Just one year after the Supreme Court’s conservative majority rolled out a new constitutional way to narrow the power of federal government agencies, the Court voted on Monday to consider endorsing another.
At issue in a new case that will be reviewed in the Court’s new term starting in October is whether the Justices will overrule a 39-year-old precedent that gave the nation’s Executive Branch sweeping authority to decide how to carry out laws passed by Congress.
The brief order left no doubt that the Court intended explicitly to consider casting aside or sharply limiting that precedent: it had the option of taking on a much narrow question, and opted instead to focus on the broader issue raised in a new appeal involving federal power over offshore fishing.
Moreover, it agreed to review that broad question after repeatedly refusing to do so in recent years. Overruling prior precedent is one of the rarest things the Supreme Court does, because it usually tries to show deep respect for precedent and for having major issues left settled.
At issue in the new case is the future of the so-called “Chevron doctrine,” meaning the way the 1984 decision in Chevron v. Natural Resources Defense Council spelled out how federal courts should defer to “reasonable” agency rules in enforcing a law that Congress had not spoken clearly in what it meant. That decision upheld a wide-ranging rule of the U.S. Environmental Protection Agency defining sources of air pollution.
When Congress acts, compromises are common, often leaving significant gaps or using ambiguous language in what new laws cover. In allowing federal agencies to fill in those gaps or clarify a law’s scope, the doctrine has ever since been assailed by conservative advocacy groups and academics as creating a modern “deep state” of immense federal authority. Already, even before the Justices’ order on Monday, several of those groups filed pleas urging the Court to step in.
If the Court does wind up casting aside that approach, or significantly narrowing it, it could have an impact matching that of last year’s embrace by the Court’s six-Justice conservative majority of what is called the “major questions doctrine.” It means that, if an agency undertakes a broad policy or program with wide economic of political impact, it must show that Congress explicitly authorized that. Such clarity is not always achieved in federal laws.
The Court majority deployed that doctrine last year to strike down the Biden Administration’s attempt to require large businesses, during the covid pandemic, to vaccinate their workers or frequently test them for covid and a separate program to limit global-warming gases from electricity-generating power plants.
These two new doctrines are replacements for a constitutional approach that the Court had used during the 1930s to strike down major “New Deal” programs adopted by President Franklin Roosevelt’s Administration in coping with the Great Depression.
That prior approach was known as the “non-delegation doctrine,” meaning that the constitutional mandate of keeping the powers of the national government separate from each other dictated that Congress could not hand over to federal agencies the power to draft new rules that were the equivalent of passing new laws.
The last time that doctrine was applied was in 1936, nullifying one of FDR’s major programs to aid agriculture. In the decades since then, the federal government has grown vastly larger, and the number of federal agencies has multiplied.
When former President Donald Trump came into office in 2017, his Administration was determined to challenge what his advisers called the “deep state.” The President vowed that he would name judges who would dismantle that administrative behemoth. Two of the Justices he named to the Court, Neil M. Gorsuch and Brett M. Kavanaugh, have been strong opponents of the “Chevron doctrine.”
It takes only the votes of four Justices, at a minimum, to grant review of a new case. With an issue as controversial as potentially overruling a major prior decision, it was likely that more than four Justices had been willing to take it on.
It may have had some impact on the Court that the issue was raised by one of the most experienced and widely respected Washington lawyers, Paul D. Clement, who regularly takes the most conservative questions to the Court.
His new case, Loper Bright Enterprises v. Commerce Secretary Gina Raimondo, is an appeal by three companies that engage in commercial fishing in coastal waters. They are challenging regulations issued by an agency within the Commerce Department, the National Marine Fisheries Service.
That agency was created by Congress under a 1976 federal law, the Magnuson-Stevens Fishery Conservation and Management Act. The law was passed to try to put an end to over-fishing of offshore waters, to conserve that resource and to protect the businesses and communities that have depended on it. The offshore fishing industry does nearly $5 billion in business a year.
Specifically at issue in the case is a federal rule that requires offshore fishing companies to pay the salaries of federal monitors who must be on board boats to make sure that federal rules are obeyed. The companies contend that this rule costs them 20 percent of their revenue.
The new appeal challenged the salary rule as beyond the scope of the law; that was the first of two questions. The second was the plea for the Court to overrule the Chevron decision, or at least to narrow it so that congressional silence does not make a federal law ambiguous and thus open to agency discretion to make a rule. The Court explicitly chose to review only the second question.
A federal appeals court upheld that rule, although it noted that the federal law involved was silent on that issue. With that silence, that court found, the focus was on whether the salary-payment rule was reasonable under the “Chevron doctrine,” and decided that it was.
The Biden Administration tried to head off Supreme Court review, noting that the Court had several times recently refused to hear challenges to that doctrine.
One interesting sidelight of the Court’s review in what could become a ruling of historic importance is that it will be decided without the participation of the newest Justice, Ketanji Brown Jackson.
She took no part in the Court’s action, because she was a member of the federal appeals court that previously ruled in the case; she heard the case there but had left that court, on her way to the Supreme Court, by the time it was actually decided.
It was her choice to take herself out of the case. That is a matter left to each Justice. Although the case now will only be decided by eight Justices, that might technically raise the possibility of a 4-to-4 split, which would uphold the lower court ruling but without an opinion. However, the fact that the conservative bloc is now composed of six Justices makes such a split quite unlikely.