Congress After Chevron: What Citizens Should Demand of Their Legislature

Heritage Foundation's excellent white paper deserves a full read, because restoring a constitutional Congress after Chevron is essential to preserving freedom.

Dual benefit: these points are almost universally applicable to state legislatures as well.

Due to length, I've clipped the portions most relevant to healthcare freedom. 

https://www.heritage.org/the-constitution/report/congress-after-chevron-what-citizens-should-demand-their-legislature

October 30, 2024 

 Summary

Getting Congress to retake the reins of power from the administrative state will be difficult not because an action plan is hard to formulate, but because only Congress can put the plan into action—something it does not want to do. Rather than being content with the status quo, we should demand more of Congress. It may be unrealistic to think that Congress will adopt any of the policies suggested in this paper on its own, but we still ought to demand that it do so. That is the only chance we have to rejuvenate our first branch of government, and making the attempt is probably one of the few ways we can develop the national character that is essential for reform.

Key Takeaways

1. The administrative state puts both the lawmaking and law-enforcing powers in the President’s hands—a placement incompatible with liberty.
2. Only Congress can fix this problem, and it will only do so if Americans citizens demand it.
3. The end of Chevron deference alone will not restore Congress, but we can take some small steps to begin cultivating the culture of self-government that will.

If you asked high-school civics students, “Who makes America’s laws at the federal level?” they would probably answer, “Congress.” After all, the Constitution gives the lawmaking power to Congress. That answer, however, would be only partially right: In truth, it would be mostly wrong. Although Congress makes some of America’s laws—typically a few hundred during each two-year term—most are made by administrative agencies, which produce between 3,000 and 4,500 laws every year, many of enormous political, economic, or cultural significance.https://crsreports.congress.gov/product/details?prodcode=R43056.</p> ;">1

https://crsreports.congress.gov/product/details?prodcode=R43056.</p> ;"> This is not the government that the Framers of the Constitution created, and at no point in American history did the people change their Constitution to make bureaucrats their primary lawmakers.

A very small part of the blame for the ongoing move away from constitutional government toward administrative government falls at the feet of a doctrine called Chevron deference. That doctrine, which the Supreme Court created in 1984, held that whenever a law that gave Congress’s power to an agency was ambiguous, judges had to defer to the agency’s interpretation of that statute provided that it was “reasonable.”2

 That doctrine allowed agencies to expand their powers without clear or express congressional authorization. Before Chevron, Congress could give agencies just about any power it wanted to give them, but after Chevron, agencies could often take whatever power they wanted to take. Our first branch of government was already withered when Chevron came along in 1984, but Chevron made things worse because it allowed partisan Presidents—who control agencies—to drain away Congress’s powers for their own purposes. Thus, the lawmaking and law-enforcing powers were placed in the same hands—a placement incompatible with liberty.3

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...there is no sign that they will move the Court to reverse its disastrous Commerce Clause, Necessary and Proper, or delegation cases23—that is, to put Congress’s power back in the bottle where, constrained, it works better. Nevertheless, these reasons ought to move American citizens to demand more of their government.

Perhaps it is naïve to assume that these reasons will move us or that, even if we are so moved, we will succeed in restoring the first branch of government. After all, Congress is ultimately a reflection of “We the People.”24

 If Congress is filled with partisan performers rather than serious governors, perhaps that reflects the sorry state of our national character. Or perhaps the institutional incentives are just so broken that only the most virtuous representatives could resist them.25

 But all is not lost, because character is improved by habitual good work, and in the work of trying to restore Congress, we will find many opportunities to build our character. That work will produce self-governance, wisdom, justice, candor, industry, maybe even courage, surely a healthy dose of righteous indignation, and—perhaps best of all—a long-missing sense of civic friendship. For that reason alone, we ought to make the attempt.

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Now Congress cannot know enough. The federal government, with its now nearly unfettered powers, regulates many complicated things from food production to financial markets, from nuclear power to occupational safety, from novel drugs to family planning, and measureless more. Congress lacks the knowledge required to do all this well. This lack has been turned into an argument for the administrative state: That is, because Congress lacks the expertise necessary to make highly technical, granular decisions, it should simply hand over all decisions involving complex subjects to the administrative state.

But this argument goes too far. Congress may never have the expertise to decide whether a new chemical compound is safe for consumption and, if so, in what quantities, but it can and should develop the expertise necessary to guide and prescribe the aims and powers of the bureaucrats who will make that decision. This same principle is at work wherever Congress gives power to subject-matter experts in agencies. Congress must develop at least enough expertise of its own to be sure that the bureaucrats’ expertise is both constrained and directed at the common good within the means prescribed by Congress.

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Some small reforms might start Congress along the right path.

Step one might be to remind Congress not to panic. Congress writes the worst laws when, in a panic, it fires text in a scattershot pattern at problems that it sees only dimly at a distance. The major spending bills of the past few years are excellent examples of terrible lawmaking.

It is not just that these bills threw vast amounts of money haphazardly at ill-defined problems like a lunatic striking wildly at ghosts in a mist, but that all were “unambiguously regulatory” before a dollar was spent.

With each of these laws, Congress panicked in response to poorly understood issues and granted the administrative state vast powers to “do something” about them.

Congress’s first—and only—impulse was to throw bags of cash at the bureaucrats and pray that they would move in mysterious ways to the nation’s rescue. There was the world’s greatest deliberative body on its knees, begging and bribing bureaucrats for “solutions” of dubious necessity.

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... we ought to demand even more: that members of Congress come to understand Congress’s original role in our constitutional system. Congress should be the primary lawmaker, and its lawmaking power should be limited. At present, Congress is not primary; that honor goes to the administrative state. And Congress’s power is not limited; it is nearly plenary and therefore more than Congress can manage.

This status quo has its defenders who would likely respond to the demands made here by saying that Congress cannot possibly fulfill them. There is just too much for Congress to do. It cannot review new rules because there are too many, and it cannot gather more information because there is no time.

But those arguments rely on an erroneous premise: that the federal government should do all that it currently does. For a vast array of reasons—both practical and philosophical—much of what the federal government does it should not do. Members should shake off the erroneous assumption that every public policy issue has a federal solution.

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GianCarlo Canaparo is a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Canaparo’s research focuses primarily on constitutional and administrative law. Although he writes on several constitutional topics, he focuses especially on equal protection, civil rights, and the rule of law.

In addition to Heritage publications, Canaparo’s scholarship has appeared in law reviews including the Harvard Journal of Law and Public Policy, the Notre Dame Law Review, the Georgetown Journal of Law and Public Policy, the Texas Review of Law and Politics, and the Administrative Law Review. His research has been featured in the Wall Street Journal, and his analysis has appeared in Law & Liberty, Fox News, The National Review, Law 360, FedSoc Blog, and other outlets.

In addition to researching and writing, Canaparo co-hosts The Heritage Foundation’s SCOTUS 101 podcast, which follows the Supreme Court’s arguments and opinions and features interviews with judges, advocates, and scholars.

Canaparo joined Heritage in 2019 after serving for two years as a law clerk to a federal district court judge. Before his clerkship, he spent three years as an associate at the law firm of Skadden, Arps, Slate, Meagher & Flom. He earned his law degree from Georgetown University, where he was a published editor of the Georgetown Law Journal, and his bachelor’s degree in economics from the University of California at Davis.