Supreme Court prepares to decide major cases over power of federal administrative state

The Supreme Court on Wednesday will hear a pair of oral arguments on an issue that could dramatically shrink the power of executive agencies to interpret and enforce federal laws.

It is billed as a fight between what one side calls unchecked government overreach and others see as necessary protection of a broad swath of areas like environmental, health, workplace safety and consumer laws.

Oral arguments begin at 10 a.m. and could go past 1 p.m. Rulings are expected by late June.

The justices will hear two separate appeals involving the same issue: whether Atlantic herring fishermen must pay for federal officials to board their vessels to monitor the catches and collect data.

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The National Oceanic and Atmospheric Administration (NOAA) implemented a revised federal mandate in 2020, even though Congress never gave the agency specific authority to launch such a program.

The owners say the fees can exceed $700 daily and often exceed the money earned from catching low-priced herring. NOAA has waived the rule temporarily, saying it ran short of funds to administer the monitoring program.

The high court for four decades has endorsed the broad discretion owed federal agencies, in what has been known as “Chevron deference,” referring to the 1984 case that established the precedent, Chevron USA, Inc. v. NRDC.   

The fishing fleets and business groups say their livelihoods are being threatened with onerous, expensive regulations that Congress did not specifically authorize. They say judges, not federal bureaucrats, should be interpreting what are admittedly often ambiguous congressional statutes.

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“The reality is that Chevron has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough. The government’s pleas to retain this misguided and reliance-destroying doctrine fall far short of the mark,” said Paul Clement, an attorney who will argue one of the Wednesday petitions.

Justices Clarence Thomas and Neil Gorsuch have long advocated for scaling back the Chevron deference, but the views of fellow conservatives, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, could prove decisive here.  

The Biden administration will argue that federal agencies have the expertise and mandate to enforce federal laws to ensure consumers and the public have, among other things, clean air and water, safe food and medicines, and stable economic and financial institutions.

In this case, the Justice Department says the fishing industry has long been subject to federal regulation, and that the current rules ensure “necessary and proper” management of limited seafood stocks.

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“Stare decisis principles [respecting precedent] weigh heavily in favor of adhering to Chevron, which has been a cornerstone of administrative law reflected in thousands of judicial decisions – and which has provided a stable background rule against which Congress has legislated – for 40 years,” said Solicitor General Elizabeth Prelogar, who will argue booth appeals on Wednesday. “Because Congress could alter or eliminate the Chevron framework at any time but has declined to do so, Chevron is entitled to the particularly strong form of stare decisis that this court affords to decisions that Congress could override by legislation.”

Supporters say chaos would ensue if the executive branch were paralyzed from enforcing the thousands of regulations, and if plaintiffs were able to sue every time even minor tweaks were made to long-standing rules.

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Justice Ketanji Brown Jackson has recused in the second case, known as Loper Bright, since she heard it when it was before a federal appeals court. But she will sit on the bench for the first argued case known as Relentless, the name of one of the Rhode Island boats.

Wednesday, Jan. 17, 10 a.m.

EXECUTIVE POWER: Relentless, Inc. v. Department of Commerce (22-1219) 

Potential far-reaching appeals over another legal effort to have the so-called “Chevron” deference overturned by the Supreme Court. That 1984 ruling gives federal executive agencies broad discretion to interpret and enforce policies enacted by Congress. This and the case above deal with challenges to a federal mandate requiring Atlantic herring fishermen to pay more than $700 per day for monitors to ride their boats, observe their activities, and report to the government. The fishermen argue Congress never granted the National Oceanic and Atmospheric Administration the authority to force fishermen to pay for monitors. Justice Jackson recused in Loper Bright (heard the case at DC Circuit appellate level), but will participate in Relentless.

11 a.m.

EXECUTIVE POWER: Loper Bright Enterprises, Inc. v. Raimondo (22-451) 

Potential far-reaching appeals over another legal effort to have the so-called “Chevron” deference overturned by the Supreme Court. That 1984 ruling gives federal executive agencies broad discretion to “reasonably” interpret and enforce “ambiguous” policies enacted by Congress. Both cases deal with challenges to a federal mandate requiring Atlantic herring fishermen to “carry” inspectors on their boats, which the National Marine Fisheries Service recently interpreted to mean they must also “pay for” that required compliance monitoring. The fishermen argue Congress never granted the National Oceanic and Atmospheric Administration the authority to force fishermen to spend $700 per day – roughly 20-percent of their revenue – for third-party observers. Justice Jackson recused in Loper Bright (heard the case at DC Circuit appellate level), but will participate in Relentless.