Supreme Court Considers Case That Could Fundamentally Remake Federal Regulation
Conservative justices seem open to chucking ‘Chevron deference.’
ON WEDNESDAY, THE U.S. SUPREME COURT heard oral argument in a case that may seem boring and wonky, but in fact strikes at the heart of one of the most hotly debated political fights of the last century: whether federal agencies should have the power to regulate.
The case involves a 2020 rule passed by the National Marine Fisheries Service, which requires herring fishermen to pay the daily cost of having federal monitors on boats on the waters of the North Atlantic. The agency, a division of the Department of Commerce, has since suspended the program, reimbursing the fishermen for the fees in the interim—a remedy that makes it glaringly evident that case before the Court, Loper Bright Enterprises v. Raimondo, has nothing to do with the plight of the fishermen. But it has everything to do with the longstanding partisan debate over regulatory policy and who gets to make it. If conservatives on the Supreme Court get their way, a ruling in Loper Bright could shift massive amounts of policymaking power away from executive branch agencies. But it will likely not go to Congress, as conservative commentators hope and urge, but rather to the Supreme Court itself.
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Some background: The fishing boat monitoring requirement stretches back fifty years, stemming from a 1976 statute called the Magnuson-Stevens Act, which governs management of the nation’s fisheries. On a broad range of matters—including food and drug safety, nuclear-waste storage, and environmental policy—Congress creates federal agencies and gives them the power to make regulations, which carry the same force of law as an act of Congress. In the 1930s, the Supreme Court upheld Congress’s power to hand off legislative power to entities that answer to the president, even though in our constitutional system the executive is only supposed to execute the laws, not make them. The Loper Bright case doesn’t challenge that precedent head on but rather asks the Court to overrule one of the most important subsequent Supreme Court cases regarding the separation of powers: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
In that 1984 case, the Supreme Court considered whether the Environmental Protection Agency—which was then headed by Justice Neil Gorsuch’s mother, Anne Gorsuch, under President Ronald Reagan—was functioning within its statutory authority in enacting a rule under the Clean Air Act that essentially benefited polluters. Normally, courts decide questions of law, and the challengers to the EPA’s regulation in that case urged that the Supreme Court determine what the Clean Air Act means. The Supreme Court disagreed, nodding instead to the discretion of the EPA. The Court held that if Congress makes clear in a statute what a particular term means (in Chevron the term under contention was “stationary source”), that’s the end of the case; the EPA and the courts must just follow Congress’s direction. But the act of interpreting laws that authorize regulatory policymaking necessarily involves the consideration of facts and specialized expertise, including how factories that produce pollution actually work. So if Congress leaves a term undefined, the Court reasoned in Chevron, it’s better to defer to an agency’s reading of the term than leave it to judges with no relevant expertise.
GIVEN THAT THE KOCH NETWORK, financed by petrochemical billionaire Charles Koch, is reportedly behind the Loper Bright lawsuit, it will come as no surprise that the case isn’t about a remedy for the fishermen. It’s about who gets to make regulatory policy: Congress and agencies headed by the president, and thus elected through the people, or federal judges who have life tenure and cannot be held accountable at the ballot box. If the conservative majority overrules Chevron—which Justices Gorsuch and Brett Kavanaugh, at a minimum, seem poised to do after oral argument—the new decision-makers won’t be agency personnel who have deep expertise in things like drug labeling, environmental protections, financial markets, the shipping and trucking industries, etc. But while conservatives hope that Congress will step up and fulfill its constitutional role, taking over that responsibility, that hardly seems likely—remember that Congress in 2023 managed to pass only 27 bills into law. Instead, the responsibility will fall upon the people in black robes with no expertise whatsoever.
Justice Elena Kagan opened oral argument with a hypothetical: Imagine a new product that is supposed to promote healthy cholesterol levels. If it’s a dietary supplement, it can be sold without the burden of complying with safety regulations passed by the Federal Drug Administration. If it’s a drug, FDA gets involved. Congress didn’t anticipate creation of this particular product, so the statute doesn’t specify which it is. Should courts decide that?
Lawyers for the Loper Bright challengers responded blithely that courts should decide the “best” reading of the statute. But of course that answer just raises the question: What is “best” and why should unelected federal judges decide that? For Gorsuch and Kavanaugh, it should be judges who do the deciding, on the rationale that presidents have different policy objectives every four years, enabling agencies to change regulatory course wildly based on a particular president’s policy agenda. But isn’t that what elections are for? And in any event, Chevron only applies if agencies go through the more laborious of the smattering of rulemaking processes. It takes years and has many wickets, so it’s not so easy to just change policy on a whim.
Moreover, there are many thousands of regulations and thousands of lower federal court rulings premised on Chevron. When Justice Kagan asked counsel for the fisheries what happens to all of that vast body of precedent, the answer was disconcerting: Unless a ruling is really bad, the lawyer said, nobody will bother with it. Tell that to the losing parties in the slew of major cases in which this Court has recently overruled longstanding constitutional precedent.
Loper Bright is one of the final pieces in the judicial power grab that Senate Minority Leader Mitch McConnell has been playing for years—a play that included denying Obama even a hearing for Merrick Garland, his pick for the Supreme Court, but then maneuvering to put a Trump nominee on the Court despite comparable circumstances. The newly conservative Court has since struck down gun-safety restrictions, rolled back racial discrimination protections and reproductive rights, and in some cases begun to blur or even erase longstanding lines between church and state. Refashioning the regulatory state is another big item on the conservative wish list. But it will likely prove to be not a nod to congressional power but a checkmate on Congress, who created the statute that gave the agency its power in the first place.
The end result? Deregulation that could not happen through Congress or the presidency, but will happen instead through the courts—in ways that could prove profoundly destabilizing for industries and citizens alike.