Much of the nation may now be following the Supreme Court as it explores the historic constitutional and political consequences of the January 6, 2021, attack on the U.S. Capitol – especially the consequences for former President Donald Trump.
But there is “another” Court, so to speak – one not focused on Trump – and it will be back on the bench to resume hearings on the workload it had already assigned itself for this term. Tomorrow marks the end of a four-week holiday and winter break.
The Court has scheduled nine cases for hearings over the next two weeks. Those set for tomorrow are quite narrow in scope, so will be discussed only briefly here. But there is one pair of cases, scheduled for back-to-back hearings on January 17, that should be singled out. Those cases far overshadow everything else during this sitting of the Court; they are, in fact, among the most significant of this term.
That controversy will be explained and analyzed more fully in this space, closer to that mid-January hearing date. For now, a brief look at that dispute’s broad significance.
Those key cases are Relentless Inc. v. U.S. Commerce Department and Loper Bright Enterprises v. Gina Raimondo, U.S. Secretary of Commerce. The cases are to be heard separately even though the issue is the same.
One of the most conspicuous features of the work of the Court’s now-dominant majority of six conservative Justices is an energetic project of paring down the sweeping powers exercised by the agencies of the federal government. This might well qualify as a modern revolution in governance. This resurgence of a conservative orthodoxy recalls the Court of the 1930s, stalling or frustrating much of President Franklin Roosevelt’s ambitious New Deal seeking to help the nation overcome the Great Depression.
The Justices in today’s majority explain this ambition in somewhat different ways, but at its core it is based upon a strong demand that, if Congress has not written very explicit instructions on how an agency may carry out its wide-ranging policy options, those will not be allowed to continue.
That approach was well illustrated when the conservative majority struck down broad initiatives by the federal government to require covid vaccination in major factories, to rigorously regulate power plants’ air pollution, and to provide generous forgiveness of college students’ loan debt.
Moving on, the Court has now assigned itself the task of reconsidering – and perhaps casting aside altogether — a 1983 decision that has long been roundly criticized by conservatives in the legal academy and by major business corporations and their lobbyists. It is the 40-year-old precedent, Chevron USA v. Natural Resources Defense Council.
The most important part of that decision is its mandate of a two-step process for courts to use in judging the legality of a federal agency’s policy or regulation. The first step is a test of whether the wording used by Congress to empower an agency to act is clear or is ambiguous. If the text is clear, and the agency is adhering to that, there is no second step; the policy is valid. But if the text is ambiguous, a court is required to accept the agency’s understanding of its own powers.
One obvious effect of this – and it is intentional – is to move more of the task of interpreting federal laws away from the courts and to the bureaucracy. This has been thought to be desirable because of the deep complexity of many modern federal laws administered by specialized agencies.
The Court’s two new cases testing the so-called “Chevron doctrine” began as challenges to a Commerce Department policy regulating the crews on vessels engaged in ocean fishing. The policy was the Department’s way of enforcing a 2007 law.
Two companies, upset by what they believed were the costs of complying with that policy, challenged it in lower courts but lost. Their lawyers asked the Justices to review it. But, significantly, both added a second question: should the 1983 Chevron decision be reconsidered, and the doctrine scuttled altogether or at least sharply narrowed in scope?
The Court accepted review, limiting its plan to the new testing of Chevron. (In the Loper Bright Enterprises case, the newest Justice, Ketanji Brown Jackson, is not taking part because she had been involved with the case in her former post as a federal appeals court judge. So, to make sure that there would be a full Court to reexamine Chevron, the Justices also accepted the second case, involving Relentless Inc., on that point. Although the issues are parallel, the cases will be heard separately so that Justice Jackson can take part in one and not the other.
The Court’s handling of these cases is a clear demonstration of the significance the Court attaches to them.
But those hearings are more than a week away, so more on them next week.
The Justices, in the two hearings tomorrow, will have before them nothing of that broad significance.
First hearing Monday: Campos-Chavez v. U.S. Attorney General Merrick Garland, combined with Garland v. Singh. The cases will be heard together, scheduled for for one hour, starting at 10 a.m..
These two cases, on federal immigration law, test the government’s duty, when it is threatening to deport a non-citizen for failing to show up for a status hearing, to provide that individual with full information about their legal duty and the consequences of failing to appear. Lower courts are split on when and how that information must be provided.
It appears that, quite often, non-citizens who have entered the country illegally can get lost in the U.S. population, stay for years, and drop out of contact with the government. While the law governing deportation can be harsh, Congress often moves to give such individuals a second chance. That is what is at issue here.
Second hearing Monday: Federal Bureau of Investigation v. Fikre. The hearing is schedule for one hour and will begin as soon as the immigration cases have ended.
This is a case about the government’s duty when it faces a demand to remove a person’s name from the “No Fly List” – an FBI list, based on official fears of potential terrorist on airplanes. Airport security officers check passenger lists and inform airlines of those not allowed to fly within, to, from or over the United States.
This case involves a U.S. citizen, Yonas Fikre, who lives in Portland. He wound up on the No Fly List after he went abroad, and officials questioned his alleged ties to a mosque in Portland; he was told he could not return home. He claimed that he was given the option of becoming an FBI informant, but refused.
He later went to Sudan and then to Sweden. He was flown back to the U.S. in a private plane by Swedish authorities, who denied him entry to that country. He has been challenging his ban from flying since 2013, and he ultimately was taken off of the No Fly List in 2016. In the meantime, he had sued the FBI over the listing and, after his name came off the list, he continued to claim in court that he was wronged by the initial listing.
A federal appeals court ruled that he still had a valid legal claim against the FBI, so his lawsuit seeking a remedy could continue. The government filed in court a promise that Fikre would not go back on the list “based on currently available information.” That was not enough to end the case, the appeals court concluded.
The FBI’s lawyers appealed to the Supreme Court, noting that the lower courts are split on just what the government must do in order to close down a lawsuit over a No Fly List controversy. The case before the Court appears to be based largely on the technicality of when a court case becomes a dead letter, when a government policy or rule is changed.
If there is any wider significance, it is that cases like Fikre’s do test the power of the courts to hold the government to a promise it has made to a citizen who seeks firm assurances that a claimed wrong will not be revived or repeated.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt