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

The Constitution never created, and the American people never voted for, an unelected fourth branch of government. Yet over the last century, a malignant administrative state has grown like kudzu over our constitutional architecture. Rule by regulation has displaced rule by law. Unaccountable bureaucrats have displaced electorally accountable lawmakers and political actors. Today, nearly every consequential policy decision is made by Article II and checked by Article III with Article I asked simply to pick up the check.[1]

For forty years, this metastasis was fueled by a doctrine called Chevron deference. It told judges to defer to agencies’ “reasonable” interpretations of “ambiguous” statutes,[2] placing a heavy thumb on the scale in favor of the government when in court.[3] It invited Congress to write vague laws, agencies to stretch them beyond recognition, and courts to wave those expansions through. It inverted our separation of powers.[4]

Last year, the Supreme Court finally buried Chevron in Loper Bright Enterprises v. Raimondo.[5] In one stroke, the Court restored the judiciary’s duty to “say what the law is” and sounded the death knell for the era of blank-check delegation to the administrative state.

For those of us who have spent our careers fighting the unchecked administrative state, Loper Bright was not the end of the war. It was the end of one battle and the beginning of a new one. We now have a once-in-a-generation opportunity to rebuild the constitutional order we were meant to inherit from our Framers.[6]

That is why, within days of Loper Bright, I convened the Post-Chevron Working Group, a coalition of constitutionalists in Congress determined to ensure that the decision becomes more than a legal footnote. The mission was simple: drive a lasting realignment of power away from bureaucrats and back to the elected branches—Congress under Article I, and the President under Article II. I am pleased the Yale Journal on Regulation has decided to hold this symposium on my Working Group report, which I penned to chart a short, medium, and long-term vision toward reclaiming our separation of powers.[7]

This Foreword explains how the Trump Administration has leveraged the Loper Bright moment in the short- and medium-term, the risks of congressional inaction, and Congress’s path forward to restore the Constitution’s original design over the long term. It is both a report and a call to arms: the Post-Chevron Working Group Report in action.

I. The Great Deregulatory Administration: Article II Strikes Back

When President Trump returned to the White House in January 2025, he made clear that this term would not be about trimming red tape at the edges. It would be about dismantling the modern regulatory state at its core.

On day one, President Trump signed Executive Order 14148.[8] That EO rescinded nearly seventy Biden-era directives—from climate mandates to diversity, equity, and inclusion programs—and ordered agencies to propose replacements within forty-five days. The message was unmistakable: the presumption of permanence that had insulated and succored sprawling regulatory programs was gone.

A few weeks later, he issued Executive Order 14215.[9] That EO placed so-called “independent” agencies under presidential supervision, requiring them to coordinate with the Office of Management and Budget, a technical but important process change that administrative-state critics had advocated for years.[10] The EO also stipulated that only the President or the Attorney General could issue binding legal interpretations, reducing the future likelihood of the constitutionally untenable situation where the elected President and his Department of Justice must litigate against the position taken by an independent agency.[11] For decades, commissions like the FTC, SEC, and FCC operated as constitutional anomalies, exercising executive power while insulated from presidential control. Executive Order 14215 helps correct that mistake.

And the effort did not stop at high-level process changes. Across the executive branch, agency heads began rolling back costly and unauthorized rules by the dozen:

• At the EPA, Administrator Lee Zeldin repealed numerous regulations, including the Clean Car Standards, the Clean Power Plan 2.0, and the Methane Emissions Reduction Program.[12]
• At the Department of Labor, the administration withdrew the 2024 Independent Contractor Rule, preserving the flexibility of the gig economy.[13]
• At OSHA, enforcement of the Heat Illness Prevention Standard was halted.[14]
• At the Department of Education, new income-driven repayment schemes were suspended.[15]

These moves were not scattershot. They were guided by a simple principle: no regulation should bind the American people unless it rests on clear statutory authorization from Congress. That is what the Constitution requires. That is what Loper Bright demands.

These efforts are not deregulation by abdication. They are deregulation as constitutional repair. In his first term, President Trump imposed a “two-for-one” rule:[16] agencies had to repeal two rules for every new one. In his second, he raised the target to ten-for-one.[17] That is only achievable through technological reform—through streamlining a body of law that has accreted like barnacles since the New Deal. Accordingly, to accelerate that constitutional repair process, the administration launched an artificial intelligence initiative—the Department of Government Efficiency (“DOGE”)—tasked with scanning the Code of Federal Regulations for duplicative, obsolete, or legally dubious provisions. Early pilot programs suggest that system could cut the regulatory code in half.[18]

The Trump Administration’s decisive actions to check the administrative state are what executive leadership looks like. It is also what accountability looks like: the President directing the executive branch with “energy” and “dispatch,” as the Constitution envisions.[19]

Yet presidential action alone will not be enough. Congress took an important first step earlier this year to check the administrative state legislatively by using the Congressional Review Act to eliminate more than a dozen Biden-era rules. But unless Congress changes its habits and reclaims its preeminent status as the Article I branch, the swamp will simply refill.[20] That is where we must step into the breach.

The ambition of Trump’s second-term project is broader than executive-branch action. Trump’s vision is to restore governmental authority to its constitutional foundation: Congress, not agencies, should write laws; the President, not deep-state insulated commissions, should control the executive; and artificial intelligence tuned to deregulation, not legions of self-preserving bureaucrats, should refine the Federal Register. In this sense, deregulation is not only about fewer rules, but also embedding institutional reforms that will survive beyond the current political moment. Trump 2.0 has attacked the problem at its core, aligning governance with constitutional design while adopting tools to maximize impact.

The consequences are not merely theoretical. Energy prices have stabilized as costly climate mandates have been rolled back.[21] Gig-economy workers retained the flexibility they valued, free from reclassification that would have disrupted established business models.[22] Colleges can no longer depend on expansive taxpayer-funded loan forgiveness to insulate themselves from the harsh accountability meted out by economic reality.[23] The separation of powers concerns in these policy debates were not merely academic, they had concrete effects on daily life.

I predict history will remember President Trump’s second term as “The Great Deregulatory Administration.” To ensure that success endures, Congress must follow through on my post-Chevron blueprint. What can already be said is that 2025 marked a sea change. A convergence of judicial clarity, legislative foresight, executive resolve, and technological capacity has produced the most ambitious deregulatory project in modern American history. Far from reckless, it is a long-overdue restoration of constitutional balance.

II. The Risks of Inaction

Some will say this agenda is too ambitious. Those critics misunderstand the stakes. We have seen this movie before and must learn from the mistakes of the past.

In the 1980s, President Reagan slowed the growth of regulation; in the early 2000s, President Bush tried to streamline it. Both efforts were real. Both left a mark. And yet, the bureaucracy endured—and eventually reasserted itself—because Congress never changed the way it writes law. The moment the political winds shifted, the machine roared back to life. That will happen again if Congress fails to act now. Congress failing to act decisively would raise several risks.

First, the bureaucracy will outwait us. The administrative state’s defining feature is not speed but persistence. It is built to endure. It is ensconced with civil-service protections, fueled by mandatory appropriations, and shielded by institutional inertia. It can simply wait for the next election, the next administration, the next court to blink. The agencies that dismissed or ignored our oversight letters made their strategy clear: stall, stonewall, survive. The administrative state has used this bureaucratic tactic before. During the first Trump Administration, the bureaucracy deliberately delayed and slow-walked President Trump’s agenda, erecting roadblock after roadblock to run out the clock.[24] As the super-charged administrative state under the Biden Administration revealed, Congress cannot leave the loaded gun of Leviathan sitting out on the table. Congress must match the Trump Administration’s decisive actions with equally bold legislative changes to leverage Loper Bright to permanently reform the regulatory state.

Second, the courts will splinter. Loper Bright restored the judiciary’s duty to decide questions of law, but it did not supply a fully formed doctrine to replace Chevron. In the absence of congressional clarity, lower courts will fill the vacuum with conflicting tests and standards. Some will cling to Skidmore deference.[25] Others will smuggle Chevron in through the back door via arbitrary-and-capricious review.[26] Without congressional guardrails, such as the Separation of Powers Restoration Act (SOPRA),[27] the gains of Loper Bright will dissipate into doctrinal fog.

Third, the culture of congressional abdication will persist. For decades, Congress has treated delegation as a feature, not a bug.[28] Vague statutes avoided political accountability and shifted blame to bureaucrats. But Loper Bright makes that habit untenable. Ambiguity now invites judicial skepticism, not judicial deference. If Congress keeps writing blank checks, agencies will keep trying to cash them—and the courts will be forced to legislate from the bench. That is the opposite of constitutional government.

Because political will is fleeting, the Loper Bright moment must be seized before it passes. The window opened by Loper Bright will not stay open forever. Political attention is the scarcest commodity in Washington. Today, there is momentum. There is a President who is willing to wield Article II power. There is a Republican Congress ready to legislate. But windows close. Elections change hands. Bureaucratic resistance hardens. If we fail to mold the cement now, it will set, and we will be left chiseling at stone for another generation.

The choice is not between action and stasis. It is between action and regression. The administrative state does not stay neutral; it grows. If we do nothing, it will grow back—bigger, bolder, and more insulated than before. We cannot let that happen.

III. The Path Forward

If Loper Bright was a demolition, the next step must be reconstruction.

The fight against the administrative state is not a skirmish; it is a generational project. It is not about whether a single regulation stands or falls. It is about whether the American people will be governed by laws written by their elected representatives—or by edicts from anonymous bureaucrats who never stand for election before the voters. To finish this project, Congress must change not just its laws but its culture.

First, Congress must reclaim the habit of legislating. For too long, we have treated statutes as vague mission statements, delegating the hard choices to agencies. That era is over. Statutes must once again be detailed, precise, and binding.[29] Legislative drafters must be trained to spot and eliminate open-ended grants of power. Committees must write with the assumption that agencies and courts will no longer clean up sloppy text with deference. That is not an academic exercise. It is how Article I actually legislates.

Second, Congress must rebuild its oversight muscles. Agencies respond to pressure. Right now, too few members apply it. We need robust, relentless oversight: hearings that matter, subpoenas that bite, riders that stick. We must force agencies to defend every rule on the only ground that matters—clear statutory authorization. That is not “micromanagement.” It is Congress doing its job.

Third, Congress must restore the power of the purse. We must return to regular appropriations—program by program, line by line. If an agency wants to regulate beyond its mandate, it should not expect Congress to fund its defiance.

Fourth, Congress must modernize its own legislative capacity. Legislating in the post-Chevron era will require more technical skill, more legal precision, and more institutional memory. That means reforming the legislative counsel’s office and the different research services available to Congress while investing in staff.[30] If Congress is to legislate, it must be equipped with the necessary tools.

Finally, Congress must legislate for permanence. Executive orders can be undone. Guidance documents can be ignored. But statutes endure. And they endure by design. The Framers built the Constitution’s legislative process to be a difficult-to-run gauntlet to preserve liberty and allow the American people to plan for their futures by preventing “such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”[31] If we want to end the liberty-destroying cycle of regulatory whiplash—one President building, the next tearing down—we must embed these reforms in law. That is why we must capitalize on momentum behind initiatives to permanently reform the administrative state, such as SOPRA, the REINS Act, the CRA Modernization Act, regulatory budgeting, periodic agency reauthorization, and even a constitutional amendment codifying the nondelegation principle.[32] Only through law can we secure liberty.

This is what it looks like to make Loper Bright more than a case citation. This is what it looks like to make it a turning point in the history of the Republic.

The alternatives are clear: either Congress legislates, or the administrative state will. If Congress rises to the moment—if it reclaims the duty and authority the Framers gave it and the responsibility the American people expect of it—we can restore the separation of powers, revive self-government, and prove that constitutional government is not a relic but a living promise.

The cement is wet. It will not stay that way. We must shape it now.

Conclusion

The Founders gave us three branches of government—not four. Loper Bright returned the judiciary to its proper role. The Trump Administration is returning the executive to its proper role. Now it is Congress’s turn to reclaim its proper role.

We must finish the job. We must continue to press, to legislate, to oversee, and to rebuild. The administrative state will not vanish overnight. But if we stay the course, we can make it once again what it was always supposed to be: the servant of the law, not its master.

Eric Schmitt is a U.S. Senator for the State of Missouri.

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[1] See Eric Schmitt, Post-Chevron Working Group Report, 13 Harv. J.L. & Pub. Pol’y (Per Curiam) 1, 10 (2025) (“[T]he core thesis of the Administrative State, [is] that the Administrative State has the delegated authority to create the overwhelming majority of the binding edicts placed upon the American people.”).

[2] See, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121 (2016) (“But because it is so difficult to make those clarity versus ambiguity determinations in a coherent, evenhanded way, courts should reduce the number of canons of construction that depend on an initial finding of ambiguity.”).  

[3] See Eric Schmitt, Supreme Court Just Defeated Big Government. It’s Up to Congress to Make It Stick, Fox News (June 28, 2024), https://www.foxnews.com/opinion/supreme-court-just-defeated-big-government-its-up-congress-make-stick (“As Justice Neil Gorsuch fittingly highlighted during the Loper Bright oral arguments in January, the Chevron doctrine undeniably ‘has this disparate impact on different classes of persons,’ specifically those ‘who have no power to influence agencies.’”).

[4] See Schmitt, supra note 1, at 26 (“On July 11, 2024, the Post-Chevron Working Group sent a letter to the 101 agencies and subagencies that have, since the year 2000, published more than fifty final rules in the Federal Register that carry the force of law. Compare that to the paltry twenty-seven bills Congress sent to the President’s desk for signature in 2023. That means, since 2000, 101 different unelected bodies created two years’ worth of laws each.”) (internal footnotes omitted).

[5] 603 U.S. 369, 412 (2024).

[6] See id. at 414 (Thomas, J., concurring) (“To provide ‘practical and real protections for individual liberty,’ the Framers drafted a Constitution that divides the legislative, executive, and judicial powers between three branches of Government. Chevron deference compromises this separation of powers in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits.”) (internal citation omitted).

[7] See Schmitt, supra note 1, at 1.

[8] Exec. Order No. 14148, 90 Fed. Reg. 8237 (2025).

[9] Exec. Order No. 14215, 90 Fed. Reg. 10447 (2025).

[10] Reviewing Independent Agency Rulemaking: Hearing Before the Subcomm. on Reg. Affs. and Fed. Mgmt. of the S. Comm on Homeland Sec. and Gov’t Affs., 114th Cong. 9 (2016) (testimony of Adam J. White, Research Fellow, Hoover Institution).

[11] See, e.g., Brief for the United States as Amicus Curiae Supporting Affirmance in No. 17-1618 and Reversal in No. 17-1623, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (demonstrating the Department of Justice arguing against the independent agency’s interpretation of Title VII); Brief for the United States as Amicus Curiae Supporting Petitioners in Nos. 16-285 and 16-300 and Supporting Respondents in No. 16-307, Epic Sys. Corp v. Lewis, 584 U.S. 497 (2018).

[12] See EPA Launches Biggest Deregulatory Action in U.S. History, Env’t Prot. Agency (Mar. 12, 2025), https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history; EPA Releases Proposal to End the Burdensome, Costly Greenhouse Gas Reporting Program, Saving up to $2.4 Billion, Env’t Prot. Agency (Sep. 12, 2025), https://www.epa.gov/newsreleases/epa-releases-proposal-end-burdensome-costly-greenhouse-gas-reporting-program-saving-24; Proposed Rule: Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, Env’t Prot. Agency (last visited Sep. 25, 2025), https://www.epa.gov/regulations-emissions-vehicles-and-engines/proposed-rule-reconsideration-2009-endangerment-finding.

[13] See US Department of Labor Issues Guidance on Independent Contractor Misclassification Enforcement, U.S. Dept. of Lab. (May 1, 2025), https://www.dol.gov/newsroom/releases/whd/whd20250501.

[14] Memorandum on Regulatory Freeze Pending Review, 90 Fed. Reg. 8249 (Jan. 20, 2025); see also Jonathan Crotty, Executive Order Halts OSHA Rulemaking, JD Supra (Feb. 7, 2025), https://www.jdsupra.com/legalnews/executive-order-halts-osha-rulemaking-2913815/ (outlining the Trump Administration memorandum’s effect on the Heat Illness Prevention Standard).

[15] See Adam S. Minsky, Department of Education Takes Down Key Student Loan Forgiveness And Repayment Applications, Forbes (Feb. 24, 2025), https://www.forbes.com/sites/adamminsky/2025/02/24/department-of-education-takes-down-key-student-loan-forgiveness-and-repayment-applications/.

[16] Exec. Order No. 13771, 82 Fed. Reg. 9339 (2017) (requiring “for every one new regulation issued, at least two prior regulations be identified for elimination”).

[17] Exec. Order No. 14192, 90 Fed. Reg. 9065 (2025) (requiring “for each new regulation issued, at least 10 prior regulations be identified for elimination”).

[18] Hannah Natanson et al., DOGE Builds AI Tool to Cut 50 Percent of Federal Regulations, Wash. Post (July 26, 2025). Some states have already completed equally ambitious deregulation programs on rapid timelines. See Idaho Cuts and Simplifies 75 Percent of Rules in One Year, Becomes Least-Regulated State in Country, Off. of the Idaho Governor (Dec. 4, 2019), https://gov.idaho.gov/pressrelease/idaho-cuts-and-simplifies-75-percent-of-rules-in-one-year-becomes-least-regulated-state-in-country/ (“Donald Trump has taken on regulatory reform … and Idaho is being held up as the shining example of how to get it done.”).

[19] The Federalist No. 70 (Alexander Hamilton) (“Energy in the Executive is a leading character in the definition of good government.”).

[20] Jay Cost, Congress Is Not a Coequal Branch of Government—It’s Supreme, Nat’l Rev. (Jan. 14, 2019), https://www.nationalreview.com/2019/01/congress-supreme-branch-of-government-not-coequal/.

[21] Trump’s Climate and Clean Energy Rollback Tracker, Climate Action Campaign (last visited Sep. 29, 2025), https://www.actonclimate.com/trumptracker/.

[22] Rebecca Rainey, Trump Labor Department Pauses Gig Worker Rule, Plans Repeal, Bloomberg Law (May 1, 2025, 5:00 PM), https://news.bloomberglaw.com/daily-labor-report/trump-labor-department-pauses-gig-worker-rule-plans-repeal.

[23] See Biden v. Nebraska, 600 U.S. 477, 505-06 (2023); Preston Cooper, Does College Pay Off? A Comprehensive Return on Investment Analysis, Found. for Rsch. on Equal Opportunity (last visited Sep. 9, 2025), https://freopp.org/whitepapers/does-college-pay-off-a-comprehensive-return-on-investment-analysis/.

[24] James Sherk, Tales from the Swamp: How Federal Bureaucrats Resisted President Trump, Am. First Pol’y Inst. (Feb. 1, 2021), https://www.americafirstpolicy.com/assets/uploads/files/Tales_from_the_swamp.pdf.

[25] Eric R. Bolinder, Litigating Loper Bright: Interpretive Challenges and Solutions for the Post-Chevron Era, 128 W. Va. L. Rev. (forthcoming 2025) (manuscript at 5).

[26] Eric R. Bolinder, Dodging Chevron’s Redux: The Proper Place for State Farm Arbitrary and Capricious Review, 24 Geo. J.L. & Pub Pol’y (forthcoming 2026) (manuscript at 1).

[27] Separation of Powers Restoration Act, S. 33, 119th Cong. (2025).

[28] Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463, 1466 (2015).

[29] See Schmitt, supra note 1, at 37–47.

[30] See id. at 6 n.12.

[31] The Federalist No. 62 (Alexander Hamilton or James Madison); Gundy v. United States, 588 U.S. 128, 154 (2019) (Gorsuch, J., dissenting) (arguing the Founders believed “[a]n excess of law-making was … one of the diseases to which our governments are most liable” and therefore “[t]o address that tendency, the framers went to great lengths to make lawmaking difficult”).

[32] See Schmitt, supra note 1, at 5–26.