A Congressional Call to Action One Year Post-Loper
A year ago, the Supreme Court handed down its decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine that gave unelected federal bureaucrats free rein to conjure up new power to enact rules without congressional authorization or real judicial review.
At the time, some on the left argued the decision would make the government less accountable to the people by putting policymaking power into the hands of judges:
- “In striking down Chevron, the Supreme Court continued the trend toward transforming unaccountable judges into politicians with robes—unelected legislators and policymakers.” – Senator Richard Blumenthal (D-Conn.).
- “[T]he Supreme Court today says individual judges around the country should decide the best reading of a statute. That is a recipe for chaos.” – Kym Meyer, litigation director for the Southern Environmental Law Center.
MSNBC talking heads, progressive legal scholars, and even the dissenting justices themselves offered a parade of horribles about the end of federal agencies power to regulate as they saw fit. But the parade never came.
In truth, the decision has done the opposite. Ending Chevron deference has restored at least a portion of the constitutional separation of powers that permits Congress to make the laws, the President to implement the laws, and the courts to provide impartial interpretation of the laws. Loper ensures that unelected federal bureaucrats cannot usurp the power of Congress by effectively writing and expanding laws beyond their intended scope.
As Justice Neil Gorsuch put it, the decision “returns judges to interpretative rules that have guided federal courts since the Nation’s founding…all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.”
Policymakers like Senator Rick Scott (R-Fla.) praised the decision at the time for similar reasons: “The recent Supreme Court decision reaffirmed the separation of powers and reinforced the constitutional roles played in our federal government: Congress writes the law, the Executive enforces the law, and the Judiciary interprets the law.”
Meanwhile, others on the right championed the ruling as a major step towards curbing bureaucratic overreach and burdensome federal regulations that hurt American workers and stifle the economy:
- “The Supreme Court’s overruling of the Chevron doctrine is a major win for economic freedom. It limits the power of the administrative state and puts the people’s representatives in the driver’s seat when it comes to how the laws of our nation are implemented.” – Senator Ted Budd (R-N.C.).
- “For the past 40 years, unelected bureaucrats have bypassed the legislative branch to impose their will on Americans. For far too long, federal agencies have unilaterally published and enforced burdensome regulations that have crushed American businesses. Not anymore.” – Senator Tommy Tuberville (R-Ala.).
Still others called on the Loper decision to spark wider change in Congress:
- “The Supreme Court’s elimination of ‘Chevron Deference’ represents a generational step in restoring Congress’ power. To prevent future bureaucratic overreach, Congress must now step up.” – Senator Pete Ricketts (R-Neb.)
- “Today’s ruling needs to be a wake-up call to Congress. For far too long, Congress has shirked their responsibilities and conveniently delegated the tough job of legislating to unaccountable DC bureaucrats. Loper Bright is certainly a step in the right direction, but the real question is whether Congress will now step up and fulfill their Constitutional duty.” – Steve Johnson, fellow at the Center for Practical Federalism.
Here’s hoping that lawmakers on both sides of the aisle take advantage of the generational opportunity that Loper Bright has created. While President Trump’s administration has made progress in rooting out and eliminating agency activities that impose onerous burdens on average Americans, lasting success will require Congress to reassert its constitutional authority to rein in agency overreach for good.
Congress can do so by enacting legislation like the Midnight Rules Relief Act, which would allow Congress to reject multiple regulations at once under the CRA process; the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require elected representatives in Congress to approve any significant new regulations; the Guidance Out of Darkness (GOOD) Act, which would increase transparency by requiring agencies to publish their secret “guidance” interpreting their own rules; and the Reorganizing Government Act, which would reassert Congress’s role in the reorganization of federal agencies.
A year after Loper Bright Enterprises v. Raimondo, the dire warnings of chaos have not materialized as the courts ceased deferring to the legal interpretations of presidents and their administrations of both parties.Instead, the ruling has marked a pivotal course correction, beginning to restore constitutional boundaries and placing lawmaking responsibility back in the hands of Congress.
But there remains much work to do. To ensure lasting reform and truly rein in bureaucratic overreach, Congress must now act to reassert its authority and deliver an accountable government that is truly of, by, and for the people that elect them.
The Court has done its part. Now it is Congress’s turn to finish the job.
Casey Mattox is Americans for Prosperity’s Vice President, Legal Strategy
