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The US Supreme Court on Wednesday wrestled with whether to throw out a 40-year-old legal doctrine that gives federal agencies considerable leeway to craft rules and regulations, in a pair of cases that could result in big changes to how the government is run.
At the centre of the cases is a legal doctrine known as the “Chevron deference”, which stems from a 1984 Supreme Court decision involving the oil major. Under the doctrine, courts generally defer to agencies’ interpretation of rules and laws written by Congress.
During oral arguments the court’s three liberal justices signalled opposition to over-ruling the precedent, raising concerns around separations of power and a potential new wave of litigation.
The court’s conservative wing, which has been more sceptical of the federal government’s authority in past cases, appeared more open to rethinking the longstanding doctrine, with justices Neil Gorsuch and Brett Kavanaugh in particular questioning whether it was an outdated principle.
Gorsuch said there was uncertainty around what constitutes the ambiguity that gives agencies, under Chevron, flexibility to interpret US laws when crafting rules. That was “a clue that something needs to be fixed here”, he said.
Kavanaugh defined Chevron as a “shock to the system”, giving regulators the latitude to flip-flop on policy every time a new administration takes office.
Liberal justices argued that agencies’ experts, rather than judges, were often best placed to craft rules. Justice Ketanji Brown Jackson warned that striking out Chevron could turn judges into policymakers. “There’s a real separation of powers danger here,” she said. “I’m worried about the courts becoming uber-legislators.”
If the Chevron doctrine were overruled, rules “are much more likely to be invalidated by a court, and so the agency will have to be much more careful about which options to choose and how it selects between various possibilities”, said Jonathan Masur, professor at the University of Chicago’s Law School. Federal courts would also have more power to determine whether rules fit their interpretation of a statute.
Some courts in the US have grown increasingly sceptical of agencies’ regulatory powers. The Supreme Court in 2022 handed down a landmark ruling that curbed the Environmental Protection Agency’s ability to limit greenhouse gas emissions from power plants.
Decisions like the one involving the EPA were all “instances in which the Supreme Court is taking away some degree of flexibility or freedom to operate from regulatory agencies and constraining their power and authority in some important way”, Masur said. “Any given one of them has quite a significant effect, but taken together, they have potentially a very dramatic effect.”
The cases heard on Wednesday were brought by fishing companies challenging rules set by the National Marine Fisheries Service, which can require vessels to pay the monitors sent aboard their boats to oversee their compliance with federal rules.
“[P]romulgating a regulation that requires at-sea monitors . . . to be paid for by the very fishing vessels forced to carry them” had “revived . . . grievance” similar to that which fuelled New England dwellers’ 18th century rebellion against King George III, the fisheries said in court documents.
Roman Martinez, a Latham & Watkins lawyer representing one group of fisheries, said Chevron should be overruled because it had distorted the judicial process and “undermine[d] statutory interpretation”.
Paul Clement, a lawyer at Clement & Murphy who argued on behalf of the second set of fishing companies, said the case “well illustrates the real world cost[s] of Chevron, which do not fall exclusively on the Chevrons of the world, but injure small businesses and individuals as well”.
Commercial fishing was “hard,” with tight margins, Clement said. Requiring vessels to carry federal observers “is a burden, but having to pay their salaries is a crippling blow”, he added.
US solicitor-general Elizabeth Prelogar, representing the federal agency being sued in the case, argued that the doctrine was “a bedrock principle of administrative law with deep roots in [the Supreme] Court’s jurisprudence”.
“Over-ruling a precedent is never a small matter,” she added. “But over-ruling a precedent as foundational as Chevron should require a truly extraordinary justification. And petitioners don’t have one.”
A decision is expected by the end of June.
