The dog catches the bumper: Is Congress ready for a post-Chevron world?

Also: The GOP commits to keeping the filibuster; and how a House rule pushed by one party zinged one of its own members

Source: DALL-E 3’s attempt to depict a Congress drowning in red tape. Keep trying, DALL-E 3.

Very soon the U.S. Supreme Court will announce its decision in Loper Bright Enterprises v. Raimondo. The case involves fishermen who object to being forced to pay for the federal inspectors who visit their boats. The government cites a 1970s-era law for this policy, but the statute does not explicitly grant such authority nor does it say who should pay for the National Marine Fisheries Service’s inspection costs.

But the case also is about Chevron deference, a forty-year old juridical doctrine. It holds that when an agency is confronted with statutory ambiguity its determination of the statute’s meaning will be deferred to so long as it is reasonable.

On the one hand, Chevron deference has been a good thing. It increased the predictability of judicial rulings by limiting the grounds judges use to review cases. The country is not well served by judges behaving like legislators and deciding complex regulatory matters ad hoc. On the other hand, the Chevron decision has emboldened presidents and regulatory agencies by setting an easy threshold—reasonableness.

For a long time, conservatives have criticized the administrative state and the Chevron case’s role in abetting it. Close observers of the High Court almost uniformly say that Chevron deference will be overturned.

So what happens when the dog catches the bumper?

Answer: It depends mostly on whether Congress uses this moment as an opportunity to take back legislative authority. Over the past century, the power to decide what a law permits and forbids has flowed from the legislative branches to the executive and judicial branches—which distorts our constitutional system.

Power in our tripartite system abhors a vacuum. If Congress fails to act post-Loper, then power will shift from the executive branch to the courts, which will have broader discretion to decide regulatory cases.

Congress presently has hardly any capacity to oversee regulatory matters, which are exceedingly complex and which flow like water from the 180 or so federal agencies. Right now, Congress engages regulatory matters only occasionally and ad hoc. Overseeing regulation simply is not a part of its regular workflow.

Fixing that will require bold action. My colleague Philip Wallach and I advised legislators to create a Congressional Regulation Office (CRO) to employ nonpartisan regulatory policy wonks who could advise legislators. This CRO could gut-check agencies’ benefit-cost analyses, file public comments on behalf of Congress on pending rules, and advise Congress on how to cull the 186,000 pages of regulations that have aggregated over the decades. Standing up this agency would cost $50 to $100 million a year—a pittance that would be paid for if Congress improved or abolished just a handful of the rules that cost hundreds of billions each year.

Knowledge is power, and if we do not want unaccountable bureaucrats and judges to wield legislative authority then we need to give Congress the expertise it needs.

Senate GOP pledges to keep the filibuster no matter who is president

“Senate GOP promises to preserve the filibuster — even under Trump,” Punchbowl News, May 28, 2024.

“The day that Republicans vote to nuke the filibuster is the day I resign from the U.S. Senate,” Sen. Thom Tillis (R-N.C.) told us. “That is how strongly I feel about it… We gotta have the courage to stand against [this].”

Senate Minority Whip John Thune, who’s running to replace Mitch McConnell as GOP leader, pledged that Republicans won’t blow up the filibuster. The issue has come up during recent closed-door GOP Conference meetings in the context of the upcoming leadership race.

“Our members are committed to preserving it,” Thune said. “As much as we want to work with Trump… we’re going to have to do it the old-fashioned way and cobble together the types of majorities that enable us to get to the 60-vote threshold.”

Kosar: Last week, leading Democrats said they would ditch the filibuster.

Thin margins embolden House dissidents

Matt Glassman, “The '24 Election and Institutional Change,” Matt’s Five Points Substack, May 24, 2024.

“Much of what we have seen in the 118th would not be happening if the GOP had won the larger House majority many people were expecting in the 2022 election. Had the GOP won 235 or 240 seats in the House—as some forecasts were predicting—the Freedom Caucus would not have held the balance of power, McCarthy would not have had to bargain with them, and the House probably would have functioned much more normally.”

Kosar: Yep. Thin margins embolden legislators by giving them leverage. Leadership needs them to produce a majority, which means being a dissident can win ransom.

Oh, the irony

As many of you know, the House of Representatives took down words uttered by Rep. Jim McGovern (D-MA). What did he say? Among other things, he said this of Donald J. Trump: “We have a presumptive nominee for President facing 88 felony counts, and we're being prevented from even acknowledging it.”

What’s the problem? Answer: It is contrary to a House Rule. “Personal abuse, innuendo, or ridicule of the President is not permitted.” Of course, Mr. Trump is not the President, but the Chair ruled that as presumptive nominee he deserved to be treated with equivalent decorum.

Which, as Jamie Dupree reports, is not a novel reading of the rule. In fact, Dupree explains, “The limits on what can be said about candidates for President were established during the 1992 campaign by Democrats - in part to protect Bill Clinton from attacks on the House floor.”

Source: C-SPAN. Click here to watch the video.