by Members of the Supreme Court’s conservative majority appeared inclined Wednesday to overturn or limit a key precedent that has empowered executive agencies and frustrated business groups hostile to government regulation.
Judging by the questions asked in two hotly contested arguments that lasted a total of more than three and a half hours, the fate of a fundamental administrative law doctrine called Chevron deference appeared to be in jeopardy.
The doctrine takes its name from a 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law. Scrapping it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from the agencies to Congress and the courts.
Under Chevron, judges must defer to agencies’ reasonable interpretations of ambiguous statutes. In close cases, and there are many, the agency’s opinions take precedence even if the courts would have ruled differently.
Overturning Chevron, said Attorney General Elizabeth B. Prefacing the justices in defending the doctrine, would be an “unwarranted shock to the legal system.”
Justice Brett M. Kavanaugh responded that “the reality of how this works is that Chevron itself causes shocks to the system every four to eight years when a new administration comes in.” He said the doctrine affected securities, antitrust, communications and environmental laws.
Other conservative justices said courts should use ordinary tools of legal interpretation to decide what laws mean without giving decisive weight to agency opinions. The court’s three liberal members, by contrast, said agencies were often better positioned than courts to interpret ambiguous statutes in their areas of expertise.
Judge Ketanji Brown Jackson said Congress had given the agencies some policy options. “And my concern,” he said, “is that if we eliminate something like Chevron, the court will suddenly become a policymaker.”
The cases the judges considered were brought on behalf of two groups of fishermen, one in New Jersey and the other in Rhode Island. They opposed a maritime agency’s interpretation of a 1976 law that requires them to bring observers to collect data to prevent overfishing.
The challenged interpretation, set out in a 2020 regulation adopted by the National Marine Fisheries Service, required fishermen to not only transport observers but also pay for them, at a rate of about $700 a day.
The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the regulation in the New Jersey case, citing Chevron.
“Congress has delegated broad authority to an agency with knowledge and experience within a specific industry.” Judge Judith Rogers wrote for the majorityadding that “the court’s review is thus limited to the well-known questions of whether Congress has spoken clearly and, if not, whether the implementing agency’s interpretation is reasonable.”
It was, he wrote. “Although the law may not unequivocally resolve whether the service can require industry-funded monitoring,” she wrote, “the service’s interpretation of the law as allowing it to do so is reasonable.”
A unanimous three-judge panel of the First Circuit said much the same thing in the Rhode Island case. “At least,” Judge William J. Kayatta Jr. As he wrote for the panel, the agency’s interpretation of the 1976 law was “certainly reasonable.”
Wednesday’s argument included a series of hypothetical questions. Justice Elena Kagan asked who should decide, for example, whether a product is a drug or a dietary supplement. The answer, she suggested, was an expert agency.
“It’s better to defer to people who do know, who have extensive experience on the ground, who have seen thousands of these types of situations,” he said. “And, you know, judges should know what they don’t know.”
Justice Kagan envisioned a new statute that would address artificial intelligence, one that would inevitably have loopholes and ambiguities.
“Congress can hardly see a week into the future regarding the issue, much less a year or a decade into the future,” he said, adding: “Congress knows that this court and the lower courts are not competent with respect to deciding all issues.” the questions about AI that will arise in the future.”
Judge Jackson is recused from the New Jersey case, Loper Bright Enterprises v. Raimondo, No. 22-451, having participated in it as a judge of the federal court of appeals. In an unusual move, the Supreme Court agreed to hear a nearly identical Rhode Island case, Relentless Inc. v. Department of Commerce, No. 22-1219, five months after agreeing to hear the New Jersey case.
This may have been a sign that the court wanted to have nine members as it considers whether to overturn an important precedent.
The cases have an unusual feature, as Ms. Prelogar explained in a brief defense of Chevron. “In practice, the monitoring provisions of the 2020 rule have had no financial impact on regulated vessels,” the brief said, adding that the program was suspended last year and that the agency reimbursed monitoring costs in the that had been incurred under it.
Fishermen are represented by two conservative groups, Cause of Action Institute and the New Alliance for Civil Liberties. Both have financial ties to the network of foundations and advocacy organizations funded by Charles Koch, a billionaire who has long supported conservative and libertarian causes.
The judges debated the practical impact of their eventual ruling, expected in June, with some saying Chevron had already largely fallen from grace.
“To what extent is this a real question on the ground?” Chief Justice John G. Roberts Jr. questioned Román Martínez, a lawyer for Rhode Island fishermen, noting that the Supreme Court had not decided a case using the doctrine in years.
Martinez said lower courts continued to decide cases under Chevron, as they did in cases before the court.
The justices were also concerned whether a decision overturning the decision would lead to countless challenges to previous rulings under the doctrine. “Isn’t the door then open for litigants to return?” Judge Amy Coney Barrett asked, adding: “Isn’t this causing an avalanche of litigation?”
