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The Supreme Court May Soon Shut Down the Regulatory State. Let’s Use It While We Still Can.

Progressive Democrats are right to call for more aggressive use of regulatory powers. But like the Democrats’ congressional majorities, these may not last forever.

Justin Sullivan/Getty Images

The Congressional Progressive Caucus has submitted to the Biden White House a list of proposed recommendations for executive action. This has prompted a debate about whether it’s best, in the limited time between now and the midterms, to continue to press for legislation or to bypass Congress and enact desired policies administratively. The correct answer is: “Yes.”

My New Republic colleague Grace Segers makes an eloquent and persuasive case that administrative actions are less durable policy tools than statutes. Anything one president does can be reversed by another president. Executive actions can get tied up in the courts. And the Supreme Court, six of whose nine members are conservative, won’t be sympathetic. The result is a “doom loop,” in which the Biden administration bypasses Congress only to be told by the judiciary that such decisions more properly reside with Congress.

I agree that go-it-alone presidential policies are more vulnerable to judicial reversal than legislation. Let the efforts to legislate on climate change and health care and immigration reform continue. But there’s no reason the executive branch shouldn’t simultaneously pursue parallel goals on its own. Indeed, it would be unwise not to, given the likelihood of a future regulatory drought.

When we talk about “executive action,” we’re really talking usually about regulation. Most executive orders, if they’re anything more than crowd-pleasing gestures (we had a lot of those under Donald Trump), can’t take effect until some agency issues a regulation. Some of the executive actions that the Progressive Caucus calls for in its document are already moving through the regulatory process. For example, the caucus called for reversing a Reagan-era rule that lowballed calculations of prevailing wages paid to workers on federal construction projects. As it happens, six days before the caucus document was released, the Labor Department proposed a rule doing exactly that.

Republicans have worked for decades to delegitimize the regulatory process as a usurpation of congressional power, and at this point even many Democrats are afraid to defend it. The Progressive Caucus showed guts in embracing the regulatory process as a legitimate policy tool. Still, I worry that it shares with conservatives a popular misconception of how regulation works: Some random bureaucrat decides to limit emissions of Pollutant X, et voilà!

Nothing could be further from the truth. Most obviously, a regulation must be issued to enforce a specific statute passed by Congress; if the statute says you may limit pollutants that do this-and-such, and Pollutant X doesn’t do this-and-such, then the regulator can’t limit it.

It doesn’t stop there. To issue a regulation, a government agency must follow a number of complicated steps established under the 1946 Administrative Procedure Act. The agency must first issue the regulation in proposed form and invite public comment. If it doesn’t make certain requested changes and the request (typically from a lobby group) is “significant,” the agency, when it issues the final rule (typically one year later), is required by law to explain publicly why it did not make these changes.

Before the final rule is issued, it must, under a series of executive orders issued under President Ronald Reagan, undergo cost-benefit analysis. That’s assuming it’s a “major” rule. A handy practical definition of a “major” rule is any regulation that business kicks up a fuss about. Our regulation must also be reviewed by the White House Office of Information and Regulatory Affairs, which even under Democratic presidents is highly sensitive to any industry complaints that the regulation is too burdensome. It’s at OIRA that political contributions to presidential candidates really pay off. (For a more detailed, less jaded description of this process, click here.) Even after all that, a judge can, as Segers notes, block the rule’s implementation.

Even before a judge weighs in, it is, by design, very, very difficult to get a regulation out the door. It’s especially hard for certain agencies. The average length of time it takes the Occupational Health and Safety Administration, for instance, to issue a regulation was found in 2012 to be seven years, and there’s no reason to think that’s gotten any faster since then. (The Biden administration’s emergency temporary OSHA rule requiring businesses employing more than 100 people to demand proof of Covid-19 vaccination or subject workers to weekly testing at their own expense moved much faster than that only because it was an emergency rule. The Supreme Court threw it out in January.)

The upside to these hurdles is that the Trump administration, when it tried indiscriminately to throw out as many regulations as possible, lacked the patience to clear these hurdles, and as a consequence it found many of its anti-regulatory actions reversed in court. Six months before Trump left office, Bethany Davis Noll of New York University’s Institute for Public Integrity told the Associated Press that Trump’s administration had won only 15 percent of court challenges to his agencies’ attempted regulatory changes. The norm for other presidents, she said, was 70 percent.

Despite all these existing hurdles, conservative Republicans have for years argued that the regulatory process remains unaccountable and illegitimate. The focus of their ire is the 1984 Supreme Court decision in Chevron v. Natural Resources Defense Council, which gave regulatory agencies latitude to interpret the statutes they enforce through regulation so long as that interpretation is demonstrably rational and reasonable. This is called the doctrine of “Chevron deference,” and conservative Republicans have sought for years to kill it so they can make an already difficult regulatory process virtually impossible. For the business lobby, killing Chevron deference is the big brass ring.

Chevron opponents aren’t shy, in the current climate, about presenting their efforts to overturn it as a strategy to shut down the regulatory state. That’s outrageous. Even more outrageous, they may soon win. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch are all itching to overturn Chevron; Justice Amy Coney Barrett likely is, too, and Justice Brett Kavanaugh and Chief Justice John Roberts desire at the very least to narrow Chevron. Never mind that when Chevron was handed down in 1984, it was considered a conservative decision that would check administrative power. The political and judicial spectrums have since shifted so far to the right that Chevron is today considered a bleeding-heart liberal decision, simply because it allows regulatory agencies to exist at all.

If the Chevron deference doctrine goes, conservatives may crow that at long last they have repealed the New Deal. But that would be modest, because judges have deferred to government agencies much further back than the 1930s; by one reckoning, something very much like Chevron deference existed as early as 1827. That would mean regulatory deference predates regulation itself, given that the very first regulatory agency is identified by Thomas McCraw, in his authoritative 1984 history, Prophets of Regulation, as the Rhode Island Commission of 1839. This was, McCraw writes, “a modest [state] agency that encouraged rival [railroad] corporations to work together on joint schedules and rates.” There isn’t much point in having a regulatory agency unless courts are going to defer to it.

While the Chevron deference doctrine is still available, let’s don’t let it go to waste. Democrats should keep trying to achieve their policy goals through both legislation and regulation. Both approaches have deep historical roots. Neither approach is quick or easy. And the Democrats’ congressional majorities aren’t the only tool that may soon go poof. Gather ye regulations while ye may.