House Republicans called on department and agency heads to detail how the toppling of the Chevron doctrine could affect their interpretations of statutes and litigation during the Biden administration, explicitly citing rules related to the White House’s climate, clean energy, and environment priorities.
The Supreme Court’s Loper Bright Enterprises Inc. v. Raimondo decision is on senators’ minds as well, although they’re taking more of a wait-and-see approach, reaching out to legal experts and waiting for others to weigh in on how the opinion will change their approach to writing legislative text.
House Majority Leader Steve Scalise, R-La., announced that on July 10 House Republican committee chairs sent letters to 14 of the 15 Cabinet-level departments and another 22 agencies, demanding information on how the overturn of Chevron would influence actions, litigation, and enforcement, and whether actions, litigation, and enforcement would have been undertaken in the first place if the Chevron deference hadn’t been in place.
The Court's decision on June 28 overturned a 40-year precedent from Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), which established that if a federal agency’s interpretation of a statute is reasonable, it’s entitled to judicial deference.
“Agencies can’t be allowed to run free without any checks on their power — we’ve already seen how frequently federal agencies will abuse their authority,” Scalise said. “We intend to ensure agencies are held accountable following the court’s ruling and observe the proper checks on their power.”
The letters to various agency heads argue that the Biden administration has promulgated more major rules than previous administrations and calls on the agencies to review a wide swath of their interpretations of statutes and litigation since January 20, 2021, that could be affected by the ruling. The lawmakers specifically cited regulations and rules originating from Treasury and other agencies for laws related to President Biden’s clean energy, climate, and environmental priorities. They requested a response by July 24.
Several department heads, including Treasury Secretary Janet Yellen, received letters from two committee chairs, while Homeland Security Secretary Alejandro Mayorkas, impeached by the House in February, received three letters. Housing and Urban Development Acting Secretary Adrianne Todman was the only department head in the Cabinet who didn’t receive a letter. Most of the letters were signed by Oversight Committee Chair James Comer, R-Ky., along with the chair of the committee with jurisdiction over the department or agency.
A letter to Yellen from House Ways and Means Committee Chair Jason Smith, R-Mo., requested an explanation of the impact of Loper Bright on the department’s authority for legislative rules, agency adjudications, enforcement actions, and interpretative rules since January 20, 2021, as well as judicial decisions in which Treasury has been a party since the Supreme Court issued its Chevron decision in 1984.
The letters were sent the day after the Ways and Means Committee advanced a Congressional Review Act resolution (H.J. Res. 148) that would overturn Treasury regs (T.D. 9995) regarding clean vehicle credits under sections 25E and 30D. The resolution advanced along party lines.
Watching and Waiting
In the Senate, lawmakers are also paying attention to the ruling and its interpretation, but are waiting to see how it plays out.
Whether the ruling will cause rewriting, technical corrections, or just a lot more work is an open question, according to a couple of Republicans on the Senate Finance Committee.
“There’s going to be a lot of discussion as to what the implications are” of Loper Bright, said Sen. John Barrasso, R-Wyo., who chairs the Senate Republican Conference, the third-ranked slot in Senate GOP leadership. “I talked to some folks in the tax area last night and they have a lot of questions as well.”
But Barrasso welcomes the transition period.
“I support what the Supreme Court did. They got it right,” he said.
Senate Finance Committee member Todd Young, R-Ind., said he agrees with the Supreme Court’s decision and argued that it allows for Congress to have better control over the thorny details of the law, but he also said using that new ability may not be a smooth process.
“I acknowledge that this will create a lot more work and could lead to certain suboptimal outcomes now that Congress is in control of this process,” Young said. “We’re very early in the process, but my conclusion is that now a number of members of Congress who have become very proficient at appearing on news — but not very proficient at lawmaking — are going to have to step up and do a lot more work in developing coalitions and consensus around really thorny details.”
Young declined to comment on how any specific laws might be affected by the ruling.
Sen. Cynthia M. Lummis, R-Wyo., coauthor of a pair of complex cryptocurrency bills totaling more than 450 pages, isn’t sweating that Loper Bright might make it harder to write legislative text.
“It will make it harder, and it should make it harder,” said Lummis, who added that the decision would come down particularly hard on the writers of dense and complex laws. “Thankfully, the Supreme Court has basically instructed the legislative branch that it must be more specific.”
“We do need to be more detailed in our legislation and not defer to agencies so people that are subject to the law and the rules and regulations don’t get whipsawed between liberal and progressive policies versus conservative policies, depending on who’s running the executive branch,” Lummis said.
Impacts Already Seen
Senate Finance Committee ranking member Mike Crapo, R-Idaho, referenced Loper Bright in his questions for Biden’s Tax Court nominees at a July 10 hearing, asking the potential judges how they would handle cases on rules in front of the court following the ruling. All three affirmed they would rule that agency guidance is invalid if it does not align with the statutory language of the law as written by Congress.
Finance Committee Chair Ron Wyden, D-Ore., said clarity of legislative intent is promoted by bipartisan efforts, pointing to a pharmacy benefit manager regulation bill (S. 3430) both he and Crapo backed.
“When Sen. Crapo and I did the PBM bill, the pharmaceutical middleman issue, the vote was 26 to nothing,” Wyden said. “You don’t get 26 to nothing votes by osmosis; I think it was because we made the intent of Congress clear.”
Correction, July 11, 2024: Due to an editing error, an earlier version of this story said Loper Bright was decided in a 6-3 vote. Loper Bright was decided 6-2 because Justice Ketanji Brown Jackson recused herself from the case. Jackson joined the dissent on a related ruling the same day that also overturned Chevron (Relentless Inc. et al v Dept of Commerce), making that decision 6-3.