Government Capacity: Congress

Sector: 23.7% of GDP (Federal Government)
Estimated Cost: $11.64B over 10 yrs / .20% of federal budget
Political Challenge: Medium 

I. Overview 

The Supreme Court's 2024 Loper Bright decision reshapes how America implements policy. By ending Chevron deference, it strips federal agencies of their traditionally wide-ranging authority to interpret ambiguous laws—closing a forty-year chapter of often-bold agency action.  

Congress, long content to delegate difficult decisions to agencies, should now step up. But building a legislature capable of detailed, thoughtful governance will require investment: more expert staff, better analytical tools, and more interbranch cooperation. Congress needs to rebuild its muscles, or its “capacity,” for the heavy lifting ahead. 

II. Problem

The end of Chevron deference means that the executive branch no longer receives broad benefit of the doubt in its interpretation of ambiguous statutes. This decision is expected to cut two ways, on the one hand limiting executive overreach in either direction (and ending the dramatic interpretive flips between them) and leading to a more restrained environment of regulation for businesses and households. 

On the other, it risks instability and exploitation. To a yet unknown degree, courts will strike down new and old agency actions and may even disagree with each other about what statutes permit agencies to do, creating a patchwork of regulatory interpretations nationwide.¹ Special interests stand to gain influence, doing demolition as litigants and reconstruction as advisers to Congress and agencies on their least favorite agency rules.   

The extent of Chevron’s consequences are still unclear, due to three x-factors:  

• Loper preserves agency authority over the most wonky rules, i.e., those based in scientific and factual expertise

• Judges may choose to retain some deference to agencies especially on long-standing agency interpretations, and 

• Some evidence suggests that executive agencies are relying on Chevron less in recent years to justify their rulemaking. 

A new body of case law spelling out the full implications will take time to emerge.² But the need to prepare for change is urgent.

Congress is in a poor position to pick up the slack left by agencies. Despite federal regulation ballooning in size and complexity, Congressional capacity has atrophied with: 

• House committee staff levels declining by more than 40% over the past 40 years, and Senate staff remaining relatively flat 

• Staff tenure declining, further undermining committee capacity³ 

• Staff levels of many congressional "support agencies" declining over a similar period, for example by 28% at the Congressional Research Service (CRS) and 44% at Government Accountability Office (GAO)⁴  

• Committees, congressional rules and norms, and technical tools ill-suited for detailed legislation and dynamic oversight. For example, legislative support agencies have limited authority to demand data from the executive branch, and the Congressional Review Act allows rejection (not approval) of pending agency rules but not approval

As a result of this decay, Congress lacks the manpower and muscle memory to build — that is, to take a greater role in governance than vague statutes and punitive oversight. But the chaos presented by Loper may reignite its will. 

III. Recommendations 

Congress' staff should double to roughly 4,000 members, especially by staffing up on subject matter experts. Additional administrative and legal staff will also be critical. These additional staff members will advise on regulatory and statutory developments, create stronger topic knowledge bases, and maintain a formal record of congressional intent.  

To be effective, Congress must be a better recruiter of high-quality talent. This means increased pay.⁵ More modestly, Congress can also offer greater professional development and benefits.⁶ 

Congress' support agencies must become stronger, especially by staffing up and improving data access. To become a helpful partner in the regulatory process, Congress needs between 250 and 500 full-time permanent staff to score, comment on, oversee implementation of, and evaluate effects of all significant rules.^7,8,9 These new regulatory functions could be piloted for now within an existing agency — like GAO — or in a new standalone office (e.g., the Office of Regulatory Review), with further action taken as the implications of Loper become clear from court decisions. 

Other investments will be prudent as Congress takes a greater role in governance. Support agencies will require (more) wide-ranging authority to retrieve data from federal agencies,¹⁰ which are sometimes uncooperative, and committees could benefit from expanded details from the executive branch and GAO.¹¹ Finally, Congress should invest in its nonpartisan legislative counsel to help advise on Chevron’s emerging case law and its implications for drafting statutes. 

Congress needs technical tools to support an expanded workload. Per its Select Committee on Modernization’s recommendations, Congress should invest in better hiring systems as it prepares to staff up and should enforce participation in its new scheduling tool to deconflict Members, allowing them to be more engaged in committee work.¹² It should also make funds available for committees to track judicial proceedings via specialized software. Growing the administrative staff can help manage increased workload and use of new tools.  

Rules changes can enhance congressional effectiveness. While sensible ideas abound,¹³ Congress could make the Congressional Review Act’s expedited rule review symmetrical, so that it can be used to approve new rules — not solely to disapprove them — and send a positive signal to courts that they reflect congressional intent.  

IV. Risks and Politics  

Party competition for power is much more salient to modern politics than interbranch competition. As a result, members of either party will be hesitant to assert the legislative branch’s power relative to the executive branch when their party controls the Presidency. The time for reform may be most ripe when a single party controls both the executive and legislative branch, which includes the 119th Congress. Or strong, bipartisan leadership — especially from the House and Senate Appropriations Committees — could negotiate a consensus solution with support from party leadership and civically minded Members.  

Secondly, as legislative agencies become more important, partisans and other interests will be incentivized to try to influence them. Congress’s commitment to their independence and nonpartisanship — strong thus far — will be more critical than ever.