The Supreme Court recently ended President Biden’s student loan forgiveness program, ruling that federal law does not allow the Education Secretary to “rewrite the statute from the ground up.” This decision, together with a forthcoming case that may further limit the executive branch’s regulatory powers, may change the way the federal government regulates and shift greater power and work to the legislative branch. Whether Congress is ready or not, more responsibility for overseeing regulations and establishing rules through legislation may soon be in their hands.

In Biden v. Nebraska, the Supreme Court ruled in a 6-3 decision that the Biden administration overstepped its legal authority with its plans to cancel $430 billion in student loan principal. Seeing the plan as a clear, nonpartisan case of executive overreach, the majority’s opinion cited former Speaker Nancy Pelosi’s own reasoning expressed in 2021: “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”

Judicial pushback against executive overreach could continue with another case that will be argued this fall, Loper Bright Enterprises v. Raimondo. Legal experts anticipate that this case may lead the court to reconsider its practice of deferring to federal agencies when they broadly interpret statutes to issue regulations.

Loper Bright will consider a fishing company’s challenge to a rule issued by the National Marine Fisheries Service requiring the company to host and pay for federal regulatory compliance observers on the company’s own watercraft. The petitioners are challenging the agency’s authority to require this and the legal doctrine known as Chevron deference. 

In the landmark 1984 case Chevron U.S.A., Inc. v. Natural Resource Defense Council decision, the Supreme Court established a legal test to determine when courts should defer to federal agencies when they issue regulations interpreting a statute. The test involves two steps: first, examining whether Congress has addressed the specific policy being addressed and, if not, whether the agency’s action is reasonable if the statute is ambiguous. Because most statutes are ambiguous to some degree, the Court’s ruling effectively established judicial deference to federal agencies regarding their decisions to issue regulations.

While the case is pending, Congress should anticipate a further narrowing of the executive branch’s authority to regulate and issue policy guidance. If that does happen, greater responsibility for policymaking will soon fall to the legislative branch. Members of Congress, the executive branch, and other interested stakeholders will need to pass laws with more explicit language that will not require the same degree of agency interpretation. 

Is Congress ready for this potentially expanded responsibility? 

In recent decades, Congress has largely ceded responsibility for overseeing federal regulations and the administrative state. For example, Congress has become accustomed to the practice of passing vague laws that depend on the executive branch to enact regulations that ultimately set policy. 

During this period, Congress has provided itself with limited resources to inform its legislative efforts compared to federal agencies’ vast capacity for issuing regulations and administrative actions. For example, the total number of congressional staff has declined by about 1,400 since the mid-2000s, or roughly nine percent. Moreover, Congress has no legislative branch answer to the Office of Information and Regulatory Affairs, which conducts regulatory analysis for the executive branch and coordinates executive agencies’ regulatory activity. 

During the 118th Congress, leaders and appropriators have an opportunity to increase the legislative branch’s ability to oversee regulations and pass laws that do not defer unnecessarily to the executive branch. For starters, Congress could establish new offices within the legislative branch, such as a mission team within the Government Accountability Office, to provide independent regulatory analysis and reviews on behalf of lawmakers. Congress could also boost the legislative branch’s annual appropriations, particularly for the hiring and retention of committee staff who will be needed to assist members in writing more detailed laws that provide clear statutory authority and guidance to the executive branch. 

Regardless of the outcome of the upcoming Loper Bright case, Congress should take steps to improve its capacity to oversee federal regulations and the administrative state. As the people’s elected representatives, members of Congress, rather than unelected bureaucrats and civil servants, should hold the power to pass laws and make rules that affect the way that American people live. Rebuilding its capacity to oversee regulations should be a top priority.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.