Recent Supreme Court rulings diminishing the power of federal agencies are expected to change how Washington operates and the role of stakeholders and subject matter experts in the legislative process.
In June, the Supreme Court overturned the Chevron doctrine in the Loper Bright Enterprises v. Raimondo ruling. Chevron, which had been legal precedent for 40 years, directed the courts to give federal agencies deference when writing regulations implementing vague statutes, assuming their interpretation of the law was reasonable.
In other words, Chevron allowed agencies to fill in details when implementing legislation that left room for interpretation without the risk of a quick legal rebuke. With that deference in mind, lawmakers did not need to address every technicality or detail the implementation process when writing laws. They could instead rely on regulators with deep expertise to fill in the blanks and fine tune the law iteratively in the rulemaking process.
Now, much of that work will now need to occur on Capitol Hill before legislation reaches the president’s desk.
So, how might Washington change with Chevron gone, and what should you be considering?
Weakened Administrative State
Without Chevron, more legal challenges to rules where regulators’ statutory authority is unclear are expected. We have already seen federal judges cite the Loper Bright Enterprises decision when blocking Biden Administration rules from multiple agencies (HHS | DOL | Dept. of Ed), highlighting how guidance that strays from the text is also now more likely to be blocked by the courts.
Combined with two other recent rulings that greatly extended the statute of limitations for challenging most rules and limited the use of inter-agency administrative courts, federal agencies have seen their power greatly diminished by the Supreme Court over the past month. That power has instead shifted to the courts and the halls of Congress, assuming lawmakers are prepared to deal with their increased responsibilities in the legislative process.
Congress Will Need to Change
Complex or technical issues that were previously addressed on the back end by agencies after a law is passed will now need to be dealt with on the front end before a law is voted on if lawmakers want to shield the regulations implementing those laws from legal rebukes that may not have had legs before the Loper Bright Enterprises ruling. Laws will need to be more detailed and comprehensive, with a level of specificity that precludes legal ambiguities. Some are skeptical Congress will be able to do this, including Justice Kagan in her dissent.
Lawmakers will also need to think about future-proofing their laws, considering the Corner Post Inc. v. Board of Governors of the Federal Reserve System decision, according to some observers and Justice Brown Jackson in her dissent, effectively did away with the statute of limitations for challenging a rule under the Administrative Procedures Act by starting the statute of limitations clock when a party experiences injury, not when the rule is finalized.
These new dynamics could motivate lawmakers to push additional legislation through regular order and the committee process to ensure adequate scrutiny is applied to each bill, reinforcing the importance of having strong relationships with relevant committees as lawmakers become more reliant on their expertise.
Keep in mind, this increased workload is not expected to be accompanied by a corresponding funding bump that would enable offices to add more staff with the subject matter expertise prevalent at government agencies. Congress will need to do more with the same resources they currently have.
Safe to say they will need some help as they adjust to this new normal, especially on major legislative efforts like tax reform in 2025. And that is where expert advocates come in.
The Role of Sector Expertise
Now, more than ever, lawmakers and their staff will be looking for outside help in the legislative process. They will need to consult with more stakeholders and subject matter experts, especially on technical matters, to write comprehensive laws and guide the implementation process for regulators. This presents a great opportunity for any organization that is eager to leave an imprint on public policy.
On the other hand, it may also have stakeholders lined up out the door to offer their two cents. So, finding DC experts to navigate the process will help eager stakeholders wade through the noise and have their voice heard.
With that in mind, it’s important to consider the threat this new system could present for not engaging in the legislative process. Previously, if a problematic provision was passed in a law, stakeholders could work with regulators to try and address unintended consequences or limit the negative impact in the rulemaking process. Now, regulators will likely be very hesitant to stray from the text when implementing the bill, meaning a concerning provision in the bill text will likely be implemented as written in the regulations. This underscores the importance of early engagement on Capitol Hill.
If you are interested in learning more about the impact of Chevron and the new opportunities and threats before advocates, please don’t hesitate to reach out to our team.