Witnesses Call on Congress to Establish Regulatory Office in Wake of Loper

Congress must adjust to the demise of the Chevron Deference doctrine by drastically improving its regulatory expertise, witnesses told a House Committee on July 23.

“Congress must reclaim its lawmaking and rule-writing authority from the executive branch by marshaling appropriate resources and full-time personnel to perform regulatory oversight, including cost-benefit analysis and disclosures often neglected by the executive branch, sometimes in violation of law,” Clyde Wayne Crews Jr., a fellow in regulatory studies at the Competitiveness Enterprise Institute, told the House Administration Committee at a hearing on the impact of the Supreme Court’s Loper decision.

While other witnesses said that the decision will provide federal judges with more power, Crews emphasized that Congress must step up and write laws with much more specificity or risk having them interpreted by courts  without the guidance of agencies.

Crews noted that policymakers have long called for the establishment of a Congressional Office of Regulatory Analysis.

Kevin Kosar, a senior fellow at the American Enterprise Institute agreed that an office he referred to as the Congressional Regulation Office is essential in the post-Loper world.

“Congress must invest in its capacity if it wants to have any chance of ensuring the executive branch is faithfully executing the law when it issues regulations,” he said, adding that the new office should be modeled after the Congressional Budget Office.

Satya Thallam, senior vice president of government affairs at Americans for Responsible Innovation and a senior fellow at the Foundation for American Innovation, said while Congress could beef up its regulatory oversight it also could simply enshrine the Chevron Deference doctrine in law.

“Nothing in the decision prohibits Congress from delegating vast swaths of authority to the Executive Branch – it just has to say so explicitly,” she said.

Indeed, Rep. Pramila Jayapal, D-Wash., has introduced H.R. 1507, which would make the Chevron deference doctrine federal law.

Josh Chafetz, a professor of law and politics at the Georgetown University Law School said Congress could pass legislation making it clear that an agency must follow Congress’s directives.

“Indeed, if Congress were so inclined, rather than inserting these Chevron clauses into individual regulatory statutes, it could pass…Chevron writ large,” he said. “In other words, it could pass a single statute saying something like, ‘In any circumstances in which the application of any act is ambiguous, the agency statutorily charged with administering that act shall interpret the act consistently with the act’s purpose and the agency’s mission.’”