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.

I have a certain obsession with Congress’s capacity for legal deliberation. I have tried to build out the promise of the ongoing renaissance in legislative constitutionalism.[i] In Resurrecting the Trinity of Legislative Constitutionalism, I revealed a long-buried practice for resolving lawmakers’ most pressing constitutional questions.[ii] Congress’s lead lawyers used a hierarchical system of precedential opinions to guide each chamber’s constitutional deliberations. More recently, in a draft paper entitled Remembering Congress in the Myers-to-Humphrey’s Interregnum, I show how this practice of constitutional deliberation guided Congress after Chief Justice Taft’s incursion into Article I prerogatives in Myers v. United States.[iii] In this piece, I show Congress’s potential when lawmakers set out to engage in real time with new Supreme Court decisions.

So when Eli Nachmany reached out to see if I would be interested in commenting on Senator Eric Schmitt’s Post-Chevron Working Group Report, I was excited to engage with the latest chapter in Congress’s long history of engaging with new legal developments. This excitement soured quickly as I read the Report.

Senator Schmitt’s Report has very little to say about Chevron deference or the Supreme Court’s decision in Loper Bright.[iv] The Report is mostly a collection of loosely related tangents and partisan talking points. In a humorous section devoted to “short term priorities,” Schmitt calls for across-the-board cuts to federal expenditures flowing to the administrative state,[v] apparently unaware that this objective has preoccupied the GOP since at least the 1980s. Short references to long-simmering suggestions like the REINS Act play like callbacks in a Marvel movie. They are devoid of any original contribution.

You simply cannot engage with the Report if you take its stated objective too seriously. Its longrun policy proposals are total nonstarters. For example, the idea of sunsetting all federal regulatory authorities every 10 years is impractical precisely because time is the most valuable asset on Capitol Hill.[vi] Congress does not have the capacity (and likely never will) to seriously implement this proposal and simultaneously avert a massive slowdown in the legislative process.

In short, this Report has very little to do with the post-Loper Bright landscape. The Report barely has any connective tissue between Loper Bright and its policy proposals. At one point, Schmitt says that Loper Bright creates a “historic opportunity” to engage in sunset review of all federal agencies.[vii] What does that even mean? The case has no apparent connection to Schmitt’s proposals. Since the Report has so little interest in Loper Bright, I’ll take this opportunity to lament the Report’s constitutional politics and the sorry state of the Senate’s internal legal deliberations.

Schmitt realizes that one problem with his hostility to the administrative state is that the federal agencies he is targeting were created by his long-dead predecessors to safeguard Article I power.[viii] So he frames Congress’s construction of the administrative state as a mistake born of naïve credulity. Congress, Schmitt tells us, cannot rely on the administrative state to flesh out its open-textured enactments.[ix] But the Report is totally blind to the equally apparent risk of approaching the federal judiciary with a naïve credulity. When the Roberts Court ended Chevron deference, it arrogated power back onto the federal judiciary. This “judicial self-aggrandizement” comes at Congress’s expense.[x]

When Congress built the modern American state, it conscientiously pushed back against judicial self-aggrandizement. This pushback forms a key narrative thread in my Resurrecting piece. Schmitt’s predecessors on Capitol Hill took seriously one of the main talking points of the contemporary conservative legal movement: that the Founders established three coequal branches set against each other. An unstated premise throughout Schmitt’s Report is that the federal judiciary is committed to safeguarding the best interests of its interbranch rivals. Schmitt’s faith is badly misplaced; there is a voluminous literature discussing the courts’ juristocratic aspirations.[xi] I totally understand why a legislator would choose to eye administrators with caution.[xii] But a blind faith in courts is calamitous for any legislator. With respect to administrators, Congress has tremendous tools at its disposal to bring an agency to heel. But because of the longstanding norms around the separation between law and politics, a senator has a more constrained relationship with the judiciary.

A second observation is closely related: a document this unserious is an indictment against Congress’s capacity for internal legal deliberation. I have spent the last several years unpacking some of the most important pieces of legal deliberation in the history of Congress: the opinions, memoranda, and briefs of the Offices of Legislative Counsel for the House and the Senate. From 1919 to 1969, these Offices laid the groundwork for the New Deal order and aggrandized legislative power with a novel procedure for resolving constitutional questions. Reading this Report, I’m struck by just how far we’ve fallen.

The Senate is in especially dire straights. As a result of contingent historical events, the Senate’s legal talents are decentralized amongst counsel who owe their allegiance to individual senators. Although the Senate Office of Legislative Counsel still exists, the real movers and shakers on legal deliberation are the bands of feudal legal chieftans who jealously guard their stranglehold on the Senate’s thinking. This is a sorry state of affairs. For a brief spell, from 1919 to 1969, legal talent in the Senate was much more concentrated. Individual lawyers in the Senate Office of Legislative Counsel simultaneously drafted statutes and resolved senators’ legal questions. This centralization allowed all of the Senate’s most important lawyers to be organized under the banner of an office obsessed with safeguarding Article I. Today, there are no lawyers who speak authoritatively (internally at least) for the Senate and its interests.

These problems are deeply intertwined. The Senate’s lack of a coherent constitutional politics flows directly from its feckless strategy for organizing its legal talent. The petty bands of Senate counsel have no overarching allegiance to the institution. In the absence of any meaningful procedure for resolving legal questions authoritatively for the entire chamber, the Senate’s constitutional politics have become more incoherent.

I will have more to say on this in my own work. But for now, I’ll end with a note of optimism. This Report is the sole work product of Senator Schmitt. He speaks for himself only. The fact that Schmitt stands alone is cause for optimism; I would speculate that his colleagues reached a similar, skeptical reading of the Report as the one outlined here.

Beau J. Baumann is a Ph.D. candidate at Yale Law School.

---

[i] This renaissance includes Josh Chafetz’s Congress’s Constitution (2017), Nikolas Bowie & Daphna Nena, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020 (2022), and Maggie Blackhawk, Legislative Constitutionalism and Federal Indian Law, 132 Yale L.J. 1970 (2023). A quirk of this literature is that the authors are not always self-consciously engaging with legislative constitutionalism as a subject. For example, Chafetz’s book does not sell itself as a work on legislative constitutionalism, even though it is maybe the most important book-length treatment of the subject in the American legal academy.

[ii] 134 Yale L.J. 2249 (2025).

[iii] 272 U.S. 52 (1926).

[iv] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

[v] Report at 6.

[vi] Report at 21.

[vii] Report at 21.

[viii] See Report at 5 (“In the first half of the 20^th Century, Congress established institutions aimed at professionalizing the bureaucracy, centralizing power, and transforming our democracy into a technocracy, culminating in the 1947 passage of the Administrative Procedure Act.”).

[ix] Report at 3.

[x] For a definition of judicial self-aggrandizement, see Allen C. Sumrall & Beau J. Baumann, Clarifying Judicial Aggrandizement, 172 U. Penn. L. Rev. Online 24, 38 (2023) (“Judicial aggrandizement is the successful deployment of ideas and norms that reinforce the judiciary’s role as the final arbiter of political disputes at the expense of other governing institutions. Judicial self-aggrandizement refer to when jurists, rather than other actors, deploy the same rhetoric.”). This literature is led by Josh Chafetz, who has explicated the concept across several law review articles. See generally Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L.J. 635 (2023); Josh Chafetz, Nixon/Trump: Strategies of Judicial Aggrandizement, 110 Geo. L.J. 125 (2021).

[xi] See, e.g., Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97 (2022).

[xii] See Report at 20 (“In the Long Term, we must rethink the underlying thesis and assumption of the Administrative State and the progressive era: that only unaccountable bureaucratic elites possess the skill and expertise to create the rules of the game for a modern state.”). I don’t think we really would agree on the details, but Schmitt is right that the basic assumption of the Progressive Era is no longer tenable. Progressive Era political thought was premised on a tight distinction between politics and administration that no one really believes in today. That dichotomy was held together by an ambient belief in expertise-based authority that was on the decline long before I was even born. Congress will have to rethink the basic contours of administrative legitimacy. That much is true. But nothing in the Report suggests that Schmitt has a coherent idea of how to put Humpty Dumpty back together again.