Senate Republicans are quietly targeting a broad swath of agency rules after the Supreme Court eliminated a longstanding precedent on judicial review.
Senators plan to propose more than a dozen bills aimed at cementing the relationship between the three branches of government following the court’s decision to overturn the Chevron doctrine, under which courts deferred to reasonable federal agency interpretations of unclear laws, according to aides to Sen. Eric Schmitt (R-Mo.).
Possibilities include creating a separate regulatory office on Capitol Hill and expanding the statutory exceptions to the filibuster for agency rules, the aides to Schmitt, who’s leading the group of Republican senators, said.
GOP lawmakers cheered the Loper Bright Enterprises v. Raimondo decision, arguing it will result in fewer burdensome regulations and give Congress more say in how laws are carried out. Their initial response to the ruling has been to overwhelm agencies with inquiries on the ruling’s impact on their day-to-day work.
To prepare for long-term change, 19 GOP senators last month formed a working group to examine how Congress should limit agency power and roll back regulations underpinned by Chevron.
The senators themselves haven’t met as a group, but GOP staff from members’ offices and the Judiciary Committee are organizing subgroups and written to over 100 agencies, quizzing them on the decision’s impact in their ongoing rulemaking, civil enforcement actions, and adjudications.
“We certainly want to lead the effort on structural reform,” Schmitt said. “We want make sure that this is real victory for the Article One branch and for the people.”
Republicans say the summer effort could pay dividends for longtime antagonists of government regulation, especially when it comes to laws affecting the environment, if they win control of the White House and Congress in November.
House committees have started identifying ways the Supreme Court’s ruling could galvanize policy priorities in their jurisdiction, including efforts to curb socially conscious passive investing. The House Administration Committee last month also held a hearing where witnesses said Congress may need to bolster its workforce in order to include more policy details in its laws.
Agencies that have so far responded to Schmitt’s request have downplayed the ruling’s impact on their work, according to their responses obtained by Bloomberg Government.
Federal Communications Commission Chairman Jessica Rosenworcel expressed confidence her agency’s rules would withstand judicial review, and the acting general counsel at the Election Assistance Commission said the body had “limited rulemaking authority.”
“I do not expect Loper Bright to change agency decisionmaking,” wrote Robert Primus, chairman of the Surface Transportation Board. “When statutory interpretation is warranted, adjudicatory and rulemaking decisions will continue to be made based on the best reading of the statute.”
Schmitt’s group includes the three declared candidates to lead Republicans next year after Senate Minority Leader Mitch McConnell (R-Ky.) steps down.
The decision will “make Congress more responsible, more accountable, and put the responsibility for determining what that authority should be back with the people who are supposed to make that decision,” said Sen. John Cornyn (R-Texas), a former state supreme court justice running for leader. “It’s probably a target-rich environment with a lot of regulations that would be struck down under the Supreme Court’s decision.”
Big Target
Energy policy especially “will be a big target next year,” said Senate Minority Whip John Thune (R-S.D.), another top candidate for the leadership post. “It’s a pretty long list.”
Sen. Rick Scott (R-Fla.), who is also running for leader, is part of the group as well.
Sen. Bill Cassidy (R-La.), the ranking member on the Senate’s committee overseeing health and labor policy, sent letters to the Departments of Health and Human Services, Education, Labor; the Food and Drug Administration; the National Labor Relations Board; the Equal Employment Opportunity Commission; and the Employee Benefits Security Administration asking how they’ll comply with Loper Bright.
Frustrated by the administration’s overall lack of response to congressional queries, he also filed legislation (
“Congress has got to send a message that we’re watching and that we expect them” to adhere to the court’s decision, Cassidy said.
But the EEOC said in a statement that the agency has “always” followed Supreme Court precedent, and will continue to do so.
“The Commission is obligated to implement congressional directives, including when Congress directs the agency to promulgate regulations,” said an EEOC spokesperson. “As we continue to perform our duty to implement congressional directives, we will take all necessary steps to ensure that we act within our delegated authority.”
The NLRB declined to provide their response letter to Cassidy’s inquiry.
Other lawmakers want to see Congress create new bulwarks against perceived executive overreach, including by writing legislation more specifically.
Sen. Mike Rounds (R-S.D.) introduced a measure (
“Most bureaucrats don’t want their legislation to be stopped, so they’re going to try to work with the legislative body” proactively if Congress sets up such a panel, Rounds said.
Private Interest Influence
Progressive Democrats have warned that Chevron‘s fall spells greater private-interest influence on legislation.
Sen. Elizabeth Warren (D-Mass.) introduced a bill (
“We have to keep these issues front and center for the American voter,” Warren said.
Such measures stand little chance in today’s divided Congress and even less if Republicans were to gain control of both chambers.
Despite Republicans’ belief that Loper Bright will further bolster congressional power, most legal scholars argue that it is the courts that come out empowered.
Congress’ legislative power is unchanged—the decision simply moved deference on regulations to the courts instead of the agencies, said Anne Lofaso, a professor at West Virginia University College of Law.
“Congress’ power is to legislate, and the decision doesn’t change anything about Congress’ power to legislate. It changes who gets to interpret what Congress said,” Lofaso said.
While Republicans may be satisfied that the current conservative majority at the Supreme Court would have the final say in such regulations, that may not be the case in the future when deference is given to a liberal court interpreting actions of a conservative executive branch, Lofaso added.
She noted that the ideological balance of lower courts, where many of these cases will be decided, is more evenly divided between Democrats and Republicans than the high court, which could result in more split decisions between different districts and circuits in the post-Chevron world, Lofaso said.
“Be careful what you wish for because you never know,” she said.
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