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Legal
SUPREME COURT TAKES ON EXECUTIVE BRANCH IN BROAD FIGHT OVER POLICYMAKING POWER
Federal regulations on guns, immigration and clean air could all face renewed
legal challenges.
The Supreme Court will hear arguments Wednesday in a landmark fight over the
authority of federal agencies. | Win McNamee/Getty Images
By Alex Guillén and Josh Gerstein
01/17/2024 05:00 AM EST
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The Supreme Court has been chiseling away at the administrative state for years.
Now it may be poised to take a giant chunk of power away from federal
regulators.
A legal fight over an obscure commercial fishing rule appears to be on the verge
of fulfilling a decadeslong goal of legal conservatives: the demolition of a
legal doctrine used to sustain a vast array of federal government policies
ranging from gun safety to immigration to pollution controls.
The nation’s highest court will spend Wednesday mulling how much deference
judges must give to federal agency regulations and other executive branch
decisions. After more than a decade of pushing from conservatives, the court
appears to be headed toward making it much easier for judges to strike down
policies crafted by federal bureaucrats when the congressional authorization for
those policies isn’t crystal clear.
A broad ruling against agency power would be a potent victory for business
interests and other foes of regulation. And it would be sure to hinder the
policymaking power of Joe Biden and his successors, because presidents —
especially Democrats — have increasingly tried to use ambitious agency
regulations to achieve their goals in the face of a calcified Congress.
At issue is a bedrock principle of administrative law known as Chevron
deference. Named after the 1984 Supreme Court case in which it was articulated,
the doctrine says that when a law Congress has passed is ambiguous, judges
should defer to an agency’s interpretation if it’s reasonable.
Chevron has become one of the high court’s most-cited cases and a regular part
of rulings over government actions. | Noah Berger/AP
The idea was to prevent judges from second-guessing often-technical decisions by
agencies with expertise. In the decades since, Chevron has become one of the
high court’s most-cited cases and a regular part of rulings over government
actions. A group of New York University law students even created a catchy
jingle about it in 2014.
Chevron‘s defenders also argue that Congress lacks the time and expertise to
craft meticulous legislation, and instead frequently passes laws giving agencies
some leeway to adapt to unforeseen situations.
For example, the Clean Air Act requires EPA to write new rules if the agency
determines a pollutant not already regulated is a threat to public health or the
environment. EPA has used the flexibility to target carbon dioxide and other
greenhouse gases that the law doesn’t explicitly mention. Under Chevron
deference, EPA has a stronger legal defense for some climate rules; without it,
the outlook is hazier.
But opponents of the 40-year-old doctrine say it defies the separation of powers
in the Constitution, effectively neutering federal judges and allowing agencies
to aggrandize themselves by becoming the judges of their own actions.
“Judges are supposed to be impartial arbiters of law — not home-team umpires for
the Executive Branch,” anti-Chevron attorneys wrote in a November brief. The
line appears to be designed to appeal to Chief Justice John Roberts, who
famously said during his 2005 confirmation that his job is to “call balls and
strikes and not to pitch or bat.”
The Biden administration has vigorously defended the doctrine, insisting that it
actually respects the separation of powers.
“When a statutory provision is genuinely susceptible of multiple reasonable
readings, choosing among those readings often turns on a policy judgment that
Congress has vested in the agency and that is properly left to the political
Branches,” the Justice Department wrote in its own brief.
Although Chevron deference was named after a case involving environmental
regulations, it has since been applied to virtually every kind of policy
decision across the federal government. Uses in recent years include mine safety
rules, the bump-stock ban, IRS whistleblower awards, veterans’ benefits and
immigration policy.
When courts apply the doctrine, agencies are much more likely to win.
A 2017 study of thousands of circuit court rulings found that agencies won more
than 77 percent of the time under Chevron deference — but just 38 percent of the
time when the courts reviewed actions “de novo,” meaning without any deference
to the agency.
Chevron is still used routinely in the lower courts, but the Supreme Court has
all but abandoned it. The justices haven’t used Chevron to decide a case since
2016, despite having multiple opportunities in the years since.
Still, the court has not formally repudiated the doctrine, never delivering the
coup de grace and instead leaving lower federal judges to try to assess its
vitality.
In some instances, the high court has sidestepped the Chevron debate and
embraced methods of statutory interpretation that cast even greater doubt on
agency powers — most notably the “major questions doctrine,” which had been
growing informally for some time and was formally articulated in the 2022 ruling
that struck down EPA’s climate rule for power plants. The major questions
doctrine requires judges to void agency actions of significant economic or
political impact unless Congress has explicitly authorized them.
Live | legal
Supreme Court handcuffs Biden’s climate efforts
By Alex Guillén | June 30, 2022 10:13 AM
Several of the Supreme Court’s Republican appointees have been open about their
desire to limit, and maybe even overturn, Chevron.
The doctrine “deserves a tombstone no one can miss,” Justice Neil Gorsuch wrote
in 2022. Justice Samuel Alito in 2018 described it as an “increasingly maligned
precedent.” In 2016, Justice Brett Kavanaugh called it “a judicially
orchestrated shift of power from Congress to the Executive Branch.” And in 2015,
Justice Clarence Thomas wrote in a concurrence that “the potentially
unconstitutional delegations we have come to countenance in the name of Chevron
deference” had emboldened EPA to overstep its authority, which Thomas said left
him “alarmed.”
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Even former Justice Anthony Kennedy took a shot at Chevron. Just a month before
he retired in 2018, Kennedy wrote that he had become troubled by the courts
offering agencies “reflexive deference” and called for a reconsideration of the
doctrine.
Overturning Chevron has become something of a crusade for legal activists on the
right in recent years. Billed as reining in the federal bureaucracy, the drive
has unified conservatives, although eliminating Chevron would limit the power of
Republican presidents as well as Democratic ones.
Through numerous Congresses, Republican lawmakers have tried to pass legislation
ending Chevron deference, but have been unable to get it through the Senate.
That failure to override Chevron actually weighs in favor of the Supreme Court
maintaining it, the Biden administration argued.
“Because Congress could alter or eliminate the Chevron framework at any time but
has declined to do so, Chevron is entitled to the particularly strong form of
stare decisis that this Court affords to decisions that Congress could override
by legislation,” it wrote in a December brief. “Stare decisis” is the legal
principle that precedents should generally be respected.
In an unusual argument structure, the court is hearing two cases on Wednesday
making the same argument about the same issue.
The first case the court accepted, Loper Bright Enterprises v. Raimondo, bubbled
up through the U.S. Court of Appeals for the D.C. Circuit, where then-judge
Ketanji Brown Jackson sat on the panel that heard the case before she was
elevated to the Supreme Court. Even though she didn’t participate in the ruling,
Jackson recused herself from the case at the high court and isn’t expected to
participate in the arguments.
Last October, the court accepted another case asking the same legal questions,
Relentless v. Department of Commerce. That appeal came from the U.S. Court of
Appeals for the 1st Circuit, allowing Jackson to join in arguments and to vote
on the ultimate outcome.
Relentless will be argued first, allowing Jackson to take the bench for that
case and then depart when it’s time for the Loper Bright argument.
Both cases ostensibly challenge a National Marine Fisheries Service rule that
required boats to pay for monitors looking for overfishing. But the high court
declined to take up any questions related to the fishing rule, instead choosing
to decide only the legal question of how much — if any — deference judges should
give to the fishing agency’s conclusion that it had the legal authority to act.
* Filed under:
* Environment,
* U.S. Supreme Court,
* Supreme Court Justices,
* Chevron,
* Legal
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* UNDERSTAND AUDIENCES THROUGH STATISTICS OR COMBINATIONS OF DATA FROM
DIFFERENT SOURCES 447 PARTNERS CAN USE THIS PURPOSE
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Reports can be generated based on the combination of data sets (like user
profiles, statistics, market research, analytics data) regarding your
interactions and those of other users with advertising or (non-advertising)
content to identify common characteristics (for instance, to determine which
target audiences are more receptive to an ad campaign or to certain
contents).
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Object to Legitimate Interests Remove Objection
* DEVELOP AND IMPROVE SERVICES 532 PARTNERS CAN USE THIS PURPOSE
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Information about your activity on this service, such as your interaction
with ads or content, can be very helpful to improve products and services and
to build new products and services based on user interactions, the type of
audience, etc. This specific purpose does not include the development or
improvement of user profiles and identifiers.
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Object to Legitimate Interests Remove Objection
* USE LIMITED DATA TO SELECT CONTENT 120 PARTNERS CAN USE THIS PURPOSE
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Content presented to you on this service can be based on limited data, such
as the website or app you are using, your non-precise location, your device
type, or which content you are (or have been) interacting with (for example,
to limit the number of times a video or an article is presented to you).
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Object to Legitimate Interests Remove Objection
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USE PRECISE GEOLOCATION DATA 258 PARTNERS CAN USE THIS PURPOSE
Use precise geolocation data
With your acceptance, your precise location (within a radius of less than 500
metres) may be used in support of the purposes explained in this notice.
List of IAB Vendors
ACTIVELY SCAN DEVICE CHARACTERISTICS FOR IDENTIFICATION 119 PARTNERS CAN USE
THIS PURPOSE
Actively scan device characteristics for identification
With your acceptance, certain characteristics specific to your device might be
requested and used to distinguish it from other devices (such as the installed
fonts or plugins, the resolution of your screen) in support of the purposes
explained in this notice.
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ENSURE SECURITY, PREVENT AND DETECT FRAUD, AND FIX ERRORS 504 PARTNERS CAN USE
THIS PURPOSE
Always Active
Your data can be used to monitor for and prevent unusual and possibly fraudulent
activity (for example, regarding advertising, ad clicks by bots), and ensure
systems and processes work properly and securely. It can also be used to correct
any problems you, the publisher or the advertiser may encounter in the delivery
of content and ads and in your interaction with them.
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DELIVER AND PRESENT ADVERTISING AND CONTENT 492 PARTNERS CAN USE THIS PURPOSE
Always Active
Certain information (like an IP address or device capabilities) is used to
ensure the technical compatibility of the content or advertising, and to
facilitate the transmission of the content or ad to your device.
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MATCH AND COMBINE DATA FROM OTHER DATA SOURCES 351 PARTNERS CAN USE THIS PURPOSE
Always Active
Information about your activity on this service may be matched and combined with
other information relating to you and originating from various sources (for
instance your activity on a separate online service, your use of a loyalty card
in-store, or your answers to a survey), in support of the purposes explained in
this notice.
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LINK DIFFERENT DEVICES 327 PARTNERS CAN USE THIS PURPOSE
Always Active
In support of the purposes explained in this notice, your device might be
considered as likely linked to other devices that belong to you or your
household (for instance because you are logged in to the same service on both
your phone and your computer, or because you may use the same Internet
connection on both devices).
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IDENTIFY DEVICES BASED ON INFORMATION TRANSMITTED AUTOMATICALLY 477 PARTNERS CAN
USE THIS PURPOSE
Always Active
Your device might be distinguished from other devices based on information it
automatically sends when accessing the Internet (for instance, the IP address of
your Internet connection or the type of browser you are using) in support of the
purposes exposed in this notice.
List of IAB Vendors
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