For four decades, Congress has played a shell game with the American people. The legislative branch has lazily delegated its authority to the executive branch.
Federal bureaucrats have written the lion’s share of the laws most of us deal with on a daily basis. In reversing the 1984 holding in Chevron v. Natural Resources Defense Council, the Supreme Court has called Congress’s sleight of hand and forced legislators to draft law once again.
As an attorney who has served as counsel in both the U.S. House of Representatives and Senate, I witnessed firsthand the incestuous relationship between Congress and federal regulators. To understand the problem, Americans first need to understand how Congress really works.
Politics is a tough business, and specific legislative provisions give opponents more to attack. For generations, legislators have solved that specific challenge by giving their authority to federal agencies instead. Congress certainly can write the law. In fact, teams of attorneys in the House and Senate Office of Legislative Counsel have the ability to make bills as specific as legislators would like.
So why don’t legislators write our laws with exacting clarity?
Members of Congress should, but won’t, use the authority they have
The shell game gives Congress a bureaucratic political buffer. Take immigration regulation for example. President Joe Biden reversed many of President Donald Trump’s regulations immediately after taking office. Angry voters call their representatives who commiserate with their constituents and lament the unelected bureaucrats’s regulatory overreach. Sadly, nothing can be done to address the rule because the other party in Congress won’t agree to reject the new immigration rule.
Congress has passed so many laws over time that executive branch agencies are littered with lawmaking authority. Rarely does Congress rein in the agencies by rejecting regulations or calling back its authority. Congress drafts the laws and then legislators blame the bureaucrats when Americans are upset. If a regulatory move is popular, the politicians crow about it from the rooftops as if they’d done the work themselves.
The political motivation to delegate congressional authority hides behind practical considerations. In a country as large as the United States, drafting the specific applications of certain federal laws in every context across the nation would result in most material legislation becoming thousands of pages long. Again, Congress isn’t prevented from consulting with experts and writing the law. Legislators simply don’t.
For example, Congress regulated fisheries in federal waters with the Magnuson-Stevens Fishery Conservation and Management Act in 1976. The original law is 31 pages long. Since 1994, as far back as the online version of the Federal Register dates, agencies have issued more than 9,700 federal rules related to the Magnuson-Stevens Act. As an example, one rule finalized in May of 2024 establishes federal fishery management for all salmon fishing that occurs in the Cook Inlet Exclusive Economic Zone. That one rule is 50 pages long.
Ironically, the Supreme Court reviewed a National Marine Fisheries Service (NMFS) rule under the Magnuson-Stevens Act to turn the federal regulatory state on its head.
Federal courts used to give near carte blanche to executive agencies
In 2020, NMFS implemented a rule requiring Atlantic herring fishermen to bear the cost of onboard catch observers as part of a fisheries management plan. The rule imposed significant costs on the anglers who subsequently filed a lawsuit arguing that NMFS didn’t possess authority to impose such a regulation in the first place. In the lower courts, the Supreme Court’s Chevron holding meant that NMFS only needed to provide a “permissible” explanation of its statutory authority to prevail.
Under Chevron, federal courts gave massive discretion to federal agencies to bootstrap any legal ambiguities or omissions into regulatory authority. Between two competing interpretations of statutory ambiguities, the scales of justice have been consistently tipped in favor of federal agencies over plaintiffs.
Just in time for Independence Day, the Supreme Court held that courts must interpret the law instead of federal agencies. It overturned Chevron and gave new life to the herring fishermen’s case and likely spawned countless new challenges to overreaching federal regulation.
“In the business of statutory interpretation, if it is not the best, it is not permissible,” wrote Chief Justice John Roberts for the 6-2 majority in Loper v. Raimondo.
As a result, Congress must now write the law itself instead of giving a wink and a nod to the executive branch. If legislators fail to take on the responsibility, federal judges will hear arguments about what Congress meant. The legal positions of everyday Americans are now on even footing with the bureaucrats. Those seeking to rein in regulators may not prevail, but at least they have a chance.
More: From the Chevron rule to Trump’s immunity, how the Supreme Court voted in recent rulings
Agencies must stop using outdated delegations of authority
This isn’t the end of expertise in federal regulation. NMFS, for example, possesses deep expertise in fisheries. Congress isn’t prevented from calling upon that knowledge to develop laws. It may even decide to empower the agency to draft regulations consistent with statutory authority.
But that authority now has real limits.
“[A]gencies have no special competence in resolving statutory ambiguities,” Roberts wrote. “Courts do. The Framers…anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.”
The days of Congress leaving a legislative blank check depending on a politically-aligned White House to fill it in are over. Either Congress writes the law with clarity or the best statutory interpretation should prevail. Agencies using outdated delegations of authority to effectively enact new laws will be met with meaningful legal challenges.
In trying to push federal regulators off their boats, a few Atlantic herring fishermen set a hook in the American regulatory state. Any fisherman knows it’s tough to tell what you’ve got while you’re reeling it in, but over the next few years, America will find out that the Loper decision is indeed a keeper.
USA TODAY Network Tennessee Columnist Cameron Smith is a Memphis-born, Brentwood-raised recovering political attorney who worked for conservative Republicans. He and his wife Justine are raising three boys in Nolensville, Tenn. Direct outrage or agreement to smith.david.cameron@gmail.com or @DCameronSmith on X, formerly known as Twitter. Agree or disagree? Send a letter to the editor to letters@tennessean.com.
This article originally appeared on Nashville Tennessean: Supreme Court ruling: Reversing Chevron makes Congress do its job
