OPINION:
The Supreme Court has spoken, but Congress must act.
This is the most important takeaway from the court’s ruling in Loper Bright Enterprises v. Raimondo. The justices ended the foolish practice of judicial deference to a federal agency’s “reasonable” interpretation of ambiguous laws known as “Chevron deference.”
The ruling will help block the vast federal bureaucracy from abusing its power, but agencies will continue to threaten Americans’ freedom and prosperity by violating a bigger constitutional principle. Agencies can still issue sweeping and costly regulations without congressional signoff. Congress must reclaim its legislative power and restore America’s system of checks and balances.
The first words of the Constitution’s first article are clear: “All legislative Powers herein granted shall be vested in a Congress of the United States.” The founders wanted neither the executive nor judicial branches to do the work of writing laws, focusing instead on their respective (and equally nontransferable) duties of enforcing and interpreting the law. Yet the founders didn’t foresee the rise of the federal bureaucracy to which Congress has granted vast legislative powers over the past 140 years — the Constitution notwithstanding.
Today, hundreds of federal agencies make tens of thousands of laws that govern every American. They call them regulations, and they’re issued without being passed by Congress or signed by the president. What’s more, while Congress is supposed to initiate federal spending, the bureaucracy spends with abandon and without congressional approval. In the last three years, federal agencies have unilaterally spent more than $1 trillion, driving inflation and undermining the economy — all without Congress’ approval.
The Supreme Court’s ruling against Chevron deference, while important, doesn’t restore Congress’ rightful role as the author of America’s laws, including the regulations that have the force of law. Fortunately, Congress can effectively restore constitutional government — simultaneously protecting freedom and fiscal sanity — by passing a law that requires congressional approval of costly regulations before they go into effect.
Congress took a baby step in that direction by passing the Congressional Review Act in 1996. That law allows the House and the Senate to pass a joint resolution that repeals a regulation within 60 days of its realization. But the resolution must then be signed by the president, and if the president vetoes it, the original regulation remains in effect. That’s constitutionally backward. If a regulation can’t pass Congress, then it should never have the force of law, regardless of what the president thinks.
The better reform is the Regulations from the Executive in Need of Scrutiny Act. The REINS Act would force Congress to vote on every regulation with an annual economic cost of more than $100 million — which is to say, the regulations that have the biggest impact on Americans. If both chambers of Congress don’t vote to approve it, the regulation would die, just as a bill that can’t pass the House and Senate dies. If they both vote to move it forward, the regulation would be implemented.
The REINS Act has already passed the House of Representatives multiple times since its introduction in 2009, with the most recent passage coming in June 2023. The ideal version would cover not only major regulations but also agency “guidance” — the informal mandates that don’t go through the normal rulemaking process. Such guidance will probably become even more common after the Supreme Court’s Loper ruling. If agencies can’t issue clearly unreasonable regulations, they may resort to issuing clearly unreasonable demands that exist in a legal no-man’s-land.
The REINS Act isn’t likely to pass the current Senate, and President Biden wouldn’t sign it. But Republicans — who are broadly cheering the Loper decision — should make its passage a priority in the years ahead, especially when they have majorities in both the House and Senate and the presidency. Were it in place today, Congress would surely have killed disastrous ideas like Mr. Biden’s welfare expansions, de facto electric vehicle mandates and student debt cancellation, saving Americans from higher deficits and inflation.
But ultimately, the REINS Act is about restoring the checks and balances that are an essential bulwark of Americans’ freedom. The Supreme Court just began reining in the federal bureaucracy. Now Congress needs to restore true constitutional government.
• Tarren Bragdon is president of the Foundation for Government Accountability, where Stewart Whitson is senior director of federal affairs.
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