Via The New York Times
By Jody Freeman and Andrew Mergen, director of the Environmental Law & Policy Clinic

The Supreme Court heard arguments on Wednesday in two cases inviting the justices to drastically restrict the authority of federal agencies, upend decades of precedent and take more power for themselves.

At least four members of the court seem prepared to do so. The question is whether Chief Justice John Roberts or Justice Amy Coney Barrett will go along with them to provide a majority.

Out of respect for precedent and judicial humility, they should not.

On the surface the cases concern fishing regulation, but the real question before the court is this: Who fills in the gaps and resolves ambiguities Congress leaves when it writes statutes for federal agencies to put into effect and enforce? For 40 years, the answer has been the agencies, as long as they interpret the law “reasonably.”

That principle comes from a 1984 case, Chevron v. Natural Resources Defense Council, one of the most widely cited cases in the law, which the Supreme Court is now being urged to jettison. Conservatives have been stalking this precedent for years, believing, in the words of Justice Neil Gorsuch in 2016, that it gives “prodigious new powers to an already titanic administrative state.”

Overturning the well-established Chevron framework would invite litigation over virtually every decision, big and small, that agencies must make in their day-to-day work, decisions that are in part legal but also call for expert policy judgments. Questions such as how to define a stationary source of air pollution, what constitutes critical habitat for endangered species, which drugs are safe and effective for human use and what amounts to unfair or deceptive marketing.

The cases before the court are a good example. Plaintiffs are challenging a federal rule requiring private fishing boats to pay for onboard observers who monitor their compliance with conservation rules. Congress clearly authorized the onboard monitors in the Magnuson-Stevens Act but did not say who should pay for them. The National Marine Fisheries Service, which oversees the law, determined that a reasonable reading would require the government to pay for the training and administrative costs of the observers and private boat owners to pay their daily fees. In both cases, the lower courts ruled for the agency, with one of them citing Chevron.

When it was decided, Chevron was a conservative victory. The court deferred to the Environmental Protection Agency’s pro-business interpretation of the Clean Air Act during the Reagan administration. Now, though, Chevron is seen as enabling agencies to run amok. Overturning it is part of a larger project to disable the federal administrative state.

The lawyers representing the fishermen plaintiffs in these cases are linked to the anti-regulatory Koch Industries. Conservative movement organizations are also behind other cases pending before the court seeking to restrict consumer, environmental and firearm regulation.

Already, the Supreme Court has limited Chevron, creating procedural hurdles agencies must clear to invoke it. And in 2022 the court formally embraced a new principle, the major questions doctrine, which requires agencies to point to supremely clear textual authority if they wish to do big, important things. These steps essentially aggrandize more power for the court over the prerogatives of the political branches of government.

The current court’s direction contrasts sharply with the approach the court took in Chevron. The government prevails, the court said in that decision, when its reading of the law is a reasonable choice “within a gap left open by Congress.” In such cases, the court went on, “federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.” And those who do have constituencies are the president and Congress.

After the oral arguments, we now have a better sense of where the justices stand. Several of them already have expressed deep skepticism about Chevron. Justice Clarence Thomas, once a fan of the precedent, has recanted. In a 2015 concurring opinion, he argued that deference to agencies “wrests from courts the ultimate interpretive authority to say what the law is and hands it over to the executive.” Justice Gorsuch, who railed against Chevron as a lower court judge, made his ongoing antipathy plain during the oral arguments.

Justice Samuel Alito relied on Chevron when dissenting in a 2018 immigration case. Though he noted that “in recent years, several members of this court have questioned Chevron’s foundations,” he did not do so himself then. But recent Alito decisions have been notably hostile to federal regulation, suggesting that he is likely to go along with the Chevron critics.

Most revealing was Justice Brett Kavanaugh. In a 2016 article in The Harvard Law Review, he wrote that “courts should still defer to agencies in cases involving statutes using broad and open-ended terms like ‘reasonable,’ ‘appropriate,’ ‘feasible’ or ‘practicable.’” But his questions at Wednesday’s oral arguments signaled strongly that he is open to overturning Chevron. Courts should “pay attention to” what agencies think, he said, but agencies should not have the power to control meaning.

That leaves Chief Justice Roberts and Justice Barrett among the six conservatives on the nine-member court. The chief justice has been more measured than his conservative colleagues, criticizing Chevron but indicating it might be limited rather than tossed out. He said relatively little at the argument, although he did observe that the Supreme Court has not cited it in several years, implying that Chevron’s influence has waned.

Justice Barrett has not commented meaningfully on Chevron, either while on the court or before. During the argument, however, she seemed concerned about overturning such an important precedent and the flood of litigation it might unleash. What will happen to the thousands of cases decided under Chevron? “Isn’t the door then open for litigants to come back?” she asked.

These two justices could help steer the court to cabin Chevron, perhaps limiting it to instances in which Congress has clearly delegated an ambiguity to the agency to resolve. The benefits of such an approach would be less upheaval, less disruption, less chaos and greater stability. And the Supreme Court would still be able to say what the law is in cases it wants to decide.

On the other hand, dispensing with Chevron altogether would lead to a result that Elizabeth Prelogar, the solicitor general of the United States, warned would be an “unwarranted shock to the legal system.” She argued that it would embroil federal judges in intricate questions of statutory interpretation for which they lack the necessary scientific, economic or technical expertise and increase the likelihood of judicial policymaking, resulting in a raft of inconsistent lower court decisions.

Chevron is integral to the operation of a modern government in an ever more complex world, especially when Congress is in gridlock and no longer updating old statutes as it once did routinely, with input from the agencies.

But even if Congress were not so dysfunctional, it cannot be expected to anticipate every interpretive question that agencies might face or to legislate on the intricacies that often drive policies in the real world. As Justice Elena Kagan noted, courts are disconnected from the policy and political process, and “judges should know what they don’t know.”

Especially troubling was the at times breezy disregard with which some justices treat coequal branches of government. Without any sense of irony, for instance, Justice Kavanaugh suggested that the danger of Chevron is that it allows “aggressive assertions of unilateral executive power.” Some self-reflection might be in order.

Toward the end of the hourslong argument, Justice Kagan described both Chevron and stare decisis, the idea that courts should stand by things decided, as doctrines “of humility.” She pressed the plaintiff’s counsel: “You’re saying blow up one doctrine of humility, blow up another doctrine of humility and then expect anybody to think that the courts are acting like courts.”

Let’s hope two of her conservative colleagues were listening.

Filed in: Op-Ed

Tags: Emmett Environmental Law & Policy Clinic

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