Congress in post Chevron world - Prof. Josh Chafetz Testimony

 Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently. Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.

John Roberts for the majority in Loper Bright v.  Raimondo (2024)

“Congress in a Post-Chevron World”

Hearing Before the Committee on House Administration

Tuesday, July 23, 2024, 10:15 AM

Testimony of Josh Chafetz

Georgetown University Law Center

Agnes Williams Sesquicentennial Professor of Law and Politics

 

Chairman Steil, Ranking Member Morelle, and Distinguished Members of the Committee:

Thank you for the opportunity to testify today regarding the vitally important topic of

congressional responses to the Supreme Court’s recent Loper Bright decision. My name is Josh

Chafetz, and I am the Agnes Williams Sesquicentennial Professor of Law and Politics at

Georgetown University Law Center and an Affiliated Faculty Member of both the Government

Department and the McCourt School of Public Policy at Georgetown. My research and teaching

focus on legislative procedure, the separation of powers, and the constitutional structuring of

American national politics.

The Loper Bright decision purports to empower Congress, but in fact partakes of a larger program of judicial self-aggrandizement at the expense of both Congress and the agencies. Potential congressional responses include both changes to statutory drafting and increases in congressional capacity. These responses would be salutary, but they are not sufficient. At the end of the day, the Supreme Court’s anti-administrativist bent is a major obstacle to public policymaking, and it will remain so until the Court either is reined in or changes its tune.