Conservative Justices Appear Skeptical of Agencies’ Regulatory Power
"Discarding a seminal precedent could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs.
Members of the Supreme Court’s conservative majority seemed inclined on Wednesday to overturn or limit a key precedent that has empowered executive agencies and frustrated business groups hostile to government regulation.
Judging from questions in two hard-fought arguments that lasted a total of more than three and a half hours, the fate of a foundational doctrine of administrative law called Chevron deference appeared to be in peril.
The doctrine takes its name from a 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law. Discarding 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 defer to agencies’ reasonable interpretations of ambiguous statutes. In close cases, and there are many, the views of the agency take priority even if courts might have ruled differently.
Overruling Chevron, Solicitor General Elizabeth B. Prelogar told the justices in defending the doctrine, would be an “unwarranted shock to the legal system.”
Justice Brett M. Kavanaugh responded that “the reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in.” He said the doctrine affected laws on securities, antitrust, communications and the environment.
Other conservative justices said courts must use the ordinary tools of statutory interpretation to decide what laws mean without giving decisive weight to agencies’ views. The court’s three liberal members, by contrast, said agencies were often in a better position than courts to interpret ambiguous statutes in their areas of expertise.
Justice Ketanji Brown Jackson said Congress had given some policy choices to the agencies. “And my concern,” she said, “is that if we take away something like Chevron, the court will then suddenly become policymaker.”
The cases the justices considered were brought on behalf of two sets of fishermen, one in New Jersey and the other in Rhode Island. They objected to a maritime agency’s interpretation of a 1976 law that requires them to carry observers to gather data to prevent overfishing.
The contested interpretation, set out in a 2020 regulation adopted by the National Marine Fisheries Service, required the fishermen not only to transport the observers but also to pay for them, at a rate of about $700 a day.
The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the regulation in the case from New Jersey, citing Chevron.
“Congress has delegated broad authority to an agency with expertise and experience within a specific industry,” Judge Judith Rogers wrote for the majority, adding that “the court’s review thus is limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency’s interpretation is reasonable.”
It was, she wrote. “Although the act may not unambiguously resolve whether the service can require industry-funded monitoring,” she wrote, “the service’s interpretation of the act as allowing it to do so is reasonable.”
A unanimous three-judge panel of the First Circuit said pretty much the same thing in the case from Rhode Island. “At the very least,” Judge William J. Kayatta Jr. wrote for the panel, the agency’s interpretation of the 1976 law was “certainly reasonable.”
Wednesday’s argument featured a host of hypothetical questions. Justice Elena Kagan asked who should decide, for instance, whether a product is a drug or a dietary supplement. The answer, she suggested, was an expert agency.
“It’s best to defer to people who do know, who have had long experience on the ground, who have seen thousands of these kinds of situations,” she said. “And, you know, judges should know what they don’t know.”
Justice Kagan imagined a new statute addressing artificial intelligence, one that would inevitably have gaps and ambiguities.
“Congress can hardly see a week in the future with respect to the subject, let alone a year or a decade in the future,” she said, adding, “Congress knows that this court and lower courts are not competent with respect to deciding all the questions about A.I. that are going to come up in the future.”
Justice Jackson is recused from the New Jersey case, Loper Bright Enterprises v. Raimondo, No. 22-451, having participated in it as a federal appeals court judge. In an unusual move, the Supreme Court agreed to hear a nearly identical case from Rhode Island, Relentless Inc. v. Department of Commerce, No. 22-1219, five months after it agreed to hear the one from New Jersey.
That may have been a sign that the court wanted to have nine members in place as it considers whether to overturn a major precedent.
The cases have an unusual feature, as Ms. Prelogar explained in a brief defending Chevron. “In practice, the 2020 rule’s monitoring provisions have had no financial impact on regulated vessels,” the brief said, adding that the program was suspended last year and that the agency reimbursed the monitoring costs that had been incurred under it.
The fishermen are represented by two conservative groups, Cause of Action Instituteand the New Civil Liberties Alliance. Both have financial ties to the network of foundations and advocacy organizations funded by Charles Koch, a billionaire who has long supported conservative and libertarian causes.
The justices debated the practical impact of their eventual ruling, expected by June, with some saying that Chevron had already largely fallen out of favor.
“How much of an actual question on the ground is this?” Chief Justice John G. Roberts Jr. asked Roman Martinez, a lawyer for the Rhode Island fishermen, noting that the Supreme Court had not decided a case using the doctrine in years.
Mr. Martinez said lower courts continued to decide cases under Chevron, as happened in the cases before the court.
The justices were also concerned about whether a decision overturning the decision would give rise to countless challenges to earlier rulings under the doctrine. “Isn’t the door then open for litigants to come back?” Justice Amy Coney Barrett asked, adding, “Isn’t it inviting a flood of litigation?”