December 18, 2024

Ranking Member Takano on Loper Bright: “This is a massive shift of power from agency experts to subjective, unelected judges”

WASHINGTON, DC – House Committee on Veterans’ Affairs Ranking Member Mark Takano (CA-39) delivered the following opening statement, as prepared, during this morning’s Full Committee Oversight Hearing about the Supreme Court’s Loper Bright decision:

“Thank you, Mr. Chairman. In its decision in Loper Bright Enterprises versus Raimondo, the Supreme Court overturned forty years of precedent and radically transferred power from the legislative and executive branches to the judiciary. And contrary to what my colleagues believe, going forward, it will now be much harder for Congress to exercise its power, and our policymaking judgment will be substituted with that of activist judges and their clerks.  

I have long heard arguments from my colleagues across the aisle that Congress’s authority somehow diminished since the Chevron versus National Resources Defense Counsel ruling in 1984.  

However, Congress has always had the power to be prescriptive and deliberate with its legislative drafting to make its intent clear and unimpeachable. We also have the choice to be vague or to give an agency flexibility in interpreting our legislation. And with that, until Loper, we accepted that the agency would use its superior technical expertise to implement those laws.  

Yet now, my Majority colleagues, in their anti-intellectual fervor and rush to condemn ‘unelected bureaucrats,’ are celebrating the fact that well-trained and educated experts will lose the discretion that we purposefully bestowed up on them, in hopes that unelected federal judges will rescue them from their inability to legislatively enact their corporate welfare agenda. 

The Supreme Court did not wave a magic wand in its Loper decision and endow some new superpowers in our hands as Members. In fact, Loper does not make any actual changes to how Congress must draft or how agencies must interpret legislation. Congress will continue to decide how much discretionary authority to delegate agency heads. And Congress will still be as specific or as vague as it chooses in how it tells an agency to act. No doubt, my colleagues across the aisle are going to be bullied on countless occasions to be deferential to the incoming Administration.  

Congress has often delegated broad discretion to the VA secretary. The Loper decision will not result in a seismic shift in how this Committee does its job or how VA implements the laws we pass. I disagree with the Majority’s assertion that Loper gives Congress some new tactics to seize authority back from VA, or to assert our rights as the legislative branch.  

Again, we have always had that power, to direct the agencies to act and prescribe specifics as to how we want them to act. It is up to Congress to authorize, and it is up to Congress to appropriate. That does not change under Loper.  

What does change is how the courts will review administrative actions taken by an agency.  Judges will decide the best reading of ambiguous legislative text and if an agency fails to apply that judge’s best reading in its rulemaking, the judge will likely invalidate the rule. This is a massive shift of power from agency experts to subjective, unelected judges who may or may not have any sort of knowledge base on the topic at hand. Sweeping policy implications will rest solely on which judge hears a case.  

Corporate interests that can afford high-powered, well-connected attorneys will challenge agency actions that don’t boost their self-interests, and will likely win under this new Loper scheme that promotes the cronyism the Federalist Society exists to preserve. Claims sharks, private-equity-owned healthcare, for-profit colleges, and pharmaceutical companies will march their attorneys into our Federal courts and challenge any VA rule that doesn’t bolster their bottom line. Our legislative efforts to modernize VA will be thwarted by profit-driven IT companies with multibillion-dollar, tax-payer funded contracts who routinely fail to deliver functional IT solutions. And veterans will be left worse off.  

Loper not only shifts interpretative authority away from agency experts, it takes away the power of Congress to choose when it wants to implicitly give agencies discretion to implement law.  

Judges will now be positioned to strike down agency rules that are within the broad discretion Congress intended because the agency did not apply what in that judge’s mind is the best reading. Essentially, the bought-and-paid-for, conservative-majority Supreme Court said that even when Congress thinks it is delegating interpretive freedom to the agencies, the agencies do not get to exercise it. Instead of that power flowing back to Congress, though, it flows into the pens of unelected judges and their clerks.  

Sometimes, we are ambiguous and flexible on purpose, especially on this committee. Flexibility increases the chance that VA can lean on current laws to address problems veterans may face in the future. One of the best examples of this intentional flexibility was in my Honoring our PACT Act. As VA finds out more about the harmful effects of toxic exposure through research over the years to come, they will be able to issue regulations to add presumptive illnesses for which veterans can qualify for health care and benefits.   This will save thousands if not millions of lives as it can often take decades for Congress to act on these presumptive illnesses.   

Moreover, my colleagues fail to appreciate that to be prescriptive in legislative text in the way the Supreme Court suggests will be necessary for Congress’s intent to be obeyed, we will need an infusion of resources, capacity, and expertise on our Committees and across the institution. We failed to pass a legislative branch appropriations bill this year because my Majority colleagues refuse to prioritize resources for this body and our ability to serve our constituents.  

MAGA Republicans defeated the appropriations bill that funds offices that will make our legislative drafting better, like the Office of Legislative Counsel, the parliamentarian, and the Congressional Research Service because they believed we were providing too much to the offices that are the bones of this Article I institution.  

We also need to invest more time and effort into the legislative process. Very little oversight was done on numerous Republican legislative priorities, and they were attempting to force policies based on anecdotal information. This is a poor way to make policy and only sets us up for failure. If we want agencies to implement laws; well, we have to spend the time perfecting legislation – we can’t legislate on feelings alone.  

So, if my Majority colleagues are serious about reclaiming some perceived lost power to make congressional intent clear in this post-Loper world, we need to be intellectually honest with ourselves about the investments we will need to make in our Committee staffs and the staffs of the already over-burdened legislative branch offices that support us.  

Thank you. I yield back.” 

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