The largest group of House conservatives is preparing policies to respond to a potential Supreme Court decision overturning the “Chevron deference” doctrine, which has given executive agencies wide latitude to interpret how to implement laws Congress has passed.
The Republican Study Committee, the largest bloc of House conservatives and a group that wields significant influence over broader GOP policy, is issuing a memo Tuesday compiling ideas on how members can respond if the Supreme Court decides Chevron deference should not longer stand.
“If Chevron is rolled back or overturned, this will be a landmark decision which could open the door to Congress reclaiming its Article One Authority, rolling back Biden’s woke and weaponized administrative agenda, and providing for further pro-growth regulatory policy,” reads the memo that was shared exclusively with The Washington Times.
The Supreme Court is expected to issue a ruling as soon as this week that could determine whether to overturn or scale back the legal test for reviewing whether federal regulations comply with congressional intent. In cases where Congress did not clearly express its intent in writing a law or the statutory language is ambiguous, the Chevron deference doctrine allows regulations to stand if executive agencies can prove in court that their interpretation of the law is reasonable.
The doctrine was established in a 1984 Supreme Court ruling in Chevron U.S.A. v. Natural Resources Defense Council related to an Environmental Protection Agency regulation interpreting part of the Clean Air Act that was not clearly defined in the law.
That ruling and other judicial reviews of executive regulations since have provided deference to agencies to interpret Congress’ intent when the law is unclear.
The plaintiffs in the pair of cases the Supreme Court is now considering — a group of fishers challenging a Department of Commerce regulation that would charge boats lofty fees to cover the costs of onboard inspections required by law — want the court to overrule Chevron and give judges more leeway to reel in executive regulations that take advantage of gaps in the law.
The Republican Study Committee sees the coming Supreme Court decision as an opportunity for Congress to step in and enact new laws clarifying the executive branch’s rule-making authority, which they’ve long decried as overreaching.
“For too long, unelected bureaucrats have been given unchecked authority to go beyond the law while bullying and over-regulating Americans,” said RSC Chair Kevin Hern, Oklahoma Republican, in a statement to The Times. “We have an opportunity to restore the constitutional separation of powers and rein in the administrative state.”
The RSC memo lists several bills its members have already introduced, as well as other ideas that could be used to “undo the negative impacts of Chevron deference” after the Supreme Court ruling.
One of the bills on the list, the Separation of Powers Act, passed the House last year on a 220-211 mostly party-line vote. The bill from Rep. Scott Fitzgerald, Wisconsin Republican, would require federal courts to conduct de novo reviews of any agency actions, meaning judges would not be allowed to rely on Chevron or any other previous court decisions in deciding of whether the regulation is valid.
A related bill the group is touting from Rep. Jack Bergman, Michigan Republican, would require federal agencies to postpone implementation of any regulations with an annual negative economic impact of more than $1 billion that are being challenged in court until those judicial reviews are complete.
The RSC memo, written by the group’s staff for its members, suggests House committees use their oversight authority to review any regulatory actions justified by Chevron deference and highlight any that should be considered again for judicial review.
“Biden’s regulatory agenda has impacted everything from the economy to America’s energy and agricultural production to Title IX,” the memo notes of the wide array of oversight opportunities.
“Similarly, House conservatives should seek opportunities to advocate for Congress to repeal or defund such regulations,” RSC staff suggest.
Related to the powers of the purse, the RSC has long pushed to enact the REINS Act, a bill that would require congressional approval for any regulations that have an annual economic impact of $100 million or more. The House also passed that bill, introduced by Florida GOP Rep. Kat Cammack, last year.
The RSC memo also lists several bills members have offered to improve transparency around the rule-making process. One from Virginia GOP Rep. Ben Cline would require rules be signed and issued by Senate-confirmed political appointees, “rather than unknown bureaucrats.”
Other transparency measures include bills to require disclosures on what rules are coming down the pike and to mandate agencies detail the costs of regulations being proposed.
“Federal agencies are not required to disclose a complete record of data upon which a rulemaking is based off,” RSC staff suggests. “Congress could require agencies to provide all data supporting their proposed rulemaking as part of the Administrative Procedure Act (APA) process.”
The memo recommends that Congress move to close loopholes that exempt many independent agencies from having to comply with various existing laws governing the rule-making process.
And to help cut through the red tape, the RSC is pushing a bill from former member Sen. Ted Budd, North Carolina Republican, to require two existing regulations to be eliminated for every new one issued.
• Lindsey McPherson can be reached at lmcpherson@washingtontimes.com.
Please read our comment policy before commenting.