Who decides? That was the oft-repeated refrain from members of the Supreme Court on Wednesday, in a major dispute over the power of the federal administrative state.
At issue is the discretion of the Executive Branch to interpret and enforce congressional laws over a range of areas like the environment, health care, workplace safety, and consumer protections.
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A majority of conservative justices appeared ready to limit, but not entirely overturn, what has become known as “Chevron” deference — a 1984 high court precedent that says when congressional laws are “ambiguous” — federal judges should typically defer to “reasonable” federal agency interpretations.
That has since been used thousands of times by federal courts, including more than 70 Supreme Court cases to allow wide latitude over an agency’s power — spanning more than 170 pages of federal regulations. That tension between preserving the separate, but equal powers of the three government branches was at the heart of the appeals.
Members of the Supreme Court Associate Justices Amy Coney Barrett, left, Neil M. Gorsuch, Sonia Sotomayor, Clarence Thomas; Chief Justice John G. Roberts, Jr.; Associate Justices Ketanji Brown Jackson, Samuel A. Alito, Jr., Elena Kagan and Brett M. Kavanaugh. (Collection of the Supreme Court of the United States via Getty Images/File)
It has been billed as a fight between what one side calls unchecked government overreach and others see as necessary protection of a broad swath of federal agency oversight.
The lengthy arguments in two separate cases had the justices questioning their own authority.
“How do we determine how much deference is too much deference?” asked Justice Clarence Thomas. “How do we know where the line is?”
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Some conservative justices suggested the time to overturn the Chevron precedent was now.
“Maybe a dozen or more circuit judges have written asking us to overrule Chevron,” said Justice Neil Gorsuch. “And should that be a clue that something needs to be fixed here, that even the federal government at the podium can’t answer the question what triggers ambiguity?”
Chief Justice John Roberts, left, joins Associate Justices Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson for President Biden’s State of the Union address during a joint session of Congress at the U.S. Capitol, Feb. 7, 2023, in Washington, D.C. (Chip Somodevilla/Getty Images/File)
But others on the bench expressed concern that overturning the current system of agency statutory interpretation would put judges in the uncomfortable position of making policy — something that is left to the political branches.
“A new product designed to promote healthy cholesterol levels — is it a dietary supplement or a drug?” said Justice Elena Kagan, using a hypothetical. “I would rather have people at HHS [Health and Human Services Department] telling me whether this new product was a dietary supplement or a drug.”
“Judges should know what they don’t know,” added Kagan.
The high court heard two separate appeals involving the same issue: whether Atlantic herring fishermen must pay for federal officials to board their vessels to monitor the catches and collect data.
The National Oceanic and Atmospheric Administration (NOAA) implemented a revised federal mandate in 2020, even though Congress never gave the agency-specific authority to launch such a program.
Members of the New England Fishermen’s Stewardship Association hold signs outside the Supreme Court on Wednesday in Washington, D.C. (New Civil Liberties Alliance and Cause of Action)
The owners say the fees can exceed $700 daily and often exceed the money earned from catching low-priced herring. NOAA has waived the rule temporarily, saying it ran short of funds to administer the monitoring program.
“I’m concerned that it will make it harder, for sure,” Bill Bright, who runs his family seafood business Loper Bright Enterprises, told Fox News. The Cape May, New Jersey company is among those suing. “We’re survivors as an industry, but it’s certainly not going to make it any easier, adding more expense to it.”
The fishing fleets and business groups say their livelihoods are being threatened by onerous, expensive regulations that Congress did not specifically authorize. They say judges, not federal bureaucrats, should be interpreting what are admittedly often ambiguous congressional statutes.
In arguments, their lawyers for the small business people said you need a “secret decoder ring” to figure out what the Chevron deference precedent means.
Gorsuch called it a “recipe for instability.”
“This is what niggles at so many of the lower court judges,” he said. “You’ve left open the possibility that a judge, if left to his own devices, would say the fairest ruling is in favor of the immigrant, it’s in favor of the veteran, and it’s in favor of the Social Security Disability applicant, but because of a fictionalized statement about what Congress wanted when it didn’t think about the problem, the government always wins.”
Justice Brett Kavanaugh said the courts may be the better forum to decide whether federal laws passed by Congress are ambiguous, given the politics at play.
“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, whether it’s communications law or securities law or competition law or environmental law, and goes from pillar to post.”
Supreme Court Justice Brett Kavanaugh (Reuters Photos/File)
The Biden administration argues those federal agencies have the expertise and mandate to enforce federal laws to ensure consumers and the public have, among other things: clean air and water; safe food and medicine; and stable economic and financial institutions.
Solicitor General Elizabeth Prelogar told the court the fishing industry has long been subject to federal regulation, and that the current rules ensure “necessary and proper” management of limited seafood stocks.
Some left-leaning justices agreed.
“Isn’t it sort of impractical and chaotic to have a world in which every undefined term in a statute is subject to litigation if you’re trying to govern?” asked Justice Ketanji Brown Jackson. “I’m worried about the courts becoming uber legislators.”
Chief Justice John Roberts and Justice Amy Coney Barrett asked tough questions of both sides, at times suggesting a scaled-back ruling — a “course correction” as was suggested in court — narrowly favoring the fishermen, might be the best approach.
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Roberts drew courtroom laughter when he said giving the judiciary too much power might be problematic.
“Judges are used to deciding things, and when they get around to doing it, they tend to think what they’ve come up with is not only the best answer, but it’s the only answer.”
The cases are Relentless, Inc. v. Department of Commerce (22-1219) and Loper Bright Enterprises v. Raimondo (22-451).
Rulings are expected by late June.