Engaging Congress in a Post-Chevron World and Preparing for Its September Return

Stakeholders can be ready to advance their priorities in the fall by drafting alternative legislative proposals adapted to work in different legislative contexts.

In an April workshop hosted by the National Academies of Sciences, Engineering, and Medicine, Partner Elizabeth L. Horner participated in a panel that examined the implications of Loper Bright v. Raimondo, the major questions doctrine, and other recent US Supreme Court decisions for Congress. Elizabeth drew on her experience as Republican Chief Counsel for the Senate Environment and Public Works Committee, where she helped draft partisan legislation adopted through the Congressional Review Act and served as the Committee’s lead advocate in Byrd baths. Her remarks were also informed by her work negotiating bipartisan legislation such as the Investment in Infrastructure and Jobs Act, the USE IT Act (supporting carbon capture, utilization, and sequestration), and the AIM Act (providing authority to the US Environmental Protection Agency to phase down the use of hydrofluorocarbons).

Elizabeth highlighted some of the unique policy constraints of different legislative approaches that Congress has deployed with increasing frequency in recent years. These approaches include the Congressional Review Act, the budget reconciliation process, and the attachment of outside Committees’ provisions to larger legislative vehicles, such as the annual National Defense Authorization Act.

Elizabeth explained how Congress’ ability to limit statutory ambiguity can depend on the type of legislation adopted.

Key Takeaways for Clients

• For all forms of legislation, stakeholders can help improve the precision and clarity of legislation by providing detailed, technical inputs to help ensure that laws are workable and more resilient to judicial review.

• This input can be especially important given some of the policy constraints posed by certain legislative approaches, including budget reconciliation legislation under the Congressional Budget Act, which limits the policy detail with which Congress can legislate under the so-called Byrd rule.

• Counsel from those experienced legislating in different ways can help stakeholders to advance priorities no matter the type of legislative vehicle — whether legislation is subject to a full Senate cloture process or is considered on an expedited, privileged basis under statutes like the Congressional Review Act and Congressional Budget Act.