The Supreme Court finishes its current round of hearings today with two cases that might simultaneously make Congress’s writing of new laws harder and make federal government agencies noticeably weaker.  If that is the outcome, it would be one of the biggest shifts in government power since the 1930s, making this one of the Court’s truly historic constitutional tests.

Wednesday’s hearings:  Relentless, Inc. v. U.S. Department of Commerce, followed by Loper Bright Enterprise v. Gina Raimondo, U.S. Secretary of Commerce  Both cases raise the same legal issue, but they are being heard separately because Justice Jackson is taking part in the first but not the second.  (More on that later.)  Each hearing is scheduled for one hour; the first begins at 10 a.m.

Background:  Conservative activists and academics have been yearning, since 1935, for the Supreme Court to revive one of the doctrines that spelled doom for the New Deal in President Franklin Roosevelt’s first term.  It is called the “non-delegation doctrine.”

It has both humble roots, in an 1825 legal feud between two Kentuckians over which of them owned a piece of property, and deep philosophical origins in the works of the 18^th Century Enlightenment theorist, the Baron de Montesquieu – especially, the Frenchman’s insistence that the powers of government must be divided to protect individual liberty.

The Kentuckians’ dispute led to an 1825 decision by the Supreme Court, Wayman v. Southard.  Written by America’s most famous Chief Justice, John Marshall, that ruling spelled out for the first time the constitutional principle that Congress’s power to legislate cannot be delegated to either of the other two branches – the Presidency/Executive Branch or the courts.  The Wayman precedent even today figures in the pleas of conservatives to restore a rigorous version of the non-delegation doctrine.

Montesquieu’s contribution to American governance is that his separation of powers argument was a basic principle embraced by those who wrote the U.S. Constitution – especially, that influential Virginian, James Madison (outlined fully in his Federalist Paper No. 47, citing Montesquieu).  That close link between divided powers and human liberty still gives the doctrine a respectable stature, especially among conservative activists in their devotion to small government.

After Marshall defined the power in 1825, the Court did not thereafter require a rigid enforcement of a concept of separated powers.  In a landmark 1928 ruling, in a tariff case (J.W. Hampton Jr. & Co. v. United States), the Court clarified that Congress could delegate some of its powers to Executive Branch agencies, provided it kept them within bounds by instructing them with “an intelligible principle” on how to carry out that authority.

It was seven years after that, however, that the Court made the boldest use of the doctrine – and these rulings were the only ones in history, and the last ones, to strike down a federal law as an unconstitutional delegation of Congress’s power to legislate.  In January and May of 1935, the Court issued decisions in the so-called “hot oil” and “sick chicken” cases (Panama Refining v. Ryan and Schechter Poultry v. United States).  Those rulings nullified key parts of the New Deal, to restore competition to industry after the collapse of business and the stock market in the Great Depression.

Combined with rulings in 1936 against other parts of the New Deal, based on different constitutional theories, the Court was confronted in 1937 by the gravest threat in history to its powers.  President Roosevelt, after winning reelection overwhelmingly in November 1936, shortly began a direct challenge to the Court.  He asked Congress to “pack the Court” – to add as many as six new Justices – to neutralize its conservative majority.  The plan was widely unpopular and its ultimate defeat in the Senate was costly for Roosevelt politically.  His Democratic Party lost many seats in Congress in the 1938 elections.

In the meantime, though, the Court had turned direction, and began upholding at least some of Roosevelt’s New Deal.  He did have a major impact on the Court, ultimately naming eight Justices.

After that historic controversy, some lower federal and state courts would continue to nullify some laws using the non-delegation doctrine, but the Supreme Court never again would do so.   Some scholars even pronounced its death as a mode the Supreme Court would use to interpret federal laws.

The history behind the two hearings the Justices will hold today turns next to 1984 and a decision by the Court that has lingered, for 40 years, as a deep irritant to conservative activists, organizations and scholars.  That is the case of Chevron USA v. Natural Resources Defense Council, described by some analysts as a revolution in the power of federal government agencies.

The questions before the Court in both hearings today: Will the Court overrule the Chevron decision outright, or at least narrow its scope?

The Chevron precedent:  If the two historic decisions by the Court in the first half of 1935 demonstrated the triumph of the non-delegation doctrine and the immense power of the Court as a constitutional check on the still-growing national government, the Chevron decision by the Court on June 25, 1984, seemed to prove the opposite on both points.

First, it provided strong support for the idea that the non-delegation doctrine had, in fact, lost its vitality even if it were not actually dead.  Second, it marked an unmistakable shift of the power to decide how to interpret Congress’s actions, from the judiciary to the federal administrative agencies.

While the Court’s most famous decision, the 1803 opinion in Marbury v. Madison, had declared that it was the judiciary’s duty “to say what the law is,” one prominent legal scholar has called the Chevron decision “the counter Marbury” for the government’s administrative agencies.

The facts and the law in the Chevron decision:  The case did not start out as a grand constitutional adventure.  Instead, it was factually only about a rule adopted in 1981 by the then-new Reagan Administration, seeking to make it easier for companies that were polluting the skies to comply with federal air quality standards written by the U.S. Environmental Protection Agency under laws passed by Congress in 1970 and 1977.

The Reagan EPA rule permitted industrial plants to satisfy air quality standards on a plant-wide basis, instead of doing so for each device that was a pollution source – a major cost saving.

The enduring part of Chevron doctrine is not that the Court upheld the EPA rule and the use of the plant-wide mode of keeping pollution in check.  Rather, it was the two-step procedure that the Court spelled out on how federal courts were to interpret laws assigning tasks to administrative agencies.

If such a law is clear and straightforward, a judgment made by the court at “step one,” then the law was binding and the agency was obliged to obey it in full.  But if a court, at that step, were to conclude that what Congress had passed was ambiguous, the court was then required to defer to how the agency interpreted the law, if its approach was “reasonable.”

The decision overturned a ruling against the EPA by a federal appeals court in Washington, D.C.  That court ruled that the plant-wide approach would only maintain existing air quality in the area, but the laws required that facilities must be modified to improve air quality.  The Supreme Court, however, upheld the plant-wide rule, calling it a “permissible” interpretation of the Clean Air Act’s regulation of fixed sources of pollution.

The aftermath of the Chevron decision:  In the 40 years since Chevron was decided, its impact has continued to grow.  It has contributed importantly to a vast increase in the power of the federal agencies.  It has been cited as authority by legal scholars as often as the venerable Marbury precedent.

Even so, the decision has never been without severe critics.  One of their arguments is that it is a weak precedent; the case was decided by a Court of only six Justices – the minimum the law requires for the Court to rule.  Two Justices had been ill when the case was heard and stayed out of it, and a third dropped out after becoming aware of a personal holding in one of the firms involved.

In recent years, critics have focused much of their complaint on the vagueness of the idea that Congress can delegate its powers to other branches of government if it gives them “an intelligible principle” to limit their discretion – the concept first spelled out in that 1928 tariff ruling.

Four years ago, three of the Court’s conservative Justices issued a provocative dissent that roundly criticized the “intelligible principle” idea and suggested that the Court should some day reconsider it.  That 33-page opinion was written by Justice Neil M. Gorsuch, and was supported by Chief Justice John G. Roberts, Jr., and Clarence Thomas.  It was issued in Gundy v. U.S., a case in which lawyers for a man convicted of failing to register as a sex offender relied on the non-delegation doctrine in challenging Justice Department regulations to implement a law passed by Congress in 2006.

The majority, by a 4-to-3 vote, upheld those regulations, relying on the “intelligible principle” concept.  The conservative Justice Samuel A. Alito, Jr., added a fifth vote to support the result (but not the reasoning).  In a brief opinion, he said that, if a majority would come together to consider again using non-delegation doctrine, he would support that.  He referred to the 84-year history since the Court had last invoked that doctrine – the two decisions in 1935 against the New Deal.

There was only an eight-Justice Court for the Gundy decision because Justice Brett M. Kavanaugh had joined the Court after that case had been heard, and took no part.

Because the non-delegation doctrine and the “Chevron” decision are so much at odds, that 1984 precedent would be endangered if the Court were to return to imposing the limits that non-delegation theory puts on Congress and administrative agencies.

It thus seems highly likely that the Chief Justice and Justices Alito, Gorsuch and Thomas voted last May and then again last October to grant review of today’s two cases, seeking directly the overruling of the Chevron precedent.  The Court does not reveal how the Justices vote on adding cases for review.  Other Justices, too, may have been willing to hear the issue.

There is an interesting historical coincidence about Justice Gorsuch taking the lead in urging the Court to venture into this abiding controversy.  His mother, the late Anne McGill Gorsuch, was the administrator of the Environmental Protection Agency in 1981 when it issued the regulation that the Court upheld in the Chevron case.  Indeed, when that case was before a lower appeals court, it was titled Natural Resources Defense Council v. Gorsuch.  It seems unlikely, though, that Gorsuch’s tie to his family has any direct effect on his views in this field; his reasons are laid out fully in those 33 pages from four years ago.

Another curious fact about these cases is the role of Justice Ketanji Brown Jackson, taking part in one but not both of the cases being heard today.  That relates to the timing of these two cases as they made their way to the Court.  The first to reach the Court on this controversy was the appeal in Loper Bright Enterprises v. Secretary of Commerce Gina Raimondo.  When the Court agreed last May to review that case, its order noted that Justice Jackson did not take part

She stood aside, it appears, because she had been a judge on the appeals court that had heard the Loper Bright case but had been named a Justice and left that court before a decision emerged. She will not take part in the hearing or decision of that case.

Meanwhile, the case of Relentless, Inc. v. Commerce Department had been appealed to the Court from a different appeals court.  In October, the Court accepted that case, too — apparently wishing to have a full bench for such an important dispute, in one of the two cases.  Today, with all nine Justices on the bench, the Court will hear the Relentless appeal first.  Justice Jackson will then leave the bench, and the Court will turn to the Loper Bright case without her.

The Relentless and Loper Bright cases:  Neither case had previously seemed to have any chance of review by the Justices, since the Court had several times over the past three years refused to hear the very same issue about Chevron’s continued vitality as a precedent.

In both cases, the appeals had raised two questions for the Court to review: overrule or narrow the Chevron precedent, or clarify the meaning of the federal law at issue in both cases.  The Court opted to hear only the challenges to Chevron, making its intention fully clear.

Because the Court is focusing on Chevron, it may be of only passing interest that both cases involve challenges to how the Commerce Department is enforcing a 1976 federal law that governs the operations of herring fishing boats off the New England coast.

The federal government has been regulating commercial fishing vessels off the nation’s shores since Congress in 1792 first required such vessels to register with the government.  Prior to 1976, however, offshore fishing was regulated by a patchwork of laws and rules, which had not stopped heavy over-fishing of coastal waters.

Congress sought to correct that, enacting the Magnuson-Stevens Fishery Conservation and Management Act in 1976.  Among its other provisions, the Act provides that one or more observers be kept on board offshore fishing vessels, to gather data to help prevent over-fishing in those waters.  The federal government provides some funds to pay those observers, but those do not cover the full cost.

For herring vessels operating in the Atlantic, regulations issued in 2020 by the Commerce Department seek to make sure that those observers get paid. Those provisions set targets for the number of monitors to be used, and specify that vessel operators – unless they qualify for waivers or exemptions – must pay the salaries of observers not funded by the federal government.

The Department conceded that some data showed that the regulations may require herring fishing vessels to use up to 20 percent of their revenue to cover those costs, depending upon waivers or exemptions in individual cases.  But the Department now insists that, with the regulations in actual effect, there has been no financial impact on the vessel operators.

The two companies whose names now are in the titles of the cases, joined by affiliated or similar firms, are small operators of herring fishing boats operating primarily off the New England coast.  They sued in federal courts – Relentless in Rhode Island, Loper Bright in Washington, D.C.  After both of them lost in lower appeals courts, each pursued its own appeal to the Supreme Court.  The Commerce Department is defending the regulations and is urging the Justices to leave the Chevron precedent intact.

Besides challenging the Chevron ruling, each appeal had raised a second question, arguing that while the 1976 law does mandate that observers be on board vessels to monitor operations, the law is silent on any obligation of the vessel operators to pay the salaries of those on-board agents of the government.  The Court bypassed that issue.

Significance:  The most important aspect of these cases is that, if the Chevron doctrine is cast aside, Congress will have to find ways to write laws governing the agencies with more clarity – something that is hard to do amid necessary compromises in legislating by closely divided chambers.  But the greatest shift would be away from those agencies to the federal courts in interpreting federal laws.

The Court’s dominant majority of six conservative Justices has recently begun reclaiming for the courts the task of checking the power of administrative agencies.  It has done so by applying what it calls a “major questions doctrine.”  If an agency adopts policies that sweep broadly across the nation or the economy, that doctrine mandates that Congress must have given specific authority for such initiatives.  The Court applied that approach in striking down Biden Administration programs on covid vaccinations,  student loan debt relief, and power plant air pollution controls.

In addition, any time the Court gives any sign that it is prepared to reconsider, and maybe overrule, one of its major precedents, it is a potentially historic development.  The Court’s current majority has shown some willingness to do that, by overruling prior decisions on abortion rights and the use of race in college admissions.

It is still probably true that the Court does not do that lightly, but that it does it at all is significant.  Since 1789, by one calculation, the Court has decided nearly 26,000 cases in its history, but has overruled its own decisions only 147 times.

The late Justice Louis Brandeis is famous for many quotations, but among those most often remembered came in a dissenting opinion in 1932 in an income tax case, Burnet v. Coronado Oil Co.  Discussing the Latin phrase that encourages courts to respect precedents, Brandeis wrote: “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”

Justice Alito, who wrote the Court’s majority opinion in 2022 in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade on abortion rights, quoted Brandeis and then added: “But when it comes to the interpretation of the Constitution…we place a high value on having the matter set right.”

If the Court, after pondering today’s cases, is not yet ready to do away with Chevron altogether, it could settle for something less by interpreting the text of the fishery monitoring law more narrowly than lower courts had.  It may give some hint of its leaning today, especially in the first hearing.

The Court will broadcast “live” (only the audio, no audio) of both cases 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