New Paper on Restoring Separation of Powers After Loper

Joseph A. D’Angelo from the Florida International University College of Law published “Chevron Solutions: Restoring the Separation of Powers in a Post-Chevron Landscape” in the University of Florida’s Journal of Law and Public Policy:

The erosion of congressional authority in the face of expanding executive power, particularly through administrative agencies, is of critical importance. A robust and functional Congress is essential for maintaining the balance of power within the democratic system. This Article delves into the history and impact of Chevron deference. This doctrine granted agencies interpretative authority over ambiguous statutes, highlighting the consequences of Congress’s failure to assert its policy-making responsibilities. This passive legislative stance has allowed the executive branch to dominate national policy decisions, often leading to legal disputes and unstable policies subject to change with each
presidential administration. The Court’s recent decision in Loper Bright v. Raimondo overturned that doctrine but left no clear next steps. This paper posits next steps and advocates for reforms to reclaim Congress’s central role in governance. It presents three potential paths: (1) enacting a clear definition of the limits of congressional delegation by establishing what constitutes generally applicable rules of private conduct; (2) taking no action, instead observing how states manage deference in a post-Chevron context; or (3) adopting structural reforms to ensure Congress effectively checks executive power and upholds constitutional principles