Post-Chevron Working Group Report – Senator Eric Schmitt

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Post-Chevron Working Group Report

Sen. Eric Schmitt

Executive Summary

The Post-Chevron Working Group*  Report is solely the work product and views of Senator Eric Schmitt. This report is broken down into three sections: 1. Proposed Legislative Response to Loper Bright; 2. Analysis of the Administrative State’s unpreparedness for and hostility toward Loper Bright; and 3. Legislative Drafter’s Guide to Deference, Delegation, and Discretion.

Legislative Proposals: A series of Short Term priorities, Medium Term projects, and Long Term goals are required to seize this rare “wet cement” moment for our separation of powers.

  • Short Term priorities: Five proposals for the Congressional Review Act and three regulations that may be a new target for litigation.
  • Medium Term projects: Ten existing or forthcoming legislative proposals to increase Congressional leverage over the Administrative State and weaken its capacity to harm.
  • Long Term goals: Three long term proposals to reset the board and redefine the relationship between Article I and the Administrative State, challenging the Administrative State’s core thesis: that only unaccountable bureaucratic elites possess the skill and expertise to create the rules of the game for a modern state.

The Administrative State’s unpreparedness for and hostility to Loper Bright: An analysis of the responses (and non-responses) of the 101 administrative agencies who have published fifty or more final rules since the year 2000 in the Federal Register. This section discusses the Good, the Bad, and the Ugly of our received responses. It also discusses those agencies “Gone Fishing” who did not take the time to respond to a group of twenty Senators’ serious inquiry.

  • The Good: A few agencies showed a willingness to adapt to Loper Bright.
  • The Bad: No agency adequately prepared for and addressed the overruling of Chevron.
  • The Ugly: Twenty-seven agencies told us little more than to consult the Federal Register.
  • Those Agencies “Gone Fishing:” Twenty did not even bother to respond to our inquiry.

The Legislative Drafters Guide to Deference, Delegation, and Discretion: A practical primer for members and legislative staff on how to think about, spot, and deal with three of administrative law’s most statutory concepts: deference, delegation, and discretion.

  • Deference: When courts defer to an agency interpretation instead of evaluating it.
  • Delegation: When Congress delegates authority to make, interpret, or enforce rules.
  • Discretion: When Congress allows agencies to make discretionary decisions.

Please click here for the full report.

 

* Working Group membership includes: Sen. Eric Schmitt (R-MO) (Chair), Sen. Kevin Cramer (R-ND), Sen. John Cornyn (R-TX), Sen. Rick Scott (R-FL), Sen. Cynthia Lummis (R-WY), Sen. Joni Ernst (R-IA), Sen. Ted Cruz (R-TX), Sen. Mike Lee (R-UT), Sen. Ted Budd (R-NC), Sen. Tommy Tuberville (R-AL), Sen. Thom Tillis (R-NC), Sen. Pete Ricketts (R-NE), Sen. Mike Braun (R-IN), Sen. Roger Marshall (R-KS), Sen. Bill Hagerty (R-TN), Sen. Jon Thune (R-SD), Sen. Marsha Blackburn (R-TN), Sen. Rand Paul (R-KY), Sen. Ron Johnson (R-WI), and Sen. Dan Sullivan (R-AK). This report is issued by the Working Group’s Chairman, Sen. Eric Schmitt (R-MO). It may not reflect the views or totality of the views of the other 19 members of the Working Group and this report’s contents should not be ascribed to their offices without their public, express consent.

 

 

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