Senate Democrats Offer Bill to Restore Chevron Doctrine

WASHINGTON, July 27, 2024 – A group of progressive Senate Democrats on Wednesday introduced legislation designed to restore a key judicial presumption in favor of federal agencies that was taken away by the Supreme Court in June.

The Senate bill, called the Stop Corporate Capture Act, would revive the Chevron Doctrine, a four-decade-old judicial standard that required federal courts to defer to an agency's reasonable interpretation of ambiguous laws passed by Congress. Critics said Chevron deference unfairly helped agencies, burdened plaintiffs, and handcuffed judges.

Last month, the Supreme Court abolished Chevron deference in Loper Bright Enterprises v. Raimondo., with the court saying federal courts would “decide legal questions by applying their own judgment” and courts would resolve ‘all relevant questions of law’ in cases involving disputes over regulations adopted by the Federal Communications Commission and other federal agencies.

"The Supreme Court’s overturning of Chevron undermines our government’s ability to promote worker safety, ensure clean air and water, and protect consumers," said lead sponsor Sen. Elizabeth Warren, D-Mass., in a July 23 press release. 

Senate co-sponsors included: Richard Blumenthal, D-Conn., Cory Booker D-N.J., Mazie Hirono, D-Hawaii, Ben Ray Luján, D-N.M., Edward Markey, D-Mass., Jeff Merkley, D-Ore., Bernie Sanders, I-Vt., Chris Van Hollen, D-Md., Peter Welch, D-Vt., and Ron Wyden, D-Ore.

Warren's bill did not reference Chevron deference or Loper by name. It would protect Chevron deference by amending the Administrative Procedure Act of 1946, on which the Supreme Court relied to invalidate Chevron deference.

If her bill became law, the Supreme Court might have to decide the constitutionality of Congress forcing courts to defer to agencies even if courts find that the agencies have failed to advance the best reading of the law.

In his Loper concurrence, Justice Clarence Thomas said Chevron deference was unconstitutional because it violated the separation of powers.

“Chevron deference compromises this separation of powers in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits,” Thomas said.

Attorney Chip Yorkgitis, a partner at Kelley Drye, said a constitutional struggle between Congress and the Supreme Court could lie ahead.

"It's theoretically possible - I don't know how likely it is - that Congress could seek to amend the [Administrative Procedure Act] in order to give deference back to the agencies," Yorkgitis said on a July 18 webcast hosted by INCOMPAS. "If Congress did move in that direction to amend the APA, then I believe this question of constitutionality would probably come to the fore.”

Without saying so in the press release, Warren's bill said in a preamble of findings that it would weaken the Supreme Court's Major Questions Doctrine, which has barred federal agencies from resolving questions of vast economic and political significance without clear statutory authorization from Congress.

Warren's bill would prevent stripping a regulation of Chevron deference because it "will have broad economic, political, or social significance ..."

The bill would also amend the Congressional Review Act, a 1996 law that allowed Congress to void agency regulations. Warren's bill would establish procedures to revive nullified rules in the first year after passage of her bill and beyond.

In 2017, Congress used the CRA to block Internet privacy rules adopted by the FCC under Democratic Chairman Tom Wheeler in 2016.

Anticipating the result in Loper, Rep. Pramila Jayapal, D-Wash., introduced her version of the Stop Corporate Capture Act (H.R. 1507) in the House in 2021.