The U.S. Congress needs help. It lacks the expertise to do its job in the post-Chevron world.
At the end of its most recent term, the Supreme Court cast aside in a 6-3 decision the Chevron deference, which for 40 years required judges to defer to reasonable interpretations by federal agencies of the laws they are charged with administering. To legislate effectively without the Chevron deference, Congress will have to enact laws that leave far less room for interpretation.
It will need help doing so, especially when it comes to highly technical and complex issues, like those the Food and Drug Administration, the Department of Health and Human Services, the Environmental Protection Agency, and others deal with every day.
Chevron dealt with the reality that ambiguities are common when Congress creates legislation on complicated matters. Though conservatives had long opposed the precedent as concentrating too much power in the executive branch, Chevron offered at least three advantages for both new laws and laws whose regulations must be updated to account for changes over time.
First, it made the implementation of statutes politically accountable by placing it under the ultimate control of a president who stands for election every four years.
Second, it made implementation transparent by giving it to agencies that function under the stringent provisions of the Administrative Procedure Act. This act requires regulatory agencies to provide abundant opportunity for public comment on their decisions and create thorough public records to justify them.
Third, the Chevron precedent highlighted and relied on the expertise of agency officials — many with advanced training — who have substantial content knowledge and experience in the areas they are regulating.
Now, in the midst of statutory ambiguity, agencies may hesitate to make rules at all, fearing prolonged litigation. When they do make rules or decisions, special interests will be free to tie them up in the courts. Decisions will be made by unelected and unaccountable judges whose expertise lies in the law, not in the technical matters under consideration, and whose process of decision-making will be far less transparent than required under the Administrative Procedure Act. While this process plays out to uncertain ends, monied stakeholders will be able to pursue their private interests.
In oral arguments, Justice Elena Kagan, who dissented from the Court’s ruling, used the example of artificial intelligence to question the wisdom of the decision. Imagine judges making decisions about the safety and efficacy of AI applications used by doctors and patients. The problem is not only that the issues involved — technological, biological, statistical, and economic — are enormously complex, but also that the potential applications could number in the tens of thousands. In addition, the computing technologies underlying them grow more powerful almost by the day, requiring constant reexamination of decisions.
There is no way the judiciary, with its long, unpredictable processes and lack of technical staff, is prepared to take on this responsibility. The result could be chaos in a field potentially vital to the future health of Americans.
To minimize the chaos, Congress would have to make its statutes regarding AI and other complex issues as explicit as possible to avoid the ambiguity that will empower special interests to tie up critical legislation in the courts. This, in turn, will require Congress to have far more nonpartisan, independent expertise than it currently has, especially in areas like science and technology.
An example is the Office of Technology Assessment, which Congress created in 1974 to work with members and staff on a wide range of technical and scientific issues. In a cost-cutting move, Congress defunded the office in 1995. While it operated, the office produced nearly 750 reports tailored to congressional needs on topics as diverse as Social Security’s IT strategy, approaches to reducing Medicare costs, and the use of spectrum auctions by the Federal Communication Commission.
Other congressional support agencies, like the U.S. Government Accountability Office and the Congressional Research Service, don’t currently have the breadth or depth of expertise to do the job. Adding to the problem is that, over the years, Congress has dramatically cut staff on its major committees, which is where most of its substantive expertise resides.
Congress could address its post-Chevron deference challenge by refunding the Office of Technology Assessment, whose authorizing statute was never repealed. It could add to staff at the Government Accountability Office and the Congressional Research Service. And it could recruit world-class experts to work in Congress by creating flexible, well-compensated pathways to service on committee and personal staffs.
Building up Congress’s expertise is far from a panacea. There will be objections that the last thing the country wants is a dysfunctional national legislature intruding further in the business of Americans. And more explicit statutory language won’t substitute for effective rule-making by the executive branch. The world is too dynamic to depend on statutes to guide every policy decision.
The best we can hope for is to minimize the disruption and confusion that the Supreme Court has created. The alternative is to leave the nation totally unprepared to manage the practical and policy implications of developments that promise huge benefits — and huge risks — for the American people.
David Blumenthal, M.D., M.P.P., is professor of the practice of public health and health policy at the Harvard TH Chan School of Public Health, former president of the Commonwealth Fund, and a former staff member to the late Senator Edward M. Kennedy. Sara Rosenbaum, J.D., is the Harold and Jane Hirsh Professor Emerita of Health Law and Policy and founding chair of the Department of Health Policy at the Milken Institute School of Public Health at George Washington University.