Supreme Court set for pivotal cases that could claw back federal administrative power

The Supreme Court will hear a dispute this week that could lead to a decision dramatically clawing back the power of federal agencies, putting a number of consumer and environmental protections in jeopardy.

At issue is whether courts should defer to interpretation by federal agencies when a law could have multiple meanings, a practice known as Chevron deference.

In practical terms, this means the court is considering whether to weaken the ability of a presidential administration to put forward regulations meant to counter pollution or climate change or to protect consumers without clearer authorization from Congress.

Such a feat would advance a long-sought goal of anti-regulatory interests, whose hopes are bolstered by some conservative justices’ recent skepticisms of Chevron. It is one of multiple, major cases at the high court this term implicating the administrative state.

“This is a campaign to weaken government’s ability to protect you from these kinds of modern dangers whether they’re to your health through unsafe air or water or … through unsafe drugs or food or whether it’s your financial security,” said David Doniger, senior strategic director for the Natural Resources Defense Council’s (NRDC) climate and clean energy program. 

“Those protections require a government with some capacity to effectively respond, and this case is about destroying that capability,” Doniger added.

The Chevron deference originated from a case argued by Doniger himself during the Reagan administration.

A bedrock of administrative law, the nearly 40-year-old precedent has given federal agencies wide latitude to enact regulations in areas where a law set by Congress was ambiguous.

Anne Gorsuch was then-President Reagan’s first Environmental Protection Agency (EPA) administrator when the challenge was made by Doniger and NRDC. Her son, Justice Neil Gorsuch, now may be a part of the majority that demolishes the Chevron standard.

In two separate cases set to be argued Wednesday, the justices will hear challenges to the same fishery rule that have become the most promising vehicles yet to overrule Chevron.

Gorsuch and fellow conservative Justice Clarence Thomas have publicly cast doubts about the precedent’s future. Justice Brett Kavanaugh is also viewed as a skeptic, while the views of some of the newer justices, particularly Justices Amy Coney Barrett and Ketanji Brown Jackson, are more unclear. 

For months, the court was set to hear just one of the cases, Loper Bright Enterprises v. Raimondo, a lawsuit brought by four family-owned Atlantic herring fisheries represented by conservative legal heavyweight Paul Clement.

But Jackson recused herself from that case, as she had sat on the D.C. Circuit Court of Appeals when it previously heard the dispute.

The court later added a second, near-identical case, Relentless, Inc. v. Department of Commerce, in which lawyers with the conservative New Civil Liberties Alliance (NCLA) challenged the same rule on behalf of a Rhode Island-based fishing fleet. All nine justices are expected to sit for this case.

“The court has allowed them to misuse [Chevron] in ways that makes everyone perform badly in our tripartite government,” said John Vecchione, NCLA’s senior litigation counsel who is the plaintiffs’ counsel of record.

“And the reason I say that is, it incentivizes Congress not to clearly state what they’re doing in a statute,” Vecchione added. “They put in the main points. And then they assume that whatever the administration does, if they like it, they can take credit; if they don’t like it, they can say, ‘ah, we could never know that was going to happen!’”

Defenders of the Chevron deference argue that it makes sense: When the law is unclear, federal agencies, teeming with experts, should get to make the decision.

“What the doctrine recognizes is that within the government there are hard-working people who have developed an expertise on whether food is safe, on how you limit pollution from power plants, on how you ensure that our airplanes and automobiles are safe,” said Andrew Mergen, faculty director of Harvard Law School’s Emmett Environmental Law and Policy Clinic.

“The doctrine promotes a regime … where experts do the gap filling and the alternative proposed by the alternative to Chevron is to have judges fill that gap,” he said. “A judge who’s not trained as a pilot, I do not want flying my airplane.”

But opponents argue that it provides too much power to the executive branch and takes away from the constitutional principle of separation of powers.

“The Constitution says the judicial power is vested in … judges, and so it’s an important separation of powers principle that only judges are vested with that power,” said Thomas Berry,  research fellow at the Cato Institute, a libertarian think tank.

Berry said that the power to interpret the law should instead rest with judges alone.

“Congress could pass a statute that has one policy goal and then a president of a different party or of a different ideology later on could essentially reverse it,” he said. “That would be thwarting democracy. A judge’s task is to simply interpret the law faithfully.”

Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law, said that if Chevron is overturned, that could have a “chilling effect” on federal agencies. 

“Agencies will be less willing to experiment with regulation and to seek to address emerging problems without specific direction from Congress,” he said. “It will most likely lessen the amount of regulation and the scope and extent of regulation.”

He added that at least in the short term, legal challenges to existing regulations will “probably” be more successful without deference.

The Biden administration may be the one defending the doctrine before the Supreme Court, but in theory, deference — or lack thereof — would apply equally to rules put forward by Democratic or Republican administrations. 

“And boy did I enjoy it,” Eugene Scalia, former President Trump’s Labor secretary, said of Chevron in a recent Wall Street Journal op-ed.

Proponents of overruling the doctrine have noted that the Supreme Court in recent years has solidified carveouts to Chevron deference or ignored it by resolving cases on other grounds.

“The doctrine is on its last legs,” Vecchione said. “This is more to put it out of its misery than it is some sort of, ‘oh, we’ve got to take away this doctrine that’s very robust.’ I think that the court has allowed this to percolate in the various circuits, and the circuits have showed what the problem is.”

Clement, representing the other group of plaintiffs, wrote in court papers that the justices hadn’t invoked Chevron since 2016, referencing an appellate judge’s decision likening Chevron to “the-case-which-must-not-be-named,” a reference to Lord Voldemort in the “Harry Potter” series.

“Thus, the question is less whether this Court should overrule Chevron, and more whether it should let lower courts and citizens in on the news,” Clement wrote. “The reality is that Chevron has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough. The government’s pleas to retain this misguided and reliance-destroying doctrine fall far short of the mark.”