Members of the Supreme Court's conservative majority appeared inclined Wednesday to limit or even overturn a key precedent that has empowered executive agencies, threatening regulations in countless areas, including the environment, health care and consumer safety. .
Each side warned of devastating consequences if they lose, underscoring how the court's decision in a highly technical case could reverberate across broad swaths of American life.
Overturning the precedent, Attorney General Elizabeth B. Prelogar told the justices, would be an “unwarranted shock to the legal system.”
But Justice Brett M. Kavanaugh responded that, in fact, “the system suffers shocks every four to eight years when a new administration arrives, whether in communications laws, securities laws, competition laws or environmental laws.”
Judging by the questions asked in two hotly contested arguments that lasted a total of more than three and a half hours, the 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. According to him, 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.
Supporters of the doctrine say it allows specialized agencies to fill gaps in ambiguous statutes to establish uniform rules in their areas of expertise, a practice they say was contemplated by Congress.
Their opponents, including business groups hostile to what they see as excessive regulation, respond that it is the role of courts, not executive branch officials, to determine the meaning of laws. They also say agencies' interpretations can change with new administrations and tip the balance in favor of the government even when it is a party to the case.
Some conservative justices said courts should decide what laws mean without giving decisive weight to agency opinions.
Justice Neil M. Gorsuch, for example, said he was concerned that judges would abdicate their responsibilities “and automatically say whatever the agency says wins.”
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.
“Agencies know things that courts don't know,” said Justice Elena Kagan, “and that is Chevron's foundation.”
He added that throwing out the decision would be a surprisingly disruptive move, since there have been 70 Supreme Court decisions based on Chevron, along with 17,000 in lower courts.
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.”
Chevron's fate could depend on the votes of Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett, members of the court's conservative wing whose questions were not uniformly hostile to the doctrine.
The tone of the discussion was lively and light, with smiles and banter among the judges, who remained engaged even as the hours passed.
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 per 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,” Justice Judith Rogers wrote for the majority, adding that “the court's review is thus limited to the familiar questions of whether the 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 a minimum,” Judge William J. Kayatta Jr. 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 Kagan asked who should decide, for example, whether a product is a drug or a dietary supplement. The answer, he suggested, was an expert agency.
“It is better to defer to people who do know, who have extensive experience on the ground, who have seen thousands of situations of this type,” 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 this 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 to decide 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.
Paul D. Clement, a lawyer for the New Jersey fishermen, said Chevron had made life too easy for Congress, which can enact ambiguous statutes and let agencies determine what they mean. “Chevron makes it very easy for them not to address difficult problems and forge a permanent solution,” he said.
The fishermen are represented by two conservative groups, the Cause of Action Institute and the New Civil Liberties Alliance. 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 Roberts questioned Román Martínez, a lawyer for the 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 Barrett asked, adding, “Isn't this causing an avalanche of litigation?”
The arguments drew a few dozen protesters outside the courthouse, despite the winter cold. Those gathered opposed the court overturning the Chevron doctrine.
After the argument, Meghan Lapp, fishing liaison for Seafreeze, a fishing company that operates some of the fishing vessels involved in the case, spoke in front of the Supreme Court and described a years-long attempt to challenge the regulation of a maritime agency.
“Frankly, no one cared,” he said. “The agency is not afraid of us. “They are not afraid of the little one because they know that they receive judicial deference.”
He added: “I hope that ends here today.”
Abbie VanSickle contributed with reports.
