Abandoning the Chevron Doctrine will not fix Congress
The Supreme Court recently heard two cases challenging the Chevron doctrine. This principle is the result of the landmark 1984 case Chevron USA v. Natural Resources Defense Council, which ruled that judges must defer to a regulatory agency’s interpretations of laws administered by the agency as long as the law is ambiguous and the agency’s interpretation of it is reasonable. The final decision is in Luber Brite Enterprises v. Raymundo And the issue accompanying it Relentless, Inc. Against the Ministry of CommerceIt may have direct effects on the power of the administrative state and the form of administrative law. But some have claimed that getting rid of the Chevron Doctrine could help reform Congress. This is a mistake.
During oral arguments for Luber Brite Projectsattorney (and former solicitor general under George W. Bush) Paul Clement He argued that deference to Chevron was responsible for Congress’s decline from its relevance. As Clement put it,
I think you just have to look at the docket of this court. It was a major one [agency] One ruling after another. It was not one platform after another. I would think Congress might have taken up student loan forgiveness if this was a really important issue to… Congress. I thought they might have fixed the eviction moratorium.
Clement was putting his finger on a very real phenomenon. In recent years, Congress It didn’t go all that far On the public policy issues—abortion, gun policy, environmental regulation—that matter most.
Despite this insight, Clement’s Chevron-centric explanation for Congress’s increasing irrelevance is not convincing. Because of the excessive flexibility Chevron provides to administrative agencies, he said, members of Congress trying to take action on a high-profile public policy issue often face an easy choice: either, as Clement put it, “compromise and craft a long-term solution at the global level.” It may be expensive to acquire a primary competitor, or alternatively, just call up your friend, who was your co-worker, now in the executive branch and ask him to provide everything on your wish list based on a broad legal period.
But the argument that Chevron created a permissions structure to forego passing meaningful legislation faces a timing problem. For one, Chevron It was decided in 1984, but political science research Indicates Congress’s ability to legislate on salient issues has been diminishing intermittently since the 1940s. One exception to this decline came in the second half of the 1980s – immediately after. Chevron This was decided when Congress passed major legislation addressing taxes, in the Tax Reform Act of 1986; Immigration, in the 1986 “Reagan Pardon”; and environmental regulation, in the 1990 amendments to the Clean Air Act. These issues have bedeviled Congress for the past three decades, but the passage of these bills suggests that Chevron does not adequately explain Congress’s recent impasse.
The fact that stalemate on high-profile issues has reached historic levels since the 2000s suggests that larger powers are to blame. As Clement pointed out, members of Congress care about getting re-elected. This is their priority. Political polarization and gerrymandering reduced competitiveness in general elections, thus focusing members’ energies on their primaries. The real problem with Congress’ gridlock is that surviving these primaries discourages compromise with the other side, even though such compromise is necessary to pass legislation. When these distorted electoral incentives confront the legislative hurdles faced by a supermajority Congress ProcrastinationA stalemate ensues. The surest way to get re-elected as a legislator is to avoid the pitfalls of legislation. It is better to remain “pure” and avoid any potential primary competitor than to compromise and do something meaningful.
It is this dynamic, not Chevron, that explains the shift in the Supreme Court’s agenda from battles over laws to battles over agency rules. Everyone agrees on the effects: With Congress doing almost nothing, agencies are left trying to leverage their influence Old laws to solve new problems. For example, the Clean Air Act was originally designed to reduce air pollutants such as sulfur dioxide and lead, and, at the very least, it was not designed to address the unique challenges of carbon dioxide emissions and global warming. But with Congress unable to pass legislation on the matter, the EPA was left trying to leverage its own legal language to regulate carbon dioxide.2First by including gas inside Legal definition of air pollution Then by designing new and complex regulatory schemes based on abstract legislative text. As a result, litigation The Supreme Court is increasingly slapping the EPAAnd then everyone gets angry at the court. But it is important to realize that the agency’s reliance on Chevron is a symptom, not a cause. It is the political and structural incentives provided by Congress that begin this recurring cycle.
However, it is encouraging that leading legal conservatives like Clement are expressing discomfort with the current situation in Congress. Conservatives often emphasize the importance of the separation of powers, but modern constitutional conservatism has also long been concerned with maintaining an appropriate balance of power between Congress, the executive branch, and the courts. For this reason, during the early stages of the conservative legal movement in the 1980s and 1990s, Like Justice Antonin Scalia They were staunch advocates of Chevron. At the time, the fear was that the Warren Court had given the federal courts too much power. When faced with the question of who should decide how to resolve legal ambiguities in administrative law—agencies or courts—conservatives were primed to choose the agencies.
Things have changed. As Yuval Levin of the American Enterprise Institute notes, efforts by conservatives to reshape the judiciary It arrived “An impressive high water mark.” At the same time, the administrative state expanded in size and power, while Congress was transformed into a “Parliament of criticsIn other words, as Levin put it, conservatives have “underestimated the importance of Congress” for too long. This must change, and Clement’s salient argument is in some ways a very good sign of a shift.
Congress needs to be stronger if we are to restore the proper balance of power in our constitutional system. Conservatives increasingly value this vision.
But the courts are such a blunt and unresponsive instrument that they are unable to bring about the necessary change. Undue reliance on them to respond to political problems, even systemic problems, would lead to negative reactions. Tinkering with administrative law principles like Chevron will not save Congress from the statute of limitations. Under additional judicial pressure, the current Congress may choose to undermine the judiciary before bearing the costs of legislation. The only way out is through: We must attack Congress’ weakness directly. The root of this problem is electoral incentives.
Those concerned about the state of Congress should support reform proposals that would restore electoral incentives for members of Congress to pass legislation on issues of importance. It won’t come through Chevron, but it can come through two other ways: First and foremost, reforming our system of primaries. Perhaps ranked-choice voting could offer a solution, as is being tried in Maine and Alaska. Perhaps nonpartisan state redistricting commissions or national limits on partisan redistricting — imposed by Congress, not the courts — could stop the state-level arms race that has reduced the number of swing districts. Removing restrictions on contributions to political parties could help reempower our weak parties, weaken the extremist interest groups that have taken their place, and thus reduce incumbents’ fears of succumbing to any attempt to work with their colleagues across the aisle. Secondly, we need to make it easier to pass legislation in the first place, through means such as Reform (not abolish) the Senate filibuster. These are just suggestions for discussion. We don’t have the answers. But we are certain that the solutions to congressional dysfunction are rooted more in the incentives offered by the legislature than in the legal principles adopted by the courts.
Congress’ decline has been decades in the making. It didn’t start with Chevron, and the Supreme Court’s ruling won’t provide a quick fix. Removing distorted electoral incentives for inaction may be a slower path to reform, but it is also a safer path.