One legal expert said that overturning the nearly 40-year precedent “would lead to far more judicial power grabs.”
By Brett Wilkins. Published 5-1-2023 by Common Dreams
The U.S. Supreme Court said Monday it will hear a challenge to a nearly 40-year administrative law precedent under which judges defer to federal agencies’ interpretation of ambiguous statutes—a case that legal experts warn could result in judicial power grabs and the gutting of environmental and other regulations.
The Supreme Court said it will take up Loper Bright Enterprises v. Raimondo—a case in which fishing companies are seeking to strike down the Chevron doctrine, named after the landmark 1984 Chevron USA v. Natural Resources Defense Council ruling that conservatives have long sought to overturn. The case is one of the most cited precedents in administrative law.
The Chevron doctrine involves a two-step process in which a court first determines whether Congress expressed its intent in legislation, and if so, whether or not that intent is ambiguous.
James Goodwin, a senior policy analyst at the Center for Progressive Reform, told Politico that Loper v. Raimondo has “the potential of being one of the most destabilizing decisions that this court has issued.”
President Joe Biden’s “environmental and energy agencies were already facing a heavily tilted playing field in the federal judiciary,” Goodwin added. “I think eliminating Chevron… would make the prospects of surviving judicial review all the more daunting.”
SCOTUS just put the Chevron doctrine squarely in the crosshairs https://t.co/DwFt8LGctjhttps://t.co/DyFBlZR1EB pic.twitter.com/p0Jk5n6TvL
— Mike Sacks (@MikeSacksEsq) May 1, 2023
At issue in Loper v. Raimondo is whether the federal government can force herring fishers to fund a National Marine Fisheries Service program used to monitor their work. Two fishing companies argue that while the Magnuson-Stevens Act requires owners of fishing vessels to accommodate federal monitors onboard, the proprietors are not required “to pay the salaries of government-mandated monitors who take up valuable space on their vessels and oversee their operations.”
The Biden administration’s argument in favor of the Chevron doctrine leans heavily upon precedent.
“Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop,” a brief filed by U.S. Solicitor General Elizabeth Prelogar and other officials in support of the doctrine notes. The brief adds that the Chevron doctrine “promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes.”
Chevron deference is the doctrine that judges should defer to the executive branch when the executive is interpreting ambiguous language in a law. It is rooted in principles of separation of powers and judicial modesty.
— Aaron Reichlin-Melnick (@ReichlinMelnick) May 1, 2023
Its death would lead to FAR more judicial power grabs. https://t.co/6EPlmnxxnP
In 2020, Justice Clarence Thomas wrote in Howard v. United States that “Chevronis in serious tension with the Constitution,” while Justice Neil Gorsuch opined last year in Buffington v. McDonough that the doctrine “deserves a tombstone no one can miss.”
“Overruling the Chevron doctrine, and undermining agencies and regulatory authority more broadly, has long been a hobbyhorse of Neil Gorsuch and other conservatives,” legal journalist Christian Farias tweeted. “In a sense, the outcome of this case is foreordained. It’s part of a continuing agenda.”
Last year, SCOTUS had several chances to overturn Chevron. It stopped short of the brink — perhaps because the majority had other projects on its mind.
— James Romoser (@jamesromoser) May 1, 2023
2022 was for abortion & guns.
2023 likely will be for affirmative action.
2024 may be for weakening the administrative state.
Liberal Justice Kentanji Brown Jackson has recused herself from Loper v. Raimondo, explaining that she sat on the circuit court that initially heard the case.
“I still want to know how Ketanji Brown Jackson feels about all of this,” Farias wrote. “Her insights are valuable: She was the vice chair of the U.S. Sentencing Commission, an agency that is given Chevron-like deference in some contexts. Making her sit this one out won’t help.”
This work is licensed under Creative Commons (CC BY-NC-ND 3.0).
