Supreme Court Could Deal Fatal Blow to Powers of Federal Agencies

A view of the U.S. Supreme Court on January 4, 2024 in Washington, DC.

The Supreme Court could deal a massive blow to the regulatory power of federal agencies when ruling on a challenge brought by commercial fishermen.

The justices on Wednesday will hear two cases—Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—that argue Congress never gave federal regulators the authority to require fishermen to pay the salaries of federal compliance monitors.

But more broadly, the court—which has a 6-3 conservative majority—has been asked to overturn a doctrine called Chevron deference. It stems from the court’s 1984 ruling in Chevron v. Natural Resources Defense Council, which says courts should defer to a federal agency’s interpretation of laws when they are ambiguous or unclear.

Chevron deference “incentivizes a dynamic where Congress does far less than the Framers (of the U.S. Constitution) anticipated, and the executive branch is left to do far more by deciding controversial issues via regulatory fiat,” attorneys for the fishermen wrote in a brief.

Chevron, one of the most frequently cited Supreme Court cases, has become a frequent target of conservatives, who argue it gives federal agencies too much power. If the precedent is overturned, it would potentially make it harder to sustain government regulations.

The ruling in Chevron established that a court “must defer to an agency’s reasonable readings of a statute when it’s reviewing regulations rather than override its expert judgment because Congress tapped the agency, not courts, to fill in blanks left by legislation,” Kimberly Wehle, a law professor at the University of Baltimore, wrote in an op-ed for Newsweek in October.

“If the Supreme Court overrules Chevron, it would put thousands of regulations in legal jeopardy, simultaneously thrusting the industries they regulate in economic uncertainty. It would also enhance the Court’s power, as judges would become the deciders of regulatory policy.”

At least four of the high court’s conservative justices have questioned the precedent, including Clarence Thomas.

In a 2020 dissenting opinion, Thomas said he had determined that the doctrine is unconstitutional, renouncing his own earlier decision that defended the power of federal agencies. Thomas also faced calls to recuse himself after it was reported that he secretly attended donor summits organized by the billionaire Koch brothers, who are among the biggest opponents of the doctrine.

Only eight justices will participate, as Justice Ketanji Brown Jackson, one of only three liberal justices on the court, recused herself because she was on a panel of appellate judges that heard arguments in the case when it was at the U.S. Court of Appeals for the District of Columbia Circuit.

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