Post Chevron, Congress Has to Get Serious About Capacity

Written By Marci Harris

Congress has always had the power to write laws that make its intentions clear. That includes the intention to give discretion to federal agencies. The post-Chevron caveat is that discretion to agencies will now need to be explicit.

One thing every law student has to be familiar with are the “rules of statutory construction” — those hierarchical rules that courts use to interpret legislative text and divine Congressional intent. Back in 2007, I was deep in these rules while studying for an LL.M. in Law and Government (focused on Administrative Law) at American University, prepping for the bar exam, and interning for the House Ways and Means Committee. My days were spent helping with committee hearings and markups, reading long email threads back and forth with Legislative Counsel to refine bill text, and sitting in on Member meetings as each brought their ideas and priorities to the table. The somewhat chaotic process of hammering out legislation that I saw in the committee library was in stark contrast to the methodical, reverent notion of “Congressional intent” that my professors taught, like: “Every word within a statute is there for a purpose and should be given its due significance,” “Expressio unius est exclusio alterius” (the express mention of one thing excludes all others), “Noscitur a sociis” (words of a list should be given related meaning), etc.

Nearly every lawyer who has gone to work on the Hill has had a similar realization: that many in Congress have no grasp of the detailed scrutiny courts give to “Congressional intent” and few staffers (aside from the pros in the office of Legislative Counsel) labor over language details with courts in mind. And yes, for the past forty years, a significant factor in Congress’ approach has been the ability to punt many policy details to Executive branch agencies and trust that courts would defer to agencies’ interpretation of the law following the Chevron doctrine.

That’s over now. And while the Court today made clear that previous cases that depend on Chevron are still good law, a flood of new cases challenging existing rules will soon start crashing on the shores of District Courts around the country.

A Pivotal Shift in Administrative Law

In Loper Bright v. Raimondo and Relentless v. Commerce, Chief Justice Roberts, writes for the majority that Chevron deference violated the Administrative Procedure Act — a New Deal-era law that governs administrative processes such as notice and comment rulemaking and agency ajudication. As Roberts notes, the APA does not contain specific language directing courts to defer to agency interpretations of statutes. On the contrary the Court held that “[t]he Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency inter- pretation of the law simply because a statute is ambiguous”.

Marquette University professor Pat Sobkowski notes that the Court did not reject Chevron on constitutional grounds, as an unlawful delegation of the lawmaking authority. Instead, the decision simply says that the statute (APA) requires courts to interpret the law and they can’t abrogate that responsibility through deference to agencies. The holding implies that if Congress wanted to insert language instructing courts to defer to agency interpretation in the APA, it could do so as long as the language was not so broad that it qualified as an unlawful delegation. Notably, the Thomas and Gorsuch concurrences do assert the constitutional argument. “This would be important in the event that Congress tried to codify Chevron by amending the APA or modifying specific agency organic statutes,” writes Michigan Law Professor, Christopher J. Walker.

The Importance of Statutory Interpretation

So what does that have to do with statutory interpretation and Congressional staff? A lot, it turns out. The Loper and Relentless decisions emphasize that when courts now interpret statutes to assess the appropriateness of agency rulemakings, instead of deferring to agency interpretation, they should use the standard rules of statutory interpretation that they use for interpreting every other kind of law. The decisions clarify that this activity is not “policymaking” but rather legal interpretation or “judicial review” — the power the judicial branch established in Marbury vs. Madison back in 1803. That means the language Congress uses in statutory text is going to be more important than ever to ensure that agencies follow intent and that their actions are upheld when challenged in court.

Unfortunately, for the past forty years, this skill has not been cultivated in Congressional staff and Members. And, as I experienced back in my interning days, few staffers have even been taught these rules of statutory interpretation that courts will use when statutes are eventually challenged. That has to change. As Georgetown Law professor Victoria Nourse tweeted: “Upshot for lawyers, firms, law profs: it’s not enough to take admin law anymore. Statutory interpretation is a must, and those classes must teach textualism.”

Congressional staff and Members now need to be introduced to these principles as a part of their orientation and training for policy roles, with ongoing updates and professional development as a new policy status quo develops.

Modernization Wins and Congressional Readiness

Fortunately, the House has laid a strong foundation to begin providing this kind of professional training. Since 2019, a bipartisan modernization initiative in the House has produced and implemented over 100 reforms (as tracked by our friends at Bipartisan Policy Center). These changes have created a virtuous cycle of collaboration among members, staff, and outside experts, leading to improvements in the institution's functioning. This includes the creation of a Congressional staff “Coach” program by the Chief Administrative Officer and efforts to improve New Member Orientation, including recommendations for “just in time” trainings and ongoing professional development. In addition to improving basic skills for all policy staff, Congress’s ability to adequately respond to evolving landscape post-Chevron will require significant investment in committee staff and additional resources, including:

  1. Providing comprehensive training for staff on how courts interpret laws and the fundamentals of statutory construction.

  2. Committee designating specific staff members to explore pending issues within their jurisdiction and hold hearings and roundtables to delve deeply into these topics.

  3. Bolstering technological resources to keep pace with ongoing developments.

  4. Studying the feasibility of a "Congressional Regulation Office" as proposed by AEI’s Kevin Kosar and Brooking’s Philip Wallach to conduct benefit-cost analyses of agency rules, perform retrospective reviews, and identify regulatory redundancies.

  5. Investing in staff capacity and expertise, particularly within committees with substantial regulatory jurisdiction.

Encouragement for the Future

The end of the Chevron doctrine presents both challenges and opportunities. Congress must adapt by enhancing its capacity and expertise to fulfill its legislative and oversight responsibilities effectively. This moment calls for significant institutional improvements, ensuring that Congress can meet the demands of a post-Chevron world.

The path ahead requires a collective effort to modernize and strengthen the legislative branch. By investing in its own capacity, Congress can better serve the American people and uphold the principles of democracy. Just as my early experiences on the Hill revealed the gap between theory and practice in legislative drafting for many staffers, the current moment calls for a concerted effort to bridge that gap. There is opportunity for significant institutional improvement with the right investments and reforms. Congress can rise to the occasion and effectively navigate the complexities of the new legal landscape. 

Resources:

Marci Harris
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