When the Supreme Court’s draft decision overturning Roe v. Wade leaked to the press in early May, liberal Americans reeled—then vaulted into action. Thousands of grassroots activists rallied, protested, and funneled tens of millions of dollars to nonprofits fighting back. In state capitals around the country, Democratic legislators and governors denounced the decision and, in Washington, congressional Democrats forced an ill-fated vote to codify Roe.
Yet just a few months earlier, the Court took an ax to a protection that is at least as vital to the health, safety, and freedom of ordinary Americans, and most liberals hardly even noticed. In National Federation of Independent Business v. Occupational Safety and Health Administration (OSHA), six conservative justices overruled the Biden administration’s emergency OSHA mandate that large employers must require their employees to be either vaccinated against COVID-19 or tested weekly for the virus. The majority reasoned that even though Congress, when it created OSHA 52 years ago, gave the agency the power to impose emergency measures to protect employees from the “grave danger” of exposure to “substances or agents determined to be toxic or physically harmful,” the statute specifies “workplace” hazards, not broad public health threats like a virus. Therefore, the majority concluded, OSHA had exceeded its authority.
The ruling did more than halt a specific administration effort to stop the spread of the pandemic. More significantly, observed Linda Greenhouse in The New York Times, it was a “functional overturning” of a bedrock court decision that has long protected the power of federal agencies to issue regulations.
In 1984, the Supreme Court, in Chevron U.S.A. v. Natural Resources Defense Council, established that when a statute is ambiguous, judges should defer to an agency’s reasonable interpretation of its authority. “Judges are not experts in the field, and are not part of either political branch of the Government,” Justice John Paul Stevens wrote in the opinion.
While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
Stevens’s opinion, signed by a unanimous Supreme Court, defined a standard, known as “Chevron deference,” that both liberal and conservative judges hewed to for decades to resolve cases involving regulatory agency interpretations of unclear statutes. (Even before the Stevens decision, courts generally—if not uniformly—deferred to agencies on many policy questions in order to make government function, argue scholars like the University of Michigan’s Bill Novak and Columbia Law School’s Gillian Metzger.) In recent years, however, conservatives gained control of federal courts and began wielding that power to advance their ideological agenda. Although Chevron cuts both ways, depending on which party is in power, it has become a target for conservatives eager to chip away at regulations.
Though the January OSHA decision doesn’t mention Chevron, the Court’s liberals understood the stakes. In their dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan ridiculed the majority’s contention that threats both in and out of the workplace are beyond OSHA’s purview, by noting that the agency already regulates against many such hazards—like fire, faulty wiring, and unsafe drinking water. Then, echoing Stevens in Chevron, they wrote:
Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?
Despite significant media attention, the OSHA decision met with little outcry from progressive groups or voters. But like Roe, eviscerating Chevron will touch every American’s life. Allowing judges to overturn the actions of regulatory agencies as they see fit will make it harder to enforce laws protecting clean air and potable water; it will limit agencies’ ability to study drugs’ efficacy and promulgate food safety rules; it will hamper consumer protections from predatory lenders and fraudulent marketing. And, as Stevens wrote in Chevron and the current liberal minority highlighted in its OSHA dissent, it is ultimately undemocratic because, unlike Congress or the president, federal judges serve for life, insulated from the pressures of elections.
“Every corner of the federal government is going to be exposed to a broader shift to how courts treat decisions of administrative agencies,” Daniel Walters, assistant professor at Penn State Law, says. “There’s not really any issue that doesn’t at some point go through agency decision-making that’s then subject to review in courts.”
The OSHA decision wasn’t the first conservative court attack on Chevron, nor will it be the last. In the summer of 2021, the Supreme Court, by a similar 6–3 majority, overturned a Centers for Disease Control and Prevention eviction moratorium on the grounds that Congress had not given the CDC that specific authority. This spring, the Fifth Circuit ruled against the Securities and Exchange Commission’s authority to issue civil financial penalties via administrative enforcement, a decision that threatens the similar enforcement authorities of OSHA and the EPA.
These attacks on Chevron represent the culmination of a decades-long effort by conservatives—with the help, alas, of some liberals—to achieve, in the words of Trump strategist Steve Bannon, the “deconstruction of the administrative state.” Since at least the Reagan years, conservatives have executed a strategy to delegitimize and derail the system by which federal agencies produce rules and regulations. They have built an archipelago of industry-funded think tanks and university-affiliated institutes to cast doubt on individual regulations and the rulemaking apparatus in general. When in power, they have slashed funding and staff to agencies and wielded cost-benefit analysis in ways that emphasize the supposed costs of regulations and minimize the possible benefits. And Republicans have, for decades, prioritized supplying a steady stream of anti-regulatory judges to the federal bench.
Liberals have fought back, but mostly tactically, in issue-specific ways—environmental groups mobilizing to defend threatened air quality regulations, or unions to preserve workplace safety standards. They’ve done little to counter the conservatives’ broader anti-regulatory rhetoric and strategy, and, not coincidently, progressive foundations and big-money individual donors have almost completely ignored the issue. “The left has basically ceded the whole debate on regulatory process, and into the vacuum have swept conservatives,” James Goodwin, senior policy analyst at the Center for Progressive Reform, says.
Cumulatively, the ongoing conservative attacks on federal regulation have succeeded in making the regulatory process slower and more onerous. Overturning Chevron deference, however, has the potential to shut down the process for whole realms of regulation.
Reversing these anti-regulatory gains will require years of sustained focus and a multipronged strategy. Fortunately, that effort now has a champion in Congress: Washington Democratic Representative Pramila Jayapal. She is the author of a bill, the Stop Corporate Capture Act, cosponsored by Rhode Island Democratic Representative David Cicilline, that would shore up the agency rulemaking process and codify Chevron deference. The bill is scheduled for debate this summer and has a reasonable chance of passing in the House. But while its chances in the Senate are slim, it provides an opportunity for liberals and progressives—and perhaps some sympathetic Republicans—to recognize the challenge for what it is: a war over the future of our government and democracy.
Jayapal’s bill would improve federal regulatory procedures by making them more democratic and strengthening their integrity. It offers a counterweight to the decades of conservatives’ successful efforts entrenching the influence of corporations and their lobbyists.
First, it would require more policing of the studies submitted during the “public comment” period, when agencies invite outside groups and individuals to weigh in on proposed regulations. These studies, often presented as independent scientific assessments, are relied on by agency personnel as they craft regulatory language, and by the White House Office of Information and Regulatory Affairs (OIRA), which scrutinizes that language before it is finalized. In many cases, however, the research has been secretly commissioned and paid for by the industries the regulation would impact. Jayapal’s bill would require disclosure of those financial connections and fine companies found to have submitted “materially false, fictitious, or fraudulent” information.
Second, the legislation would bring more balance to cost-benefit analysis. Rule writers at the agencies and OIRA would have to give more weight to the potential benefits of a
regulation—like mitigating climate change or encouraging innovative new industries—that may be harder to quantify than the costs but are no less real.
Third, it would impose deadlines on a regulatory process that over the decades has become slower and slower. For instance, the average time it took OIRA to review a proposed regulation grew from 50 to 140 days from 1994 to 2013. Under Jayapal’s bill, OIRA would have 90 days to render its judgment or step out of the way.
Fourth, it would empower citizens to exercise oversight of the process and its enforcement through a new agency, the Office of the Public Advocate. The agency (proposed years ago by Ralph Nader) would be able to join “citizen suits” to hasten rulemaking, demand accountability when there’s lax enforcement of existing rules, urge agencies to make new rules, and take affirmative steps to include groups underrepresented in the regulatory process.
Finally, and perhaps most importantly, Jayapal’s bill would make Chevron the law of the land. Doing so won’t address all the ways the courts are attempting to wrest power from the agencies, explains Jonathan Adler, a law professor at Case Western Reserve University. But it would reflect, he says, “this kind of general intuition about what Congress would have wanted” in any given case. But as a practical matter, argues Amit Narang, regulatory policy advocate for Public Citizen, the OSHA case would have turned out differently had Jayapal’s bill been law. “All of this goes back to the degree to which the Court gets to police in any kind of rigorous way how much or how little Congress can ask agencies to do,” adds Peter Shane, law professor at Ohio State University. “Congress would always be better off in telling the Court, particularly with regard to these separation of powers things, ‘You’re not the boss of us.’ ”
New polling from Data for Progress shows that the bill’s concepts are popular. For example, the majority of Republicans and Democrats favored laws requiring conflict of interest disclosures and preventing corporations from knowingly submitting false information during the rulemaking process.
Despite the bill’s promise, however, the politics surrounding it are discouraging. It may pass in the House, but it’s unlikely to survive the Senate. There, it would have to win over the chair of the Senate Subcommittee on Government Operations and Border Management, Arizona Senator Kyrsten Sinema, who is cosponsoring a bill that would put additional burdens on agencies to defend their regulations. The two pieces of legislation, however, do have some areas of overlap, such as encouraging more public participation in the rulemaking process. Moreover, Sally Katzen, a New York University law professor and veteran regulator in the Clinton administration who has many practical concerns about Jayapal’s bill, nevertheless thinks that its conflict of interest provisions could possibly win bipartisan support. Still, even if Jayapal and Sinema could find common ground on a decent compromise measure, the chance of getting the votes of the 10 or more Republican senators that would be needed to overcome a filibuster would be vanishingly small.
But if the bill’s short-term prospects are slim, a fight over it could play a key role in the long-term effort that is needed to reverse the conservative war on the administrative state. If that prospect seems unlikely, consider what is happening in the related area of antitrust policy.
As readers of this magazine know, 40 years ago the Reagan administration, under the sway of conservative thinkers like Robert Bork, effectively stopped enforcing the nation’s anti-monopoly laws. The next five administrations mostly followed suit. But in just the past half decade, as the deleterious effects of increased corporate concentration on jobs, wages, entrepreneurship, and, now, inflation (see Phillip Longman, “It’s the Monopoly, Stupid,”) became impossible to ignore, conventional wisdom in Washington has swung almost 180 degrees in the other direction. The shift began on the left among policy intellectuals (many of them writing in the Washington Monthly), was elevated by a few progressive lawmakers like Elizabeth Warren, and has been most vigorously championed by the Biden administration in the form of a sweeping set of executive orders. Plenty of Republicans, however, have also gotten religion, and several bipartisan anti-monopoly bills are moving in Congress.
It is not hard to imagine something similar happening in the battle over regulation. As with anti-monopoly, the movement would almost certainly need to begin on the left. Perhaps Jayapal’s bill is evidence that in some small way it already has. But for anything more to happen, rank-and-file liberals broadly must be made to understand the immediate danger that the conservative assault on the administrative state means for all they hold dear. Without well-funded agencies, competent civil servants, and the authority to enforce the law free of sabotage by nihilistically conservative courts, progressives won’t even be able to defend existing programs, much less implement future ones like universal health care.
Liberals also need to reexamine their own ideas about the purpose and nature of regulations—and the way those ideas give credibility to false conservative narratives. For instance, in debates over regulation, conservatives inevitably stress the costs to jobs and growth. Liberals lean in to the need to protect against harms—to workers, to consumers, and the environment. In so doing, liberals implicitly—and sometimes explicitly—concede that regulations hurt the economy. But as this magazine has repeatedly reported, that is false. Studies have failed to find evidence that federal regulations overall have any measurable negative effect on jobs, growth, or economic dynamism. To the contrary, plenty of evidence demonstrates that regulations are critical to supporting new industries and that mandated standards contribute to lower costs and more innovative products.
Critically, Democrats fail to counter the simplistic narrative that more regulation—or any at all—is a loss of freedom. The truth, however, is usually the opposite. “When the state sets minimum standards of safety and transparency for the manufacture and sale of consumer products,” Harvard’s Daniel Carpenter wrote in these pages, “it affords me the freedom to buy a toaster oven without first hiring a lawyer to read the fine print and an electrician to look over the specs to make sure it won’t catch on fire.”
Getting the left to think straight about regulations and to make strengthening the regulatory system a progressive priority will be tough enough. Bringing the right on board may seem impossible, given how central deregulation has been for decades to the conservative movement.
Yet a lot of what we thought were bedrock conservative economic views are crumbling before our eyes. Attitudes toward monopoly is one. Free trade is another. The Republican Party’s white working-class base turns out to be far less enamored of large corporations than the GOP establishment. Which explains why that establishment has suddenly started attacking “woke” corporations like Disney and why House Minority Leader Kevin McCarthy downgraded the status of the U.S. Chamber of Commerce, once a pillar of GOP power in Washington. “I didn’t even know the Chamber was around anymore,” he said.
With the right this much in flux, it is possible that some entrepreneurial conservatives may break ranks with the GOP’s deregulatory traditions and get rewarded with cheers on the stump and invitations to appear on Tucker Carlson Tonight. By the time that happens, let’s hope liberals have gotten around to embracing some of Jayapal’s reforms.