Members of the Supreme Court’s conservative majority appeared eager Wednesday to overturn or limit a key precedent that has empowered executive agencies and frustrated business groups hostile to government regulation.
Based on the questions in two tough debates that lasted a total of more than three and a half hours, the fate of a fundamental principle of administrative law called the Chevron deference appeared to be in jeopardy.
The principle takes its name from a 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law. Abandoning it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts.
Under Chevron, judges must look to agencies’ reasonable interpretations of ambiguous statutes. In close cases, and there are many such cases, the agency’s views take precedence, even if the courts have ruled differently.
Solicitor General Elizabeth B. Preloger overruled Chevron, telling the justices that defending the theory would be “an unfair blow to the legal system.”
Justice Brett M. Kavanaugh responded that “the reality of how it works is that Chevron shocks the system every four or eight years when a new administration comes in.” He said the doctrine affects laws on securities, antitrust, communications and the environment.
Other conservative judges said courts should use normal tools of statutory interpretation to decide what the laws mean without giving decisive weight to the agencies’ views. In contrast, the court’s three liberal members said that agencies are often in a better position than the courts to interpret ambiguous statutes in their areas of expertise.
Justice Ketanji Brown Jackson said Congress has given agencies few policy options. “And my concern,” she said, “is that if we take away something like Chevron, the court will suddenly become the policy maker.”
The cases the judges considered were brought on behalf of two groups of fishermen, one in New Jersey and the other in Rhode Island. He objected to a marine agency’s interpretation of a 1976 law that requires them to carry observers to collect data to prevent overfishing.
According to the disputed interpretation set out in a 2020 regulation adopted by the National Marine Fisheries Service, fishermen were not only required to transport the observers, but also pay for them at a rate of about $700 per day.
The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the regulation in the New Jersey case, citing Chevron.
“Congress has delegated broad authority to an agency with expertise and experience in a specific industry,” Judge Judith Rogers wrote for the majorityStating that “the Court’s review is thus limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency’s interpretation is reasonable.”
It was, he wrote. “Although the Act cannot explicitly dictate whether the Service may or may not require industry-funded surveillance,” he wrote, “the Service’s interpretation of the Act to allow it to do so is reasonable.”
A unanimous three-judge panel of the First Circuit said much the same thing in the Rhode Island case. “at the very least,” Judge William J. Kayatta Jr. The agency’s interpretation of the 1976 law was “certainly reasonable,” he wrote for the panel.
Wednesday’s debate included several hypothetical questions. Justice Elena Kagan asked who should decide, for example, whether a product is a drug or a dietary supplement. He suggested that the answer was a specialist agency.
“It’s best to defer to people who know, who have long experience on the ground, who have seen thousands of situations of this type,” he said. “And, you know, judges need to know what they don’t know.”
Justice Kagan envisions a new statute addressing artificial intelligence that will inevitably have gaps and ambiguities.
“Congress cannot look even a week into the future on this subject, let alone a year or a decade into the future,” he said, adding, “Congress knows that this court and the lower courts will make all decisions.” Are not able to relate.” Questions that are going to come in the future about AI.
Justice Jackson has been recused from the New Jersey case, Loper Bright Enterprises v. Raimondo, No. 22-451, because he participated in it as a federal appeals court judge. In an unusual move, five months after the Supreme Court heard the New Jersey case, Rhode Island, Relentless Inc. v. Department of Commerce, agreed to hear a nearly identical case, No. 22-1219.
This may be a sign that the court wanted to include nine members as it considered whether to overturn a major precedent.
These cases have one unusual feature, as Ms. Preloger pointed out. a brief rescue chevron, “In practice, the monitoring provisions of the 2020 rule have had no financial impact on regulated vessels,” the brief says, adding that the program was suspended last year and the agency has reimbursed the monitoring costs incurred under it. Was reimbursed.
The fishermen are represented by two conservative groups, cause of action institution And this New Civil Liberties Alliance, Both have financial ties to a network of foundations and advocacy organizations funded by billionaire Charles Koch, who has long supported conservative and liberal causes.
The judges debated the practical impact of their final decision, expected by June, with some saying Chevron had already largely fallen out of favor.
“How realistic is this question at the grassroots level?” Chief Justice John G. Roberts Jr. asked Roman Martinez, a lawyer for the Rhode Island fishermen, noting that the Supreme Court has not decided a case using the doctrine in years.
Mr. Martínez said lower courts continue to decide cases under Chevron, as had the cases before the court.
The judges were also concerned about whether overturning the decision would lead to numerous challenges to earlier decisions under the doctrine. “Isn’t the door open for litigants to come back?” Justice Amy Coney Barrett asked, “Isn’t this inviting a flood of litigation?”