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Is This the Supreme Court Case That Kills the “Administrative State”?

The justices have agreed to hear a case that could make it easier to kneecap federal agencies.

A view of downtown Washington, D.C.
A view of downtown Washington, D.C., in 2022

The Supreme Court announced on Monday that it would decide next term whether to eliminate or rewrite the Chevron doctrine, a major, long-standing legal precedent that allows federal agencies—in the absence of clear instruction from Congress—to interpret laws as it sees fit. Scrapping the doctrine, long a goal of the conservative legal movement, would make it far easier for the courts to block and overturn federal regulations—anything from Clean Air Act restrictions to food safety requirements to workplace health mandates.

The Chevron doctrine’s origins date back to a fight over air pollutants during the Reagan administration. In a ruling in Chevron U.S.A. v. Natural Resources Defense Council in 1984, the Supreme Court outlined a two-step process of sorts for lower courts to apply the doctrine in cases where a federal agency’s regulatory action has been challenged in court. First, the courts look at whether Congress expressed a clear intent to do something or to not do something. If it did, then Congress’s decision stands. If Congress was silent on the matter or the law is vague about it, then courts must defer to the agency’s “reasonable” reading of the statute in question.

Chevron is typically justified in pragmatic terms. Federal regulatory agencies often deal with complex economic and scientific questions, and their expertise—and Congress’s own judgment—is better suited to define the vagaries of policymaking than that of federal judges. More than a few conservative judges and legal scholars disagree, including an apparent majority of justices on the Supreme Court. They see it as a key factor in the growth and power of the modern “administrative state.” Justice Neil Gorsuch has been particularly critical of the doctrine, describing it at one point as “no less than a judge-made doctrine for the abdication of the judicial duty.” Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh have all been critical of the doctrine in some form during their careers.

In agreeing on Monday to hear Loper Bright Enterprises v. Raimondo, the justices left no doubt about whether they will address Chevron itself. The plaintiffs presented two questions for the justices: one on whether the lower courts had simply misapplied Chevron and one on whether the court should “overturn” or “at least clarify” Chevron itself. The court, in announcing that it would take up the case, said it would only address the latter. The real question now is whether the court will go big or go carefully.

The case is a fishing expedition—or, more accurately, a case about fishing expeditions. The Magnuson-Stevens Act is the main federal law that regulates commercial fishing in U.S. coastal waters. Congress enacted it in 1976 to protect American fisheries from overfishing and, through certain conservation measures, to replenish already overfished stocks. Enforcement of the Magnuson-Stevens Act is largely handled by the National Marine Fisheries Service. The NMFS develops fishery management plans through its eight regional councils and recommends them to the secretary of commerce for approval.

Federal regulatory agencies typically find it easier to regulate things if they can see and interact with whatever they’re regulating. This poses unique challenges for the NMFS because fish typically live underwater and don’t respond to human language. That would normally make it hard to determine whether existing conservation measures are working, whether new measures might be beneficial, and whether previously endangered fisheries have recovered enough to resume commercial activity. Fortunately for the NMFS, the Magnuson-Stevens Act gives the agency the authority to station “observers” on commercial fishing vessels if necessary to carry out a fishery management plan.

In 2017, the NMFS’s New England council decided to amend its existing plan for Atlantic herring to add a monitoring program that would be funded by the fishing industry itself. By that point, scientific analyses had found that the Atlantic herring fishery in its jurisdiction was dangerously close to being overfished. The stated goal was “to better understand the frequency of discarding in the herring fishery, as well as improve the tracking of the incidental catch of haddock and river herring/shad catch against their catch caps.” After further discussions with various stakeholders and some revisions, the secretary of commerce approved the final amendments in 2020.

Later that year, Loper Bright Enterprises and three other fishing companies sued the secretary to overturn the amendments and block the industry-funded observer program from going into effect. They argued that while the Magnuson-Stevens Act allowed the NMFS to place observers on commercial fishing vessels, it did not give the agency the power to command that those observers be paid by the industry itself. That alleged deviation from the statutory text, they argued, would have serious economic consequences for the industry itself.

“This industry-funded monitoring program is not cheap,” the companies argued in their petition for review for the Supreme Court. “In addition to taking up precious real estate onboard, NMFS has estimated that ‘industry’s cost responsibility associated with carrying an at-sea monitor’ is ‘$710 per day.’ On an annual basis, the program is estimated to ‘reduce’ returns-to-owner by ‘approximately 20 percent.’”

A federal district court sided with the NMFS in 2021, ruling that the Magnuson-Stevens Act, which authorizes the NMFS to take “necessary and appropriate measures” to carry out its duties, was ambiguous on whether the agency could mandate that the observers be industry-funded. Under the Chevron doctrine, federal courts generally defer to an agency’s interpretation of its own enabling statute if its language is vague or uncertain. Accordingly, the district court held that the NMFS changes did not clearly violate federal law. A divided D.C. Circuit Court of Appeals panel upheld that ruling last year. Since Justice Ketanji Brown Jackson took part in that decision while serving on that court, she has recused herself from the Supreme Court’s review of it.

Since the fishing companies can count to five (justices, that is), it’s not surprising that they asked the court to overturn Chevron outright in their petition. The federal government has urged the court to let the status quo stand. In addition to defending the NMFS rule on the merits, it also warned of the upheavals that could happen if the Supreme Court overturns one of the most important precedents on federal regulatory power.

“Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop,” the government wrote in its brief for the court. “Regulated entities and others routinely rely on agency interpretations that courts have upheld under the Chevron framework. By centralizing interpretive decisions in agencies supervised by the president, Chevron also promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes.”

It’s possible that the court will take the opportunity to overturn Chevron in full. But it is also possible, and perhaps more likely, that the court will take up the fishing companies’ invitation to “clarify” Chevron instead and simply rewrite it. The justices have turned down more than a few petitions in recent years where they were asked to overturn Chevron. And in some relevant cases, they also went out of their way to avoid it. The court heard American Hospital Association v. Becerra last year to decide a complex Chevron-related question about Medicare reimbursement rates. Instead of addressing the doctrine, however, the justices managed to craft a ruling that avoided citing Chevron altogether.

Maybe that means that Chevron is already as good as dead and Loper Bright will simply amount to its final rites. But if the court’s conservative members are looking for tools to curb federal regulatory power, they also have no shortage of them these days. Thanks to the ruling last year in West Virginia v. EPA, the justices can now use the “major questions” doctrine to overturn federal regulations if a plaintiff claims that Congress hasn’t “spoken clearly” enough to justify the new rule. The court’s oral argument schedule means that newly granted cases won’t be heard until next fall at the earliest, so the justices may not say until next June whether they will be wielding a sledgehammer or a scalpel against the “administrative state” that they hope to rein in.