In a sweeping and historic new claim to judicial supremacy within the national government, a divided Supreme Court on Friday ruled that the courts – not federal agencies – have the last word on those agencies’ powers.

Just because an agency’s grant of authority from Congress is ambiguous or unclear, the Court’s conservative majority declared, does not allow that agency to fill in the gaps and claim new or broader powers.  It is the task of the courts to define what the law creating that agency allows it to do, the decision written by Chief Justice John G. Roberts proclaimed.

This was a rather brash echo of the comment made in 1803 by Chief Justice John Marshall that “it is emphatically the province and duty of the judicial department to say what the law is.” It also was a modern echo of the Court’s repeated rejection in the 1930s of President Franklin Roosevelt’s New Deal remedies for the Great Depression.

In today’s legal world, the new decision will be deeply satisfying to legions of conservative academics and practitioners who have waged an unending challenge to the actions of what they call the “unelected fourth branch of government” – the federal regulatory agencies that technically are part of the Executive Branch but have significant independence.

The Court’s dominant bloc of six conservative Justices have given new life to that challenge by a number of rulings – especially against pollution controls and anti-covid workplace safety rules.  Friday’ ruling, though, goes the furthest of anything that this majority has yet done.

Another champion of curbing the federal bureaucracy is former President Donald Trump, who with his allies has pursued a robust challenge to what they have called the “Deep State.”  If he is elected President again, he has vowed a more rigorous effort to undo government regulation.

Friday’s ruling came in the case of Loper Bright Enterprises v. U.S. Secretary of Commerce Gina Raimondo.  The case involved a challenge to the Commerce Department’s view of its own authority to regulate the fishery industry.  The Court used that challenge to overrule a famous 1984 decision, Chevron v. Natural Resources Defense Council.

The Chevron ruling required federal courts to defer to a federal agency’s view of the extent of its own powers, if the law passed by Congress to govern that agency was ambiguous.  The new ruling cast that precedent aside, saying that federal law governing the powers of those agencies is to be interpreted by the courts, not the agencies.

The decision made an attempt to ease the blow of the ruling by declaring that past cases in which agencies have been allowed to define their powers will not be undone.  That will mean that the decision will go far toward restricting agency authority in the future, likely resulting in a whole range of new court challenges to agency powers.  As an example, the Court is now examining a new case that seeks to strike down the powers of the Occupational Safety and Health Administration – an agency with broad powers over workplaces across the country.

The Chief Justice’s opinion was supported by Justices Samuel A. Alito, Amy Coney Barrett, Brett M. Kavanaugh, Neil M. Gorsuch and Clarence Thomas.  Roberts based the ruling primarily on the meaning of a federal law governing how the government agencies used their powers – the Administrative Procedure Act, passed in 1946.  Because the Roberts opinion was keyed to a federal statute, Congress could amend it if it wished to enhance agency powers over their own authority.  The majority opinion had some language hinting that the Constitution may also have counseled against the Chevron decision that is now overruled, but was not based on that in a binding way.

Gorsuch and Thomas also wrote separate opinions, giving added reasons of their own for not keeping the 1984 Chevron decision intact.

Justice Elena Kagan wrote a dissenting opinion for the Court’s three liberal Justices — herself and Ketanji Brown Jackson and Sonia Sotomayor.  The dissenters accused the majority of grasping for more power for itself and setting itself up as the “czar” of all administrative law.

The ruling was issued as the Court moved further toward ending its term in a matter of days..  The last day of decisions will be next Monday, when the Justices are expected to act on former President Trump’s claim of total immunity to criminal charges.  Another criminal case against Trump may be affected by another decision by the Justices on Friday.  That is discussed in a separate post on this site.