For conservatives and many political centrists, there was a clear villain to blame for congressional dysfunction: Chevron deference. Repealing this legal doctrine — which generally called on federal courts to defer to agency interpretations of ambiguous statutory provisions they are charged with implementing — would inaugurate a new Golden Age of Article I primacy and productivity, they claimed.
The conservative supermajority in the Supreme Court did just that over a year ago in the case Loper Bright v. Raimondo. Notably, during oral arguments in the case, those conservative justices and sympathetic litigants trottedout the familiar claims about how Chevron deference had short-circuited our constitutional checks and balances, thereby fundamentally disrupting the
the Madisonian equipoise of our tripartite governmental framework. According to this argument, the doctrine encouraged members of Congress to evade their duty of policymaking primacy. And, as administrative agencies assumed greater responsibility over policymaking-through-rulemaking, this supposedly led to huge pendulum swings in the law that both undermined basic rule-of-law principles and hindered economic growth.
We now have more than a year’s worth of experience to draw on since the Loper decision came down. We’re finding pretty clearly that the end of Chevron has failed to arrest any of these constitutional pathologies. If anything, they’ve accelerated. Let’s review.
Stagnant legislative output. The current Congress has passed only 31 pieces of legislation so far, and that’s despite the fact Republicans control both chambers and the White House. Significantly, only 13 of those proceeded through regular order. The rest involved special forms of legislation that enjoy fast-track procedures past such major congressional chokepoints as committee consideration and the Senate filibuster. These include 16 Congressional Review Act resolutions, a rescissions package, and the highly controversial reconciliation bill.
The reconciliation debacle. The advantage of budget reconciliation is that it offered Republicans a realistic avenue for achieving significant policy goals without needing a single vote from across the aisle. This, of course, is far from the kind of deliberation that the founders envisioned for Article I. Still, the entire process was marked with ineptitude and weakness by members of Congress who theoretically had some measure of control over the proceedings. Sen. Lisa Murkowski infamously voted for it even though she meekly hoped that the House of Representatives would make the changes to it that she refused to make herself. To make matters worse for Murkowski, Trump immediately announced after signing the law that he would not implement the specific provisions that had been added at the last minute to secure her vote.
Undeclared war. While the Constitution makes the president the commander in chief of the U.S. military forces, it reserves the power to declare war to Congress as part of its broader checks-and-balances design. Trump flagrantly defied this design when he launched bombing raids into Iran and Yemen without even a pretense of authorization from Congress. The failure of Congress to counter this ambition with its own demonstrates just how far we remain from the constitutional vision of “coequal” branches.
Impoundment. Similarly, the Constitution assigns Congress the “power of the purse.” Consistent with this power, when Congress appropriates money, it is meant as a ceiling and a floor. So, the president usurps that power whenever he refuses to spend money appropriated money without a legally authorized reason. Yet, President Trump has repeatedly done just that — at least five times already, according to the Government Accountability Office. The kind of empowered Congress we were promised post-Loper would fiercely resist these intrusions on its powers — particularly after current Office of Management Budget Director Russ Vought practically bragged that he would lead the administration’s impoundment efforts during his confirmation hearings. The Senate confirmed him nonetheless in a party-line vote.
Reduced congressional in-house capacity. A few weeks ago, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) held a hearing on how Congress should reclaim policymaking primacy after Loper. Tellingly, most of the conservative committee members and witnesses were more interested in weakening agencies than in strengthening Article I. The one apparent point of agreement on strengthening Congress was to invest in its in-house capacity, including by expanding resources for staff and support services such as the Library of Congress. Actions speak louder than words, though. Threatened budget cuts by the House of Representatives recently led the Government Accountability Office — Congress’s investigative watchdog and auditor that supports it oversight efforts of the executive branch — to offer early retirement and buyouts to 300 employees, or nearly 10 percent of its entire workforce.
Huge regulatory policy swings. Under Trump, the regulatory pendulum quickly began swinging in the other direction. Outside of immigration and petty grievances (e.g., renaming the Gulf of Mexico), the Trump administration hasn’t had much of an affirmative regulatory agenda. Instead, it has focused on repealing existing regulations, particularly those from the Biden administration. Trump signaled this deregulatory priority with his 10-out, 1-in executive order, as well as the comprehensive “deregulatory initiative” led by the so-called “Department of Government Efficiency” (DOGE). And there’s an irony here: the administration is pointing to Loper as a justification for this massive deregulation campaign.
Clearly, then, Chevron wasn’t the cause of congressional dysfunction. For what it’s worth, I doubt increasing congressional capacity, as discussed at the Senate HSGAC hearing, will make much of a difference, either.
Instead, we almost certainly need to look at the upstream factors that shape lawmakers’ incentives and constrain their actions. Addressing money in politics post-Citizens United, politically gerrymandered congressional districts (which are about to get much worse), and strong hierarchical control within party caucuses all seem to be more fruitful avenues for fixing Congress. After all, members — particularly Republicans — correctly perceive that doing “Article I things” will not get them reelected or ensure their advancement in the caucus. So, until that’s fixed, we should not be surprised when members do not spend their time doing Article I things.
