On Friday, the Supreme Court overturned the 1984 decision Chevron v. NRDC, critical in American regulatory policy. Under Chevron, courts were to defer to federal agency interpretations of statutes, unless the statutes themselves spoke directly to policy questions and as long as the agency interpretations were reasonable.
The Chevron decision originally allowed a regulation passed by the Environmental Protection Agency (EPA) under President Ronald Reagan to stay in place. While the decision originally cheered supporters of deregulation (the regulation in question in the lawsuit gave industry more flexibility in complying with EPA rules), over time it became a top target for opponents of regulation. Because Chevron recommended deference to agencies, courts regularly cited it in supporting the regulatory efforts of later administrations.
In the 40 years since Chevron, regulation has continued its trajectory, begun in the 1970s, as an increasingly prominent policymaking tool. This has been particularly true in the implementation of progressive policy aims such as combating pollution and climate change, protecting workers from workplace hazards and safeguarding the financial system. But it also has been used to advance conservative priorities by restricting immigration and advancing homeland security.
The result of the boom in regulation has been cleaner air and water and safer workplaces, among many other things. Regulations have also imposed significant costs on the economy, but most studies have shown that the benefits of regulation have significantly outweighed their costs.
Over the same period, however, American trust in government has declined. It is tempting to argue that the growth in regulation has played a role in fueling this negative public perception of government. But digging underneath the data reveals that the relationship is far more complicated. Agency actions may be one of the few things about government that people do like.
First of all, congressional approval, which has never been high — between 30 percent and 50 percent back when trust in government was much greater — is now at a disastrous 16 percent. The current and previous presidents have had historically low approval ratings. Conversely, Americans have favorable views of most federal agencies. (OK, not the Internal Revenue Service.)
Much of the thinking behind the repeal of Chevron deference is that it will force Congress to pass more specific laws addressing public policy concerns by making it harder for agencies to regulate. There are two gaping holes in this logic. First, as shown in the data cited above, we would be moving policymaking from a part of government that people trust and approve of to the one that they have the least faith in. Second, there is no reason to believe that Congress will react to this by becoming more responsible.
Dysfunction in Congress is obvious, particularly in the current session, highlighted by the battles over which a Republican will serve as Speaker of the House. The budgetary process — arguably Congress’s most important function — is, according to experts across the ideological spectrum, broken. And even if you believe that the congressional chaos of the past few years is irrelevant or temporary, there is also the problem of congressional capacity.
Congress delegates decisionmaking to agencies in part because it doesn’t have the expertise to make the decisions on its own. The House itself has become too small, as population growth means that the number of citizens represented by each member has grown from 210,000 in the early 20th century to 762,000 today.
Enlarging the House of Representatives and expanding the resources available to Congress are worthwhile endeavors, but they are unlikely to close the gap in expertise between the national legislature and executive branch agencies. And they do nothing either to reduce the likelihood of dysfunction in Congress or to change the incentive Congress has of delegating politically painful decisions to agencies (which they can then criticize for making those decisions).
There may be a universe out there where restricting agencies’ abilities to make policy decisions will lead to a democratically responsive Congress assuming those responsibilities and producing public trust in the policymaking process. But in our universe, it is far more likely that the Supreme Court’s decision will mean that pressing public problems take longer to be solved — or never get solved at all — and thus faith in government takes yet another blow.
Stuart Shapiro is the dean of the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him @shapiro_stuart.