This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.

The Post-Chevron Working Group Report reads less as a plan to improve Americans’ lives through streamlining agencies and achieving democratic accountability than as a broadside against the functionality of American governance that has risen as Congress has abdicated its powers and authorities.  It ignores not only the intent of Congress in creating and empowering the federal agencies of which it complains, but also the deterioration of congressional infrastructure that allows it to act more robustly.  The proposed recommendations are an overcorrection that could, if enacted, eliminate the ability of agencies to respond to novel, complex, and emerging problems, while Congress dithers in gridlock of its own making.  Rather, the anti-regulatory proposals ensconced within the report seem a paean to the Lochner era when courts prohibited government from reining in corporate and monied interests running rampant over the populace.

The report does not wrestle with Congress’s dwindling action as a hurdle to effective governance.  Past Congresses were far more active than more recent legislatures. The 93rd Congress (1973-74) enacted 772 laws, compared to 274 enacted by the 118th (2023-24). Regardless, agency action in the face of congressional inaction is not the fault of agencies. 

The now-complained-of agencies were created by muscular, bipartisan Congresses that recognized the complexities of the modern age—making them intentionally replete with non-partisan, career experts to tackle difficult problems facing society that were beyond the expertise of Congress with its limited staff of generalists. Congress has done nothing to bolster its capabilities in ensuing decades.  Congressional support staff (GAO, CRS, etc.) and Committee staff in the House of Representatives were cut by one-third in 1994. The Office of Technology Assessment was eliminated.  Congressional staffing levels remain at 1979 levels and pay rates have not kept up with inflation, resulting in a brain drain and chronic understaffing to deal with the nation’s most pressing problems.  

To assert that Congress can now step in and hold agencies accountable—without first putting its own house in order—by requiring that it approve every major regulation enacted and reauthorize agencies every 10 years is disingenuous at best.  If Congress is capable of enacting just 23 laws per year as the report asserts, it would be wholly incapable of approving (or disapproving) more than 100 major regulations across more than 100 highly detailed and complex subject matter areas each year. It simply does not have the capacity.  Plus, Congress already has tools at its disposal to do away with disapproved-of regulations via the Congressional Review Act. 

The proposed reforms, though cloaked in assertions of accountability, would be anything but.  They would result in mass confusion in regulated fields and give rise to a greater appearance of corruption. The CRA Modernization Act—eliminating the time limit for congressional disapproval of regulations—would take longstanding protections away from the American people as intense industry lobbying would immediately begin to influence congressional decision-making over the vested interests of everyday Americans.  The proposed REINS Act would turn Congress into a barricade or a rubber stamp—depending on who held the reins of power—that would effectively permit agency action only in the event of a political trifecta.  It would effectively foreclose the ability of federal agencies to protect and support the American people per their statutory mandates and Congress’s intent.

Some of the concerns that the report takes issue with—lack of agency engagement with the public, lack of public accountability, and improper cost-benefit analysis—were being addressed by President Joe Biden’s Executive Order (EO) 14049, Modernizing Regulatory Review.  The EO called for additional public engagement by agency field offices to identify local and regional needs of the citizenry—something ostensibly addressed by the proposed DRAIN Act that would unnecessarily move agencies out of Washington, D.C.  The EO addressed petitions for rulemaking—a citizen-led effort to ensure that agencies were addressing community needs because there is no justiciable right to sue for non-enforcement.  It called for improved cost-benefit analysis to not just take into account the monetized impacts of a regulation (or lack thereof) but also the broader impacts—yet another complaint of the report.  President Donald Trump revoked that EO upon retaking office. 

The report’s proposed legislative remedies to these concerns do little to implement the changes reflected in the Biden EO that would have empowered individuals and communities to engage in the rulemaking process and made agencies more democratically responsive.  On the other hand, the report’s legislative proposals would give advantages to special interests with the wherewithal—and financial resources—to effectively lobby a politically oriented Congress largely devoid of subject matter expertise to achieve their preferred outcomes.  Likewise, the report unsubstantiatedly declares the D.C. Circuit Court of Appeals a “corrupting influence,” and proposes the D.C. Circuit Jurisdiction Reform Act.  In the sense that every accusation is an admission, this bill would allow special interests challenging regulations to forum shop for judges more aligned with their purported policy concerns, in circuits that may not have substantial legal precedents in the administrative law field—inserting a corrupting influence into litigation.

The report wraps itself in assertions of accountability and separation of powers while doing little to actually alleviate those purported concerns. Ultimately, if the authors of the report want democratic accountability and a robust Congress, they should look inward.  Congress should bolster its own internal expertise and infrastructure to be able to stand on equal footing with agency expertise. At a minimum, a reinstated Office of Technology Assessment—at the dawn of a new age of AI—would be useful to a Congress concerned with creating a regulatory framework around AI. If accountability were truly at issue, they would recommend enhanced voting rights and a nationwide end to gerrymandering given the lack of competitive congressional seats which suppresses compromise and innovative ideas within Congress. As it stands, however, the report instead provides a blueprint for a know-nothing Congress to end the affirmative protections agencies provide for the public while ceding power to monied special interests.

Devon Ombres is Senior Director for Courts and Legal Policy at the Center for American Progress.