The conservative-controlled Supreme Court could upend how courts handle challenges to the decisions administrative agencies make, in a pair of cases set for oral arguments Wednesday that could change the standards for how Congress writes laws and the federal government implements them.
The challengers to a fishery inspection rule asked the justices to overturn the Chevron doctrine, a nearly 40-year-old legal framework based on a Supreme Court decision that established that judges should defer to the agencies’ interpretations of a law when that law is ambiguous.
Parts of the conservative legal movement have targeted the doctrine for years, casting it as emblematic of the broader power of administrative agencies, and Wednesday’s oral arguments could preview its demise.
Groups on both sides of the doctrine tend to talk about the case in cataclysmic terms because of the ways it could ripple through American law — changing the balance between those fighting government agencies, the agencies themselves and the courts overseeing the disputes.
The doctrine is “patently unfair” according to Relentless Inc. and the other fishing companies challenging the fishery inspection rule at the heart of the case. By deferring to administrative agencies whenever a statute is ambiguous, the Supreme Court introduced “systemic bias” in favor of the government, the challengers told the justices in a court brief.
That has also distorted the power of the presidency, they argued, resulting in wild swings in policy every time a new administration gains the power to interpret the same set of laws.
“In that world, political actors have little incentive to labor over legislative compromises in Congress; far better to hope for the presidency and swing for the fences,” the Relentless brief said.
On the other side, the Biden administration has said in court fillings that overturning Chevron could mean a “convulsive shock to the legal system” that would disrupt how federal rulemaking has worked for nearly four decades. Courts have used the Chevron doctrine to dispense with thousands of cases on everything from hospital pricing to Social Security benefits, the government said, and overturning Chevron could throw that into question.
“Given its central importance, overruling Chevron would threaten substantial disruption in federal programs such as Social Security and would upset settled expectations in virtually every area of federal law,” the brief said.
The Biden administration argued that opening agency rules up for more judicial interpretation would only result in more inconsistency nationwide as hundreds of individual judges opine on nationwide rules.
Courts have relied on the doctrine in thousands of cases, and both Congress and regulatory agencies have counted on its existence, the administration said. Congress could have done away with Chevron at any time, but has not.
Fishy cases
In the two cases Wednesday, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, the challengers asked the court to overturn the Chevron doctrine that the federal appeals courts for the District of Columbia and 1st circuits used to uphold the fishery inspection rule.
Relentless and the other challengers argued the Commerce Department never received congressional authorization for the challenged rule, which requires companies pay the salaries of compliance observers on their boats.
Both sides of the case agree the justices have relied less and less on the Chevron doctrine in recent years — last citing it to decide a case in 2016. The doctrine stems from a 1984 Supreme Court case, Chevron USA Inc. v. Natural Resources Defense Council Inc.
The court will likely decide the case before the end of its term in June.
Several experts said that, although the court took up the case directly challenging Chevron, they may not end up going all the way. That’s partially because they have to muster five votes not just to overturn the doctrine but decide what comes next.
Kristin Hickman, a University of Minnesota law professor, said at a Federalist Society event last week that without a clear decision about how to frame administrative law post-Chevron, the court could end up punting.
“There are lots of different ways the court could resolve the question even though the court has teed it up as repealing Chevron or addressing the doctrine,” Hickman said.
Hickman said that the court could run into trouble when trying to parse out how to approach the difference between courts deciding what a law means and courts effectively deciding policy outcomes.
“The line between interpretation and policymaking is very, very blurry. The line between legislating and executing at a certain level at the margin is very blurry,” she said.
The doctrine has been a conservative target for years, and the cases slated for Wednesday attracted the support of several conservative outside groups as well as Republican members of Congress.
Before Speaker Mike Johnson, R-La., took over the House last year, he signed onto a brief in the case along with Sen. Ted Cruz, R-Texas, and 34 House members arguing for the court to overturn the doctrine.
The group argued that the Chevron doctrine short-circuited the way government is supposed to work by putting agencies in charge of the laws they were supposed to follow.
“Eliminating Chevron deference would have a significant stabilizing effect on the law, as courts would once again become the independent arbiters of the statutory boundaries of agency discretion, and executive agencies would have to comply with those interpretations, rather than enjoying an incentive to issue drastically different regulations each time the political winds change,” the brief said.
Republicans have long targeted the Chevron doctrine, frequently introducing legislation like the REINS Act from Rep. Kat Cammack, R-Fla., this Congress. The Republican-controlled House passed the measure on a 221-210 vote last June, sending it to the closely divided Senate where it has stagnated in each Congress.
Congressional onus
Numerous legal scholars have argued the doctrine puts too much emphasis on the executive branch’s judgment of a law, rather than putting the onus on Congress to clearly state what agencies are allowed to do. Columbia Law School professor Philip Hamburger said at the Federalist Society event that the justices should not “twist themselves into a pretzel” to accommodate programs Congress never wrote into statute.
“Congress just has to expressly authorize the transfer of power to a legislative agency, it is just a few words,” Hamburger said. “Just let Congress speak. It is easy.”
But that approach may overly simplify the task for Congress to keep up with agencies like the Centers for Medicare and Medicaid Services, according to Sarah Somers, the legal director of the National Health Law Program. The federal government issues dozens of rulemakings on pricing and eligibility each year within CMS alone, Somers said at a Center for American Progress event last week.
“They don’t have the time to draft and update and amend and modify the Medicaid and Medicare statutes to address every single aspect of the program. There’s just not enough hours in the day or people on the ground,” Somers said. “It’s just not really practical to say, well, Congress should do their job.”
The court, currently controlled 6-3 by Republican appointees, has already issued several decisions that clipped the power of administrative agencies. The justices also took on several other cases this term that could restrict federal agency funding and the ability to use internal administrative judges to police rule-breaking.
In the past several years, a majority of the court has also used the “major questions” doctrine to invalidate major Biden administration efforts like greenhouse gas rules and student loan forgiveness.
That doctrine, first rolled out by Chief Justice John G. Roberts Jr. in the greenhouse gas case, holds that Congress must clearly authorize agencies to take actions on “major questions” of political or economic importance.
In a concurring opinion in a case last year, Justice Amy Coney Barrett wrote the major questions doctrine imposes a “clarity tax” on Congress.
The Biden administration also argued that the court’s other approach to administrative law, the major questions doctrine, already limits the scope of the Chevron doctrine.
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