Former Senator Says Congress Unlikely to Step Up Post Chevron
Former U.S. senator from Pennsylvania Pat Toomey, who was one of the strongest advocates of free trade when he served in the Senate, told a moderator from the American Enterprise Institute that he doesn't believe Congress will pass more detailed legislation to curtail agencies' leeway to write regulations. A Supreme Court decision said judges will have more authority to overrule regulations, as the deference they had given to reasonable regulation is no longer the judicial branch's baseline.
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He disagreed with the arguments that Congress doesn't have the expertise to do so -- he said there are many laws with technical language, and that Congress can always receive technical assistance from agencies as they draft laws. But, he said, there is little appetite to guard their authorities, as was seen after the Section 232 tariff actions during the Trump administration.
"Congress has willfully ceded its own responsibilities, abrogating its Constitutional responsibilities in many ways to the executive," he said July 17. "Even when those powers have been abused, Congress has refused to step in."
"Under the Trump administration, we saw the very promiscuous use of [Section] 232 to justify tariffs which had nothing to do with national security," he said, and that was something he said he was "very bent out of shape" about.
He called the Commerce Department's and Trump's actions blatant abuse, and said that while he had a "decent number" of bipartisan co-sponsors of a bill to give Congress the ability to decide if Section 232 actions were warranted, "I was never close to being able to get this passed."
He said that's because it was a political judgment that calling up the issue for a vote would be controversial. He said many senators feel, "if I avoid taking a controversial position I’m less vulnerable to attack in my next election."
Panelists who spoke about how the decision will change agencies' behavior said it will not be obvious in the short term. Rachel Augustine Potter, an associate professor of politics at the University of Virginia, said she thinks it will be years before the effects are fully felt, because rulemaking is slow, and so is litigation. Case Western Reserve University Law Professor Jonathan Adler said the decision won't increase litigation, because all major regulations are litigated anyway. However, he said, another Supreme Court decision, Corner Post, will increase litigation, because it eliminated the six-year statute of limitations under the Administrative Procedure Act.