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With New Memo on Chevron, Congressional Republicans Inadvertently Rebut Argument in Favor of Overturning Chevron

Responsive Government Courts Defending Safeguards

Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.

It’s worth reflecting on this memo because one of the issues that came up at the Loper Bright/Relentless oral argument was what sort of response overturning or limiting Chevron would provoke from Congress. This memo gives us a first concrete look at the answer to that question.

Broadly speaking, during oral arguments, the conservative justices embraced the view that Chevron creates disincentives for Congress to do its job properly. The implication then was that limiting or overturning Chevron would spur Congress to “Article I” better (however that might be defined).

Bearing this all in mind, it is striking by how little Article I actually figures in the RSC memo. Instead, its primary agenda items are litigation (Article III) and imposing more restrictions on agencies (Article II). The closest it comes to “empowering” Congress is the REINS Act, a law that would prohibit an agency from issuing a final “major rule” (having an annual economic impact of $100 million or more) unless Congress affirmatively approves it through fast-track legislative procedures. But, as a form of legislative empowerment, even the REINS Act is pretty weak since its use, by definition, springs from a reactionary posture and because it is intrinsically not constructive.

Not for nothing, everything listed in the memo was more or less congressional conservatives’ agenda all along. In order words, the looming advent of a post-Chevron world doesn’t seem to have provoked any change in direction for at least one party in Congress.

Notably, though, there’s nothing in the memo about finding ways to cross the aisle, improve regular-order lawmaking, or increase in-house capacity.

Maybe the problem with Congress isn’t Chevron after all.

Responsive Government Courts Defending Safeguards

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