The Chevron doctrine was an idea invented by the Supreme Court 40 years ago that, whatever the reasoning and intention, effectively gave executive agencies the power to make law.
The Supreme Court in Loper Bright v. Raimondo last week struck down the Chevron doctrine. What this means for our republic is now up to Congress.
Under the Chevron precedent, if there was any ambiguity in the laws created by Congress, bureaucrats could interpret the laws how they want and write the regulations that they want. If someone was harmed by a regulation and sued, saying a federal agency had overstepped its bounds and was usurping power Congress hadn’t granted it, Chevron told all federal courts to defer to the agency.
In effect, Chevron allowed the executive branch agencies to make laws, even though the Constitution says only Congress should make laws.
But that doesn’t mean Congress will make laws.
Congress is dysfunctional in the extreme and rarely makes law unless it has to. Lawmakers are punished for compromising with the other party, and minority parties find an advantage in simply being oppositional.
Congress has passed a couple of bills through regular order in the past decade, but almost everything that has passed was passed amid a once-in-a-lifetime crisis, such as COVID-19, or was passed through stretching the reconciliation process so as to avoid now-routine filibusters.
The government has repeatedly shut down, and it is now normal for Congress to fund the government through “continuing resolutions,” which are supposed to be temporary patches.
Along the way, the makeup of Congress has changed, and the median member of Congress does not see passing laws as central to his job. Congress, like many other crucial institutions, has become a mere platform for would-be celebrities to increase their profile.
So, Congress is happy to hand over its lawmaking powers to the courts and the bureaucracy. (Congress happily handed over its war-making power to the president decades ago.)
More specifically, Congress has gotten in the habit of being sloppy and vague in its lawmaking — like a child whose parents will always clean up after him.
Now, with Chevron on the same ash heap as other bad precedents, can Congress adapt and start legislating, and legislating with enough clarity that the federal agencies will know what they’re being told to implement?
J.D. Rackey and Michael Thorning have a prescription over at the Bipartisan Policy Center.
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Two highlights include (1) Congress giving itself more explicit powers and processes to approve, reject, or modify agency rules, and (2) Congress staffing up to legislate with more detail and assist the agencies better.
The idea that Congress should be the one making rules is lost on much of the commentariat and the ruling class. But Congress should be the body making rules. Let’s see if it can.
