the CABC alone has cited Chevron in 170 of its precedential decisions. Earlier this year, on June 28, the Supreme Court issued its decision in Loper, reversing Chevron as inconsistent with the Administrative Procedure Act or APA. In particular, the Court held that the APA’s charge that courts decide all relevant questions of law when reviewing an agency action conflicts with Chevron deference to agency interpretations. As a result, courts will no longer defer to an agency’s interpretation of an ambiguous statute, and instead must decide the single best meaning of that statute. The Supreme Court did not, however, overrule individual cases applying Chevron, and those cases continue to be binding law. Although courts will no longer defer to agencies’ regulatory interpretations of ambiguous statutes, courts may, under a separate doctrine called Skidmore, consider the agency’s expertise as one of several factors when trying to decide what the best meaning of a statute is. The Supreme Court also emphasized that sometimes the best meaning of a statute may be that Congress intended to give an agency discretion in how to carry out the statute, such as explicit authority to define terms or to fill up the details of a statutory scheme. Loper does not direct Congress or agencies to change how they legislate or regulate. It only speaks to how courts should review statutes and the regulations interpreting those laws.
48:15 John Vecchione: It should be understood that the majority opinion relied on this Congress’s written will that courts must decide all relevant questions of law.
53:45 John Vecchione: One of the things that has always struck me as odd is that congressional agencies rarely comment on regulations when they’re proposed or definitions when they’re proposed. We comment all the time, and then the agency has to respond in writing about why it’s doing what it’s doing. So you’ve got the power of the purse. But I also think that if you see a regulation coming along, notice a comment regulation, I don’t know why more congressmen don’t. Rep. Mike Bost (R-IL): I agree.
1:09:10 Rep. Morgan McGarvey (D-KY): What’s happening here is that federal judges, a politically unaccountable class of elite, law school educated individuals are giving themselves more power over the people we represent and over the public servants and experts in agencies who have spent years on these topics and, importantly, whose heads are accountable to presidential elections every four years, and congressional oversight all the time. I think everybody on this committee knows how often we drag the VA into Congress. So why is this important? Because rich lawyers, lobbying firms, claim sharks, think tanks who are funded by big business and the Koch brothers, like the two we have here in front of us today, and others with time and money and influence to bring lawsuits, can hire their own experts who will try to get unelected judges to make laws that shockingly benefit them.
1:24:50 John Vecchione: When somebody is denied a benefit like the prosthetic case we heard about, they have standing because they’re immediately injured. It’s why the benefits cases get up to the Supreme Court quite often. And the language about that, I was asked by the chairman about the interpretation of language. Once you’re denied something, those people have standing because they’re immediately injured. And Mr. Gaffney’s written testimony explained where the veterans’ claims go and how they’re done. And it’s almost always they were denied something. And Chevron, when there was an ambiguity, the government always won. What’s happened is that immigrants and veterans on the remands are more likely to win than they were before, because once ambiguous statute was interpreted in a regulation by the agencies, they won.
1:45:50 Rep. Amata Coleman Radewagen (R-American Samoa): Mr. Gaffney, how can Congress influence future VA regulatory policies and guidance to ensure that the laws are being carried out as Congress intended? Jonathan Gaffney: There are a number of ways that Congress could do so. The first is through the regular legislative process, by passing legislation that more specifically directs VA in what Congress wants VA to do. Congress can use its appropriations power to shape agency action, and Congress can come back after a VA regulation or after a court decision interpreting a statute and amend the statute to make clear if the agency or Congress or the courts, in Congress’s mind, got the interpretation wrong.
Congress in a Post-Chevron World
Committee on House Administration
July 23, 2024
Witnesses:
- Dr. Josh Chafetz, Agnes Williams Sesquicentennial Professor of Law and Politics, Georgetown University Law Center
- Wayne Crews, Fellow in Regulatory Studies, Competitive Enterprise Institute
- Dr. Kevin Kosar, Resident Senior Fellow, American Enterprise Institute
- Paul Ray, Director, The Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation
- Satya Thallam, Senior Vice President of Government Affairs, Americans for Responsible Innovation
Clips
1:04:25 Satya Thallam: In the 40 years since the decision, the total number of congressional staff has actually decreased, has actually gone down by a few percent. In the last 30 years, the number of committee staff has gone down by 40%. Does anyone on the committee believe Congress’s work has become less complicated, confusing and therefore easier since then? Members of Congress may be wary of the self aggrandizing appearance of accumulating more staff, but human capital and expertise are embodied in people, and this kind of a decrease in intellectual capacity has only one result in terms of productivity and effectiveness.
1:16:55 Dr. Josh Chafetz: Eliminating a doctrine in whose shadow Congress has drafted for decades and replacing it with something significantly less certain in its operation is not congressional empowerment, it’s judicial empowerment.
1:17:05 Dr. Josh Chafetz: The agencies seeing this posture by the courts are likely to respond by preemptively trimming their sails, issuing only those regulations that they think are likely to meet with judicial approval, and refraining from altering old interpretations even as new information and new technologies become available. The flexibility that’s a hallmark of the administrative state, the flexibility that Congress has designed into the administrative state, will be substantially undermined, all under the flag of supposedly empowering Congress.
1:17:30 Dr. Josh Chafetz: So what can Congress do to respond to this judicial power grab? Well, first, in the realm of bill drafting, Congress can write deference into individual bills, empowering agencies, or it could even draft a standalone bill, reinstituting Chevron deference. Because Loper Bright claims to be an interpretation of the Administrative Procedure Act, not a constitutional holding, it can be reversed by statute.
1:18:30 Dr. Josh Chafetz: If the court is going to insist that Congress make policy at ever more granular levels, then Congress will need to build an institutional infrastructure mirroring that which currently exists at the agencies. This means large increases in the number of staffers and diversifying the experience of staffers, including hiring many with graduate degrees in the social and physical sciences and many more with security clearances. It means paying those staffers well enough to retain them and giving them access to resources like sophisticated information technology databases and perhaps even in some cases laboratories.
1:19:10 Dr. Josh Chafetz: Even a massive increase in congressional capacity could never fully substitute for administrative expertise. There is a reason that no modern democratic system that I’m aware of has its legislature making policy at the level of granularity at which agencies regulate. Moreover, many governance decisions in the executive branch are specific to circumstances that arise after implementation has already begun. Asking Congress to resolve those issues ex-ante is unlikely to succeed.
1:28:25 Dr. Josh Chafetz: First of all, Congress has created these agencies. Congress has passed their organic statutes. Congress has delegated authority to these agencies. And since 1984 Congress has done so in the shadow of Chevron deference. And this isn’t just a hypothetical. We have really solid research showing that Chevron deference is the tool most understood by congressional drafters, by staff in Ledge Counsel, and by staff elsewhere on the hill. They understood they were drafting these statutes in light of Chevron deference and they understood that if they didn’t want the agencies to have interpretive freedom, that they should draft with more specificity. And so they did. So what that means is that by taking this away, essentially the courts are saying this thing that Congress thought it was delegating to agencies, which is this interpretive freedom, in fact, the agencies don’t get to have that. And what replaces that is not power flowing back to this institution. What replaces that is the courts giving their own sort of de novo interpretations of these statutory regimes. So it’s not passing from unaccountable bureaucrats to the accountable Congress. It’s passing from somewhat accountable bureaucrats to even less accountable federal judges.
1:35:35 Paul Ray: It would certainly be impossible for Congress itself to address the topic of every rule making undertaken by the executive branch — there are several hundred rule makings open for comment right now — but it could answer or resolve a number of the most important rule makings. There are only a few hundred major rule makings per year, typically. It’s conceivable that Congress could itself take the initiative in a number of those proceedings. The second point I’d make is that if Congress were to narrow the scope of statutes, then states and other law making bodies across the country could take up some of the work for Congress. Barry Loudermilk (R-GA): I like the idea of federalism, and that plays into it. So real quickly, the last question. Do you think that there are any mechanisms that we already have in place to do this work, or do we just need a new system and new processes to be created and implemented? Paul Ray: Congress will not be able to exert effective control as long as just just responding to agencies. So I think there are some existing systems that could be used effectively today, but really what’s called for is a new approach.
1:39:40 Dr. Josh Chafetz: I’ll also add that there’s another case that came down three days after Loper Bright, which is the Corner Post decision. So the Federal law says that there is a six year statute of limitations for challenging agency actions. It had always been thought that it was six years from the time the agency action was finalized. Terri A. Sewell (D-AL): And not when that person was injured. Dr. Josh Chafetz: And in Corner Post it says it’s six years from the time that regulation was applied to that regulated entity, which means that every regulation can now be challenged indefinitely. There’s no point at which a regulation has exhausted — Terri A. Sewell (D-AL): So what does that mean coupled with the Chevron deference case? Dr. Josh Chafetz: Corner Post means that there are going to be a flood of cases that would not have previously been filed. And coupled with Loper Bright, in Loper Bright, the majority claims that cases that relied on Chevron are still good law, we’re not going to reopen those, but those are now available to be challenged again. And if the judges think that there’s some error that goes beyond mere reliance on Chevron, then even consistent with Loper Bright those agency and long standing agency interpretations would be open for reevaluation by the court.
1:41:05 Terri A. Sewell (D-AL): How do you think that this will hurt potential policy making? Dr. Josh Chafetz: Well, it’ll make policy making less robust, less responsive, less likely to address the problems that Congress and that the American people want to address, and less responsive in adapting to changes in scientific knowledge or in technology in order to adjust pre-existing regulations.
1:52:55 Joe Morelle (D-NY): How might the decision affect the ability of agencies to respond quickly to advances in technology like artificial intelligence or other challenges? Dr. Josh Chafetz: I’d like to begin by noting that agencies can do almost nothing with relative ease, or I suppose you’d have to emphasize relative a great deal. Most agency rule making takes years. So the idea that this is something that agencies just sort of pop off and create regulations all the time, I think, is somewhat misleading. There’s a lot of time and effort and conversations that go into producing rule making in the first place. One of the things that Loper Bright does, it says that if agencies want to get any deference at all, even the lesser so-called Skidmore deference, which is basically just sort of respect for for the agency’s expertise, if they want to get take advantage even of that, their interpretation has to remain consistent over time. And this is a problem, because facts on the ground change over time. And so when I look back, for example Representative, Loudermilk was referring to Justice Scalia earlier. Justice Scalia was a huge fan of the Chevron decision. When I look back to his major essay praising the Chevron decision, one of the things he praises is its ability to be responsive to changes over time, such that agencies don’t get locked into their first interpretation. The Supreme Court has now done a 180 on that and said, essentially, if you want even minimal respect for your interpretation, you have to be locked into the first decision you make. AI is a great example. The agencies are just coming to terms with AI now. Who knows what the state of AI will be in five or 10 years. It seems crazy to lock them into their initial interpretations at this point.
1:56:25 Dr. Josh Chafetz: Chevron was a two step test. Step one was, if Congress has clearly expressed itself, that’s the end of the story. If Congress has clearly expressed itself, the agency has to do what Congress says. Only if the statute is silent or ambiguous, under Chevron, would there be any deference given by the courts. And then beyond that, the Administrative Procedure Act creates a whole host of procedures that the agencies have to go through in order to regulate. And if the courts didn’t think that the agencies went through the correct procedures, they could also vacate regulations. So it’s not that there was unconstrained regulatory authority in the agencies. They had procedural requirements. And of course, if Congress spoke to the issue, they had to do what Congress said. It’s only if they went through the correct procedures, and Congress had been silent or ambiguous that they got any deference under Chevron.
1:59:30 Laurel Lee (R-FL): How can we better facilitate meaningful collaboration between lawmakers, legislative staff, and then agency experts to really draw upon all of that collective experience during the legislative drafting process? Dr. Kevin Kosar: Yeah, the drafting process. Well, I think the drafting process, in many instances, has been bedeviled because there’s not a regular order being followed. Bills are being slapped together with a lot of other bills. You guys are being called to the floor and told it’s time to vote on the rule and please line up by party and don’t scuttle things. Reorienting, getting back to a more regular process where committees are in the seat, and when committees report out a bill, those things get preference on the calendar, would allow a process by which you could be more deliberative and you could draw more on the expertise that’s already available to you and get it in there.
Music
Tired of Being Lied To by David Ippolito
