The US Supreme Court's reversal of the long-standing Chevron doctrine will require more staffing and expertise on Capitol Hill, a panel of experts told the Committee on House Administration.
About one month after the Supreme Court's Loper Bright Enterprises v. Raimondo ruling, which struck down a 40-year-old legal precedent also known as Chevron deference, lawmakers are looking to understand better how Congress should engage in the rulemaking process and how congressional staffing levels must change. Under Chevron, US courts deferred to an agency's interpretation of a statute if the statute contained ambiguous language. After the Supreme Court ruling, lawmakers must work to ensure that statutory language contains no such ambiguity.
The first question from committee Chairman Rep. Bryan Steil (R-Wis.) was whether Congress is currently set up to review the rules coming out of the 439 federal agencies, which range from cabinet-level and independent agencies to law enforcement and military groups.
All five experts, who ranged across the political spectrum, answered "no."
"I see you all working frantically, I see your staffs working especially frantically, so many things to do ... how you can fruitfully engage regulatory actions? At this point, I don't think you can," said Kevin Kosar, resident senior fellow at the center-right think tank American Enterprise Institute. "The capacity's just not there."
New congressional office
Kosar called for the creation of a congressional regulation office to better facilitate the collaboration of lawmakers and policy experts to craft more effective and well-researched legislation.
"I come to you a conservative who believes in constitutional government, reviving federalism, smaller government ... and I am saying please create a congressional regulation office," Kosar said.
The office would include people with knowledge of the law, policy and statistical analysis skills, who would have the capacity to follow the regulatory process "from snout to tail," he said.
"This is a core of folks that could help maintain a dialogue for the Congress with the executive branch as it goes through the process, as it works through these nettlesome, complicated issues and deals with these unforeseen things that were probably not even on your mind as you passed the bill," Kosar added.
The idea of a new congressional office tasked with reviewing regulation was also supported by Wayne Crews of the libertarian think tank Competitive Enterprise Institute. Specifically, Crews called for the creation of a Congressional Office of Regulatory Analysis.
"Done correctly, CORA could challenge mistaken presumptions of agency expertise and avoid the faulty presumption that market failure outweighs political failure," Crews said.
Additional staffing
New committee staff across Congress will also likely be needed, the panelists said.
"Committees already have the obligation to conduct oversight of all the functions within their jurisdiction," said Josh Chafetz, a professor of law and politics at Georgetown University. "Beefing up committee staff, and in particular committee staff with substantive expertise in the areas that they're overseeing, would allow them to evaluate the regulations coming out of the executive branch."
In the 40 years since Chevron was codified, the number of congressional staff overall has dropped by a few percentage points, according to Satya Thallam, senior vice president of government affairs with Americans for Responsible Innovation, a tech-focused think tank. The decrease is more stark when you look at committee staff, which is down 40% compared to 30 years ago.
"Does anyone on the committee believe Congress' work has become less complicated, confusing and therefore easier since then?" he asked.
In addition to supplementing congressional staff through fellowships, a temporary infusion of outside expertise, Thallam also told S&P Global Market Intelligence that he would recommend agencies bring in more of their experts to work on committee staff.
Beyond staffing, Thallam encouraged members to participate in the public comment periods made available to the general public across various agencies.
The public comment periods, searchable via regulations.gov, are often utilized by concerned individuals, as well as trade groups and advocacy organizations.
"I think this is an incredibly undervalued tool for members," Thallam said. "I don't understand why members don't use it more frequently. In my time on the Hill, I encouraged members to participate in the process."
Emerging technologies
According to Chafetz, one challenge for regulatory agencies and lawmakers will be ensuring enough flexibility in future policymaking to allow for innovation and growth. This is especially true for emerging technologies such as artificial intelligence.
Chafetz cited the late Supreme Court Justice Antonin Scalia's earlier praise of the Chevron deference, adding that Scalia viewed the doctrine as responsive to changes over time.
"AI is a good example," Chafetz said. "Agencies are just coming to terms with AI. Now, who knows what the state of AI will be in five or 10 years? It seems crazy to lock them into their initial interpretations at this point."
