From abortion to fishing, how the Supreme Court will be challenged on precedent
Kaelan Deese
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A long-standing legal doctrine often criticized by conservatives for providing federal regulators sweeping powers could be on the chopping block for the Supreme Court‘s next term.
The high court announced this week that it will hear a case aimed at taking out a nearly four-decade-old precedent that is known as the 1984 Chevron deference, the notion that courts should defer to reasonable agency interpretations of ambiguities in congressional statutes and that judges should avoid attempting to decipher their own readings of the laws.
SUPREME COURT TAKES CASE FROM FISHERMEN THAT COULD CHECK BIDEN AGENCY POWERS
Legal experts have suggested the case to be argued in the fall 2023 term, Loper Bright Enterprises v. Raimondo, could mark a shake-up to long-standing precedent equitable to last year’s overturning of Roe v. Wade by the 6-3 conservative majority on the high court.
“So we know in the Dobbs case, the abortion case, precedent got pushed aside. Now the question is, should the precedent established by the Chevron case also be pushed aside?” Thomas Cooke, a business law professor at Georgetown University, told the Washington Examiner.
The dispute the justices agreed to consider involves the power of a Commerce Department unit to force herring fishing operations to fund federal monitors on their boats. By taking up Raimondo, the high court will seek to answer what powers Congress gave the department to regulate fisheries.
Cooke said the Chevron deference has led to a pattern of agencies “imposing their own regulations” when Congress leaves ambiguities in statutes governing certain business practices.
“There’s no congressional authority for imposing fees on these fishermen having the monitors on the boats without fees being passed off to the owner, but the agency has decided that’s how it’s going to be handled,” Cooke said.
In recent years, the justices have taken on a series of disputes that appeared to signal the Chevron deference was nearing its retirement but have stopped short of overturning the precedent, typically by solely rejecting regulators’ legal interpretations.
The justices decided a case last June involving Medicare reimbursements in which some Republican-appointed justices signaled that Chevron should be overturned. In a unanimous opinion, the justices ruled against Medicare’s managers without invoking Chevron.
Agreeing to hear Raimondo indicates at least four justices voted to take up the case. Cooke added that at least three justices — Neil Gorsuch, Clarence Thomas, and Samuel Alito — have written on separate instances in favor of paring back Chevron.
Rep. Mike Collins (R-GA), an entrepreneur who has built several companies from the ground up, including a trucking company, told the Washington Examiner he’s passionate about ending “freedom-threatening rulemaking by federal agencies.”
“Time and time again, we have seen the administrative state abuse the rights of Americans with legal interpretations that ignore or defy the legislative intent of Congress,” Collins said.
Republican lawmakers who are critical of the doctrine include Sens. Tom Cotton (R-AR), Marsha Blackburn (R-TN), Kevin Cramer (R-ND), and Ted Cruz (R-TX). They filed a brief in a case last year over veterans benefits that the court declined to take up, though they said the agency assertions of the doctrine “undermined its legitimacy.”
Democratic administrations, including the Biden administration, have relied on the use of Chevron to make mandates on matters concerning energy, environment, and labor.
Meanwhile, experts in the energy sphere have warned that the potential to overturn Chevron could have “catastrophic” legal consequences for administrative agencies, according to Mona Dajani, a prominent global energy lawyer.
Dajani said paring back the deference would lead “to an increase in cases challenging other doctrines that give the federal government implicit authority in court cases.”
“No one exactly loves to have some higher authority coming to impose like a bunch of rules but it’s necessary,” Mona said, adding if Chevron is overturned, “it will make it impossible to anticipate how laws will be applied in every situation.”
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Dajani contends that if the Supreme Court’s recent patterns, such as last year’s curbing of the Environmental Protection Agency’s authority to regulate climate change emissions, is any signal of how the justices might rule, it could mean regulated business would no longer face an “uphill battle” when combating administrative decision.
Cooke said the fishermen’s case will ultimately beg the question: “Have these agencies gone too far in literally becoming legislative bodies in and of themselves?”