The Supreme Court could sharply curb executive power in the coming days, and House Republicans are gearing up to wield the expected ruling against the Biden administration.
On Wednesday, the Republican Study Committee, the largest conservative caucus within the House GOP, held a luncheon for members of Congress with the president of the New Civil Liberties Alliance, one of the law firms arguing to overturn Chevron deference before the Supreme Court.
The lunch came on the heels of a memo RSC sent its nearly 200 House members this week, stating that the Supreme Court could open the door to “rolling back Biden’s woke and weaponized administrative agenda.”
The Supreme Court appears poised to overturn, or sharply limit, a 40-year-old precedent of courts deferring to government agencies’ interpretation of ambiguous laws. Such a ruling would make it easier for businesses to challenge government regulations on a wide range of issues — from mining permits to drug approvals to clean-water standards.
“Each House Committee should scour Biden-era regulatory actions and highlight any that should be considered for judicial review post-Chevron,” the RSC memo stated.
Republican Study Committee Chair Rep. Kevin Hern insisted his focus on Chevron is about reining in executive power — no matter who is in the White House, though the memo focused on Biden-era rules.
“We’ve got to address executive actions on both sides,” Hern told NOTUS. “Both parties bypass the House of Representatives.”
Conservatives argue that “unelected bureaucrats” have too much power. But legal experts say that unless Congress starts writing less ambiguous laws — and taking harder votes — regulatory decision-making power will shift to unelected judges instead. Big law firms have already begun advertising to clients that it could soon be easier to beat the government in court.
The Supreme Court is “sending a lot of things back saying Congress should do their doggone job,” Hern told NOTUS. “I would argue that we’re not right now, and I’m part of that.”
“We’re really looking strictly at Chevron right now to see how we can slowly regain the congressional authority that we have so easily given up over a period of 40 years,” he added.
The memo listed various bills sponsored by Republican lawmakers, including Rep. Kat Cammack’s REINS Act requiring Congress to vote on certain agency regulations, and Sen. Ted Budd’s proposal to roll back two existing regulations for every new regulation (mirroring a Donald Trump presidency policy).
One advocate with a conservative think tank, who has argued that overturning Chevron could jolt Congress into becoming more effective, told NOTUS the RSC’s memo largely focused on how it can roll back existing regulations and not on how to become a more effective government body.
“There are some very good reforms in this list of bills,” American Enterprise Institute’s Kevin Kosar told NOTUS. “But mostly, these bills are deregulatory in nature and do not give Congress the capacity it needs to engage in consistent, expert oversight with the whole of federal regulatory activities.”
Meanwhile, Marci Harris with the POPVOX Foundation said Congress doesn’t need Chevron overturned to start writing less ambiguous laws.
“Congress has always had the power to reclaim its authority — either through greater clarity in specific bills or through legislative proposals like those mentioned in the memo, Chevron notwithstanding,” Harris said. “Congress needs to invest in itself.”
If House Republicans are serious about Congress taking back power, it would take funding, Lorelei Kelly, a modernization researcher with Georgetown University told NOTUS. “I look forward to every member of the Republican Study Committee supporting a hefty funding increase for the legislative branch next year during appropriations season so that we can carry out the suggestions they outline in their post-Chevron memo,” Kelly said. “I am sure many of us will be watching with great anticipation.”
—
Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.