Loper Bright’s Impact on the Political Realm: The “Future of the Democratic Coalition” 

The Yale Journal on Regulation’s blog, Notice & Comment, has published the second half of a two-part series exploring the impact of Loper Bright on the two major political parties and their members in Congress.   

The first half, published last month, explored how Chevron deference possibly served a uniting function for the GOP, and that its elimination by the Supreme Court now leaves an “open question whether business-minded conservatives and antistatist conservatives can maintain their previously productive alliance.”   

The follow-up piece now turns its attention to congressional Democrats.  Despite an early push by some liberal progressives to abrogate Loper Bright by statute and codify the old Chevron deference standard, Professor Gregory Elinson argues that, much as for Republicans, “it might be more productive to start thinking about the end of Chevron as a political opportunity.” 

Chevron’s end might prompt Democrats to reconsider the reflexive expectation that agency officials will be the vanguard of progressive policymaking.  We have good evidence that the policy preferences of left-leaning civil servants, as reflected in the interventions they champion as well as those they opt not to pursue, increasingly diverge from the expectations of liberal voters.  An independent bureaucracy free from political control—and, in particular, walled off from presidential supervision—might not be the best way to realize the policy goals that Democratic voters have set.  So, too, Democrats might begin to question their broader commitment to scientific and technical expertise as an overriding political virtue and at least acknowledge the limits or blind spots of professional expertise. 

These were lessons that the New Deal-era Democrats who founded our administrative state knew well.  . . .  Rather than emphasize their regard for expertise, they committed themselves to “carrying out the judgment and will of the people.”  Democrats today might ultimately wish they did the same. 

These thoughts are surely speculative.  What we can say with greater confidence is that moving from one doctrinal equilibrium to another may ultimately prove politically generative . . . .  In the wake of a long-established doctrine’s demise, new lines of political communication may emerge.  When it comes to thinking about the place of agencies in our constitutional system, Chevron’s end may prompt Democrats recover their New Deal heritage and emphasize “political judgment” over bureaucratic expertise in the hope of revitalizing their coalition and increasing its electoral appeal. 

Read the rest here. 

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.