The House Committee on Administration held a regulatory reform hearing today titled “Congress in a Post-Chevron World.” The title refers to the expected major changes in the behavior of the administrative state following the June 28, 2024 decision in Roper Bright Enterprises v. Raimondo, which marks the end of the Chevron deference doctrine.
Established by the 1984 decision Chevron USA, Inc. v. Natural Resources Defense Council, Inc., Chevron deference required courts to defer to federal agencies’ reasonable interpretations of ambiguous statutes. The majority Loper opinion concluded that such deference compromises the separation of powers and improperly expands executive authority while weakening judicial oversight.
I had the opportunity to testify and, as always, present Fred Smith’s entirely unique and thorough argument for total regulatory liberalization and limiting federal power itself. Pasted below is a slightly amended version of my oral remarks. A link to my full written testimony can be found on the Committee hearing landing page.
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Chairman Steele, Ranking Member Morell, and members of the committee, thank you for the opportunity to testify about Congress’ role in a post-Chevron world. My name is Wayne Crews, and I am the Fred L. Smith Jr. Fellow in Regulatory Studies at the Competitive Enterprise Institute.
Federal spending gets all the attention, but the hidden tax of regulations touches every aspect of our lives. The Code of Federal Regulations is over 188,000 pages long.
In 2023 alone, the agency issued 3,000 rules but only 65 laws were passed by Congress. The costs of an independent agency gaining primacy on government-wide efforts, particularly on the climate crisis, net-zero energy, AI, fairness, and competition policy, remain uncounted.
Congress must take back lawmaking power from the executive, but first and foremost it must curb its own interventionist desires.
My written remarks contain many elements of this, but they all call for Congress, and this Committee in particular, to mobilize appropriate resources and personnel to implement rigorous regulatory oversight and disclosure to replace the weak White House approach.
The end of deference to Chevron represents an overdue reaffirmation of separation of powers and a check on excessive delegation of authority. But it is important to be aware of the extent to which regulatory advocates will mobilize against it. Regulatory powers expanded significantly under Chevron’s rule, but most of the available administrative machinery was built before and remains in place.
Especially since COVID-19, the issue is not agency interpretation of the vague statute in Roper but agency implementation of the clear statute.The Biden-era Inflation, Infrastructure, and CHIPS Act is highly prescriptive even before an administrator picked up a pencil.
So the workaround available to regulation advocates in a post-Chevron world is this:
First, strengthen coordination around strong, clear, and purpose-driven legislation like the CARES Act and the TikTok Ban Act. Second, enticing the private sector with subsidies, grants, and partnerships before succumbing to interventionist legislation and cartelization. Third, increasing federal influence by pumping hundreds of billions of dollars into procurement and contracting. And fourth, other regulatory dark matter, such as replacing notice-and-comment rules with guidance documents.
In preparation, an outstanding but largely ignored new GAO report contains oversight recommendations for this committee to heed, even going so far as to establish a Congressional Office of Regulatory Analysis. If implemented properly, CORA would challenge flawed assumptions about agency expertise and avoid the false presumption that market failures outweigh political failures.
Other steps needed to strengthen the GAO include reversing President Biden’s rewrite of OMB Circular A-4 and ensuring enforcement of the Regulatory Reform Act that is already in place but has been ignored.
Secondly, there will be the pursuit of some new legislative reforms.
First, pass the REINS Act, ideally under its predecessor’s excellent name, the Congressional Accountability Act. Second, take up the Democrats’ excellent regulatory budget proposal. Third, create a bipartisan regulatory reduction committee. Fourth, reinstate the “in, out” policy and repeal regulations. Fifth, and most important, reform and even ban agency use of subregulatory guidance documents. Finally, and most easily implemented, produce an annual regulatory report in the style of a federal budget history table.
A generation ago, a series of regulatory reforms that benefited state and local governments, small businesses, and consumers were passed with overwhelming bipartisan support.
But as CEI founder Fred Smith puts it, in today’s mix of overspending and regulation, where government steers and markets just row, the costs of intervention grow even without written notice-and-comment rules.
While correcting excessive delegation is crucial, the real challenge is Parliament’s own disregard for enumerated powers. The response requires decentralization, restoring federalism, and ending crisis abuses such as those seen with COVID-19 and the financial crisis.
By strengthening resources and promoting reform, this committee can play a key role in limiting excessive regulation and growing jobs and wealth. We don’t need to tell the grass to grow, but we do need to remove the stones from the grass. Thank you again for inviting me to testify, and I look forward to taking your questions.
