SCOTUS just did away with Chevron deference, effectively trimming the discretion enjoyed by hundreds of thousands of federal regulators across 70+ agencies.
As expected, anti-regulation voices are sounding off with unbridled glee as conservative lawmakers blow the dust off of old legislative proposals that have never garnered bipartisan traction.
If such reactions are misplaced, then how should one process this admittedly momentous decision by the high court?
Let’s start by acknowledging a truth that some on the left are loathe to admit: the work of federal regulators—thousands of new mandates every year, imposing tens of billions of dollars in costs–largely escapes oversight by elected officials. In my recent report for the Progressive Policy Institute, I note that just 8% of all new rules are reviewed by the White House, and just 17% of all new rules are required by Congress. Regulators are most certainly driving the bus.
And let’s acknowledge another truth ignored by some on the right: the public benefits enormously from regulation. Benefits exceed costs by a large margin—a conclusion drawn across numerous studies, including annual reports from the Office of Management and Budget. And polling shows that the public overwhelmingly supports regulatory protections—think clean air, safe transportation, unadulterated medicines, fiscally sound banks.
So what can and should be done, if anything, to ensure appropriate checks and balances on the so-called administrative state?
Deferring to the courts is not a viable long-term solution. Judges are ill-equipped to play the role of regulator—they lack expertise in the very technical matters that are often at the heart of any rulemaking action.
Greater reliance on the president is better, but not much. Executive orders govern the regulatory review process, but executive orders do not have the force of law, and some of the most active regulatory agencies are, by design, not subject to White House control.
No, the key take-away from the SCOTUS ruling is that Congress, which delegates its authority to regulators, needs to elevate its game when it comes to oversight. It should pass a law that shines a light on troublesome rules before they are issued. But it should do so without sacrificing the issuance of necessary rules, which are legion. Regulators deserve a nudge, not a shove.
Fortunately, such a solution—in the form of regulatory early notice—was recently introduced in the House of Representatives. The bill, H.R. 8204, co-sponsored by Rep. Don Davis (D-NC), Guy Reschenthaler (R-PA), and Tim Burchett (R-TN), would require agencies to disclose to Congress every newly initiated rulemaking, along with an explanation of its necessity and the rationale behind it. And the public would be invited to submit ideas on how best to achieve the regulatory objective at the lowest cost.
In many ways, the bill does not break new ground. It borrows language from a Clinton-era executive order that has been in place since 1993 and affirmed by every President since. And it embraces recommendations of the Administrative Conference of the United States, which was established to convene legal scholars and other experts to identify needed reforms.
What is new is this: the bill would allow Congress to see exactly how federal agencies use their delegated authority long before a new rule is issued. Just as sunlight is the best disinfectant, disclosure is the best way to ensure stronger, more defensible regulation from the get-go. The concept is, to coin a phrase, radically pragmatic. Congress should act on it.
For more on the need for regulation reform that promotes transparency and accountability in federal rulemaking, check out a recent PPI paper titled “Stronger Regulation from the Get-Go.”
About the Author
Keith B. Belton is Senior Director, Policy Analysis and Statistics, with the American Chemistry Council. His research and writings explore the intersection of public policy and private markets, with particular focus on economic development, regulation, and competitiveness.
