Supreme Court liberal justices warn against choking the power of federal agencies

At first glance, it seemed like a curious decision by the Supreme Court to agree to hear arguments on cases involving the financial responsibilities of herring fishing boats.

The cases concerned several fishing companies disgruntled about a 2020 rule, set by the National Marine Fisheries Service, which forced them to pay for government-mandated observers on their boats to monitor for overfishing.

But on closer examination, Loper Bright Enterprises v Raimondo and Relentless Inc v Department of Commerce carry much more consequential weight.

The cases, which are being heard together, could overturn a 40-year-old precedent known as the Chevron Deference – which gives federal agencies the power to set regulations on a wide range of issues.

After more than two hours of oral arguments on Wednesday, it seemed that the majority of conservative justices are poised to do exactly that, or at the very least limit Chevron: An act that could upend how health care, energy, pollution and more are regulated, turning that power over to Congress and the courts instead.

The Chevron Deference, which spawned from the 1984 landmark case Chevron v Natural Resources Inc, is one of the most cited cases in US law.

The case revolved around interpretation of the word “source” in the 1963 Clean Air Act. The act did not define what a “source” of air pollution was, instead leaving the government to interpret that for themselves. But National Resources Inc, an environmental group, stepped in and argued that the government’s interpretation contradicted the purpose of the legislation.

Ultimately, the Supreme Court decided that when a lower court is faced with ambiguous wording, they could defer to an agency’s reasonable interpretation using a two-part test.

That test has been used to resolve countless lawsuits and arguments, including in lower court rulings in Relentless and Loper Bright.

“I see Chevron as doing the very important work of helping courts stay away from policymaking,” Justice Ketanji Brown Jackson said on Wednesday. (Justice Jackson is recused from the Loper Bright case due to her prior involvement but not Relentless.)

“If we take away something like Chevron, the court will suddenly become a policymaker by majority rule or not.”

However, the conservative legal movement has long opposed Chevron because it gives the executive branch of the government more control over regulations.

“In a country that values limited government and the separation of powers, such an extraordinary power should require the clearest of congressional grants,” attorneys for Loper Bright argued in their petition.

Justices Neil Gorsuch, Samuel Alito, Clarence Thomas and Brett Kavanaugh posed questions that seemed to elevate the petitoners’ argument that agencies should not possess the power given by Chevron.

The conservative majority argued that Chevron was unifying, confusing and gave too much power to federal agencies.

But the liberal justices considered how overturning Chevron would upend regulations. Justice Jackson said the lack of direction would lead to “impractical and chaotic” litigation on any ambiguous language going forward.

Justice Elena Kagan argued that Chevron Deference was implemented so that Congress wouldn’t have to decide legal questions in unfamiliar areas.

“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,” Justice Kagan said. “And, you know, judges should know what they don’t know.”

The difference in the ruling may come down to Chief Justice John Roberts and Justice Amy Coney Barrett who did not appear to commit one way or the other.

A decision in the case is expected by June.