As expected, the Supreme Court handed conservatives a major victory on Friday, overturning a 40-year-old precedent known as “Chevron deference,” which had given federal agencies broad discretion in interpreting and exercising their powers under vague federal laws.
This all sounds pretty technical, but the impact of the Court's 6-3 decision could affect far-reaching aspects of American life, from the cleanliness of our air and water to the safety of consumer products to how financial markets work.
The ruling places new responsibilities on Parliament that it is completely unprepared to deal with.
“This decision will have far-reaching effects,” said former Representative Henry A. Waxman (D-Calif.), a powerful lawmaker who helped pass major health, consumer protection, environmental and communications legislation. “Congress will have to write detailed regulations as part of the law without the ability for agencies to fill in the details.”
“They don't have the expertise to do the job,” Waxman told me. “They'll be bombarded by lobbyists and it's going to be very hard to get things done. It's not going to lead to compromise, and it's more likely that important and necessary regulations will be halted.”
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But also, with agency powers so limited, Congress' failure to act would leave complex technical problems to be solved by the courts, which they are even less equipped to do.
We got to this point in part because Congress has been lax in its responsibility to legislate clearly and effectively. Over the years, Congress has ceded more and more constitutional authority to the executive branch. Rather than finding compromise on contentious issues, many of which pit powerful interests against one another, lawmakers have passed laws that are purposely vague. They've been content to “let the agencies work it out,” says Roger Nover, a congressional veteran who runs the Center for Regulatory Studies at George Washington University.
And, of course, politicians are infuriated by the “regulatory overreach” of an “administrative state” run by “unelected bureaucrats.”
Even if Congress had the capacity to fill the vacuum that would result from the Chevron decision, its capacity to do so would fall far short of what is needed.
As Kevin Kosar, a senior fellow at the American Enterprise Institute, points out, the growth of the executive branch has been explosive. There are now about 180 executive departments and independent agencies, employing nearly 2 million people. Each year, between 2,000 and 3,000 new regulations are proposed and up to 5,800 are finalized.
Meanwhile, the institutional storehouse of knowledge that Congress once had has been destroyed. The size of House committee staffs — where technical expertise is housed and where legislative, oversight, and investigative work is done — has shrunk by nearly 40 percent since the late 1970s, according to the Congressional Research Service. Senate committee staffs have grown slightly overall, but there have been ups and downs, and the increase has not been as dramatic as the number of people working in leadership offices and on senators' personal staffs.
Indeed, some in Congress are skeptical and even contemptuous of its own internal expertise. In 1995, as the Internet era was dawning, the newly-taken Republicans in the House of Representatives abolished the Congressional Office of Technology Assessment, which for decades had provided lawmakers with bipartisan analysis of science and technology issues. Republicans called this a cost-saving measure, but many believed the agency's analysis was left-leaning.
Whatever the reason, it was a decision that failed to anticipate the complex technological issues facing society today: artificial intelligence, internet privacy, social media manipulation, etc. During the hearing, lawmakers demonstrated a comical ignorance of how the digital age works.
For years, there have been bipartisan efforts to revive and modernize the Office of Technology Assessment, but in the wake of a recent Supreme Court decision, Congress needs to think bigger.
About a decade ago, Kosar and Philip Wallach of the Brookings Institution (now Kosar's colleague at the American Enterprise Institute) proposed the creation of an Office of Congressional Regulation, an organization similar to other agencies that report to the Legislature, such as the Congressional Budget Office, the General Accounting Office, and the Congressional Research Service, that could provide credible cost-benefit analyses and help guide lawmakers in carrying out their oversight responsibilities.
“At this point, Congress has little hope of even determining which criticisms of the administrative state's performance are credible,” Kosar and Wallach write. “That leaves two tendencies: blind trust and blind indignation, neither of which are likely to sway an agency that views Congress primarily as a minor, chronic nuisance.”
So there may be a silver lining to the Supreme Court's ill-advised decision: it represents an opportunity to restore the powers the Founding Fathers sought to give Congress. Otherwise, it will continue to contribute to Congress's own ever-decreasing importance.
