Following the Supreme Court decision in Loper Bright v. Raimondo, which overturned the Chevron doctrine granting federal agencies broad deference to interpret statutes, a “Post-Chevron Working Group” comprised of twenty Republican Senators began working to outline a proper legislative response to the decision and to define a “best practices” for future legislative action. On June 5, 2025, the working group published a 150-page report outlining its findings and recommendations.
Among the material presented, the working group included a section detailing a “Legislative Drafter’s Guide to Deference, Delegation, and Discretion.” After discussing the meaning of deference, delegation, and discretion, and their relevance to the drafting of new legislation, the report included best practices. The goal of new legislation, the report concluded, should be to limit agency action to “ministerial duties.” The text of the statue itself should define the cost-benefit analysis underlying the statute and avoid vague buzzwords that grant agencies enormous leeway to steer legislation away from the legislation’s purpose. As the report notes, “[e]very degree of additional precision, definition provided, or buzzword avoided takes away legal arguments an agency can utilize to exercise discretion or otherwise stretch the meaning of a statute.”
