Congress in the Wake of a Chevron Change: Resources and Recommendations
A potential change in the Chevron doctrine could occur in summer 2024 when the Supreme Court issues a decision in two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. (For an excellent background on the cases and their relation to Chevron, we recommend this video.) It is likely that the Supreme Court will limit the deference given to agencies’ interpretation of ambiguities in law, requiring Congress to be clearer in statutes and to be more proactive as new issues arise, rather than depending on executive agencies to respond. If Congress fails to reassert its authority in filling the role that was previously occupied by agency rulemaking, a power shift may result in a more activist judiciary, which will be called upon to settle ambiguities and provide interpretations where law is lacking clear Congressional intent.
A renewed emphasis on the policymaking duty of the Legislative branch could require a new approach to legislative drafting that ensures Congressional intent is well defined, and prompt a more active dialogue between the Legislative and Executive branch to preempt ambiguities in intent, interpretation, and implementation. Skeptics of Congress’ ability to respond to this shift are expressing concerns that the Legislative branch won’t be able to understand and engage with the minutiae of implementation or to act in a sufficiently agile way to address changing conditions.
Though even a subtle change in how the Supreme Court views the Chevron doctrine may be temporarily destabilizing, a recentering of authority in the Legislative branch is an opportunity to boost Congressional capacity and strengthen Congress’ engagement in relation to the Executive branch. Now is the time for Congress to build on recent modernization wins, invest in itself, and reclaim its authority as an equal branch of government.
The Court’s decision on the future applicability of Chevron will likely be released in June, and reactions from the press, scholars, and the public will follow. If Members and staff are prepared with an understanding of the original doctrine, the change that has occurred, and its potential impacts, Congress may be able to better drive the conversations regarding next steps for the institution in a proactive direction.
In anticipation of this decision, POPVOX Foundation has compiled the following list of recommendations for Congress to consider.
Recommendation 1: Educate Members and staff on the possibilities of a Chevron change so they are empowered to be active participants in a solutions-focused discussion.
A change in Chevron, regardless of the scope, presents Congress with the opportunity to demonstrate that it can thrive with an increased expectation that policy is set in the Legislative branch. By preparing Members and staff with an understanding of the subject and the potential impacts of the Court’s decision, concerns and fears that could be raised in the press can be addressed with productive dialogue about how this ruling invites Congress to reclaim its role as the leader of the policymaking process to produce well-designed, implementable legislation.
Solution 1
Host closed-door briefings or roundtable discussions to provide Members with a Chevron-101 background presentation and then host a discussion about potential outcomes, impacts, and implications on Congress’ approach in legislative drafting and role in statute-implementation. Similar programming should be made available to staff both in DC and district offices to assist with answering press inquiries and addressing constituent concerns.¹
Solution 2
Prepare Members and staff with briefing materials that outline three conceptual outcomes that can best prepare them for potentials of what the Court may decide in June.
Scenario 1: Return to Skidmore Deference
Court Deference: Courts defer to agency interpretations based on the persuasiveness and thoroughness of the agency’s reasoning.
Congressional Action: Increased pressure on Congress to draft precise legislation, particularly on technical issues or to weigh in with letters or statements of intent as courts consider new issues.
Emerging Technologies: Necessity for Congress to enhance legislative detailing and expertise in new areas not yet addressed by current law.
Scenario 2: Reduction or Removal of Judicial Deference
Court Interpretation: Courts take on primary responsibility for interpreting ambiguous statutes, limiting or removing deference to agencies.
Legislative Revision: Congress faces increased pressure to clarify laws and reduce ambiguity, a process that can be politically sensitive.
Regulatory Consistency: Potential for regulatory gaps in nuanced areas due to lack of court expertise, necessitating more proactive Congressional updates and specialized oversight.
Scenario 3: Complete Removal of Judicial Deference on Agency Decisions
Policymaking by Judiciary: In absence of Congressional action on ambiguous or new issues, courts that do not defer to agency interpretations may begin making their own decisions on policy matters.
Congressional Guidelines: Pressure on Congress to provide clear, detailed legislative frameworks to avoid leaving a vacuum filled by judicial interpretation, emphasizing the importance of proactive legislative action, especially as new issues arise.
For each of the above possible outcomes, Members should be given an opportunity to participate in roundtable discussions or listening sessions to explore what Congress’ response may be and the resources that will be needed to adequately address the change in Congressional authority.
Recommendation 2: With greater Congressional authority comes the need for greater Congressional capacity.
Regardless of the scope of a change in the Chevron doctrine, Congress should re-establish itself as an active participant in policy implementation. In addition to a more refined approach to legislative drafting, changes to Chevron make clear the need to have much stronger feedback loops between Members, their staff, and the federal agencies that carry out laws that are passed. Doing this well will require additional personnel within Member personal offices, committees, and within institutional offices such as the Office of the Clerk, the Congressional Research Service, Government Accountability Office, and the Office of Legislative Counsel. New hires and their pre-existing peers will require upskilling to understand the expanded role that Congress has to play.
Solution 1
Members have been in need of increased personnel resources for decades, but a change in Chevron provides a pressing reason for the House to strongly consider increasing the Members staff cap. Currently, Members of the House are capped at hiring eighteen individuals to serve on their staff, divided between the DC and district offices. This results in about eight to ten DC based staff, with three to four on the legislative team. With the widespread adoption of teleworking capabilities, the House is finally at a moment where it can boost its Congressional capacity without having to worry about where to fit more desks in the three House Office Buildings.
Solution 2
Assess resources available to the office of Legislative Counsel and consider expanding the team and scope to provide Members with legislative drafting support that pre-addresses ambiguities to a much more detailed degree as would be necessary to address implementation details. Legislative intent will have to be clearly defined, with legislative drafting approaches rethought and refined. One approach would be to draft bills that identify outcomes rather than prescribe implementation details, with more fully developed analysis and program evaluation elements.
Solution 3
Revive the Congressional Research Service’s (CRS) authority and relevance by tapping this vital resource as a key institutional support partner in boosting Congressional knowledge and implementation impact. Congress is already equipped with its own internal think tank at CRS, but the agency is in need of reform to boost its usefulness to the modern Congress.
For example, current statute requires CRS, at the start of every Congress, to provide each committee with a “Current Legislative Issues” report including “a list of programs and activities being carried out under existing law scheduled to terminate during the current Congress” within the committee’s jurisdiction, as well as a “list of subjects and policy areas which the committee might profitably analyze in depth.”² CRS has failed to provide these reports for the last multiple Congresses, but the statutory authority demonstrates the type of proactive service this Legislative branch agency can provide to Congress should it reaffirm a more active role in policy implementation.
A change in Chevron will result in Congress needing in-depth analysis on a regular basis as well as expert assistance in identifying ambiguities, crafting outcomes-driven language, and defining Congressional intent. CRS has a strong foundation to become a vital asset to a post-Chevron Congress.
Recommendation 3: Unlock Executive branch data to inform Congress’ new implementation-focused authorities.
The Congressional workflow of deliberating upon and creating law has often concluded when a bill is signed by the President. A Member and their staff, the committee of jurisdiction, and Congressional leadership are deeply involved in the crafting and passage of a legislative item, but Congressional oversight powers have struggled to keep pace with the Executive branch’s sprawling regulatory authority focused on policy implementation and impact analysis. A change in Chevron has the potential to greatly alter Congress’s ability to punch in an equal weight class, returning Congress to the role of implementation partner to the Executive branch. This expanded role will require Congress to become much more data-driven and outcomes focused — with the need for closer oversight and understanding of implementation challenges to identify opportunities to refine policies as issues arise.
Solution 1
Congress may see the need to invest in customized technology solutions that inform Members with real-time data to assist with their evaluations of policy implementation and further inform evidence based policymaking. Such technology may include the building of dashboards that rely on updated data access agreements across the Executive and Legislative branches. Today, Congress often receives implementation data from agencies in the form of reports that can be severely outdated. In a post-Chevron future, Congress will need real-time data access to inform implementation of future policies. Pilots exploring how these dashboards could improve the legislative process have been built by the GAO STAA Innovation Lab. As with any adoption of new technology, Congress will need to invest in workforce upskilling to empower staff with the skills to collect, process, understand, and use data to track implementation in order to align legislative outcomes with Congressional intent.
Congressional access to data is an ongoing issue that legislators are actively working to address. In April 2024, the Committee on House Administration favorably reported out H.R. 7593, “Modernizing the Congressional Research Service’s Access to Data Act.” This bill strengthens the ability of Congress’ top research entity, CRS, to access information from the Executive branch, in turn leading Members to have better information on hand to make more informed policy decisions. Improved access to data such as this bill would allow will be essential to empower Congress with the information it needs in a post-Chevron environment.
Recommendation 4: Engage with the Executive branch agencies as partners.
As the implementers of law that Congress authors, Executive branch agencies should be engaged in a well-established dialogue with Members in both the House and Senate. Unfortunately, due to both formal and informal processes on both sides of Pennsylvania Avenue, relationships between agency personnel and Congressional Members and staff are extremely rare outside of those personally maintained by Congressional caseworkers in 441 House offices. In a post-Chevron environment, however, this dynamic may change as agencies may be required to engage with Congress on a regular basis to receive clarity on Congressional intent in order to address any ambiguities in implementing the law.
A stronger dialogue between the branches has the ability to improve both policymaking and implementation for all involved. Should Congress be re-empowered with authority over clarifying Congressional intent, Members and staff will need to receive real-time implementation data (program evaluation) from the agencies to inform policy decisions that are needed to refine and right-size programs to meet outcomes. On the other side of the conversation, agencies will need to pull back the curtain and educate Congress on the implementation process behind the policies it creates, which will lead to a more detailed understanding of the extensive and impactful role agencies play in our federal system. This back and forth holds the potential to redefine Congress’ relationship to Executive branch agencies and eliminate silos that currently isolate legislators from implementers.
Case Study: The Interbranch Exchange Project
hosted by POPVOX Foundation and Georgetown University’s Massive Data Institute
Throughout 2024, the above organizations hosted three convenings to study the effectiveness of gathering policymakers and implementers in a room to identify possible improvements to existing federal programs. The case study explored three different types of federal programs: a well-established federal program (SNAP), a new program that is becoming well-established on the state level (Paid Leave), and an ongoing federal program with vital need for improvement (Emergency Response). The goal of each convening was to break down the silos between the policy authors (specifically expert legislative staff), implementers, and data-informed scholars. Across the sessions, two clear themes emerged:
The event was unique in that the participants from the three backgrounds had never gathered in one room before, and
The discussion focused on identifying possible policy solutions through implementation-learned shortfallings was similarly unique and productive. The Interbranch Exchange Project demonstrated how siloed implementation information is between the branches and more specifically, between the specific experts who focus on a given federal program.
Recommendation 5: Explore creation of a new Legislative branch agency that is tasked with aiding Congress’ authority over implementation analysis, liaisoning between the Legislative and Executive branch to address ambiguities and ensure interpretation aligns with Congressional intent.
Ideas such as a Congressional Regulatory or Regulation Office have been explored by Congressional scholars and civil society over the last decade. Similar to Congressional needs that resulted in the creation of the Congressional Budget Office, a change in the impacts of Chevron presents Congress with an additional element for consideration in crafting legislation, specifically Congress’ legislative intent behind implementation. With this additional authority, Congress may consider the creation of a specialized Legislative branch agency that can act as the liaison between the Legislative and the Executive branch to address ambiguities and manage needed clarifications regarding Congressional intent.
Conclusion: An Alternate Reality
A Supreme Court change to Chevron would have ripple effects throughout America’s legislative system regardless of the scope of change the Court initiates. It is something that will happen to Congress, not with Congress. However, Congress has the foresight to be ready for what lies ahead.
If Congress fails to take action, the impacts of the Court’s decision will still take shape. A Congress that fails to invest in itself and rise to the occasion will leave a power vacuum for another entity to fill. If questions regarding ambiguities are no longer able to be handled by agencies and are not addressed by Congress, these decisions will likely be left to the courts to address. This has the potential to lead to an alternate reality where instead of the agencies playing a far-stretching shadow-policy making role, the courts will become much more powerful in the lawmaking and implementation process. Congress would essentially continue to defer, but to Courts rather than to agencies.
In contrast, a Congress that takes action to understand the new role it may have to play is one that can be empowered to redefine its agility and strength for the American people. Every Member can add to this impactful narrative by productively engaging in the conversation when the decisions are announced in June and reminding people that defining Congressional intent and addressing ambiguities is a role that should have always rested with the Legislative branch.
¹ A concern gaining traction is the possibility that a reversal of Chevron may be retroactive, and thus may make any agency decision in which agency deference was relied upon appeal-able or simply overturned. Although this outcome is possible, it is unlikely. However, should it take place, the impact on constituents and constituent services would be drastic due to the already deeply backlogged agency appeals process.
² 2 USC 116(d)
