On Friday, the Supreme Court overturned the 1984 decision Chevron v. NRDC, a critical element in American regulatory policy. Under Chevron, courts deferred to federal agency interpretations of statutes unless the statutes themselves directly addressed policy questions and as long as the agency interpretations were reasonable.
The original Chevron decision allowed a regulation passed by the Environmental Protection Agency under President Ronald Reagan to remain in place. Initially, this decision was welcomed by supporters of deregulation because it provided industry with more flexibility in complying with EPA rules. Over time, however, it became a primary target for opponents of regulation due to its endorsement of deference to agencies. Courts regularly cited Chevron in support of regulatory efforts by subsequent administrations.
In the 40 years since Chevron, regulation has become an increasingly prominent policymaking tool. This trend began in the 1970s and has been particularly evident in implementing progressive policies aimed at combating pollution and climate change, protecting workers from workplace hazards, and safeguarding the financial system. It has also advanced conservative priorities such as restricting immigration and enhancing homeland security.
The result of this regulatory boom includes cleaner air and water and safer workplaces among other benefits. While regulations have imposed significant costs on the economy, most studies indicate that their benefits have significantly outweighed these costs.
Despite these gains, American trust in government has declined over the same period. It might be tempting to argue that growing regulation has contributed to this negative perception of government; however, data suggests that this relationship is complex. Agency actions may be one aspect of government that people still appreciate.
Congressional approval ratings have historically been low — between 30% and 50% when trust in government was higher — but they are now at a dismal 16%. Meanwhile, current and previous presidents have experienced historically low approval ratings as well. In contrast, Americans hold favorable views toward most federal agencies (with exceptions like the Internal Revenue Service).
The rationale behind repealing Chevron deference is that it will compel Congress to pass more specific laws addressing public policy concerns by making it harder for agencies to regulate. There are two significant issues with this logic: first, it would shift policymaking from parts of government people trust to those they distrust; second, there is no reason to believe Congress will become more responsible as a result.
Congressional dysfunction is apparent, particularly highlighted by battles over Republican leadership for Speaker of the House. The budgetary process — arguably Congress’s most crucial function — is widely considered broken across ideological lines. Additionally, congressional capacity remains problematic.
Congress delegates decision-making to agencies partly due to its lack of expertise necessary for such decisions. Population growth has increased each member's constituency from 210,000 citizens in the early 20th century to 762,000 today.
Expanding both the House of Representatives and resources available to Congress could help but would likely not close the expertise gap between national legislature and executive branch agencies or reduce congressional dysfunction or change incentives for delegating politically sensitive decisions.
While theoretically restricting agencies' policymaking abilities could lead to a democratically responsive Congress assuming those responsibilities thereby restoring public trust in policymaking processes; practically speaking it seems more probable that pressing public problems will take longer or remain unresolved thus further eroding faith in government following this Supreme Court decision.
Stuart Shapiro is Dean of Bloustein School Planning Public Policy Rutgers University member Scholars Strategy Network Follow him Twitter @shapiro_stuart
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