Supreme Court takes on executive branch in broad fight over policymaking power

The Supreme Court has been chiseling away at the administrative state for years. Now it may be poised to take a giant chunk of power away from federal regulators.

A legal fight over an obscure commercial fishing rule appears to be on the verge of fulfilling a decadeslong goal of legal conservatives: the demolition of a legal doctrine used to sustain a vast array of federal government policies ranging from gun safety to immigration to pollution controls.

The nation’s highest court will spend Wednesday mulling how much deference judges must give to federal agency regulations and other executive branch decisions. After more than a decade of pushing from conservatives, the court appears to be headed toward making it much easier for judges to strike down policies crafted by federal bureaucrats when the congressional authorization for those policies isn’t crystal clear.

A broad ruling against agency power would be a potent victory for business interests and other foes of regulation. And it would be sure to hinder the policymaking power of Joe Biden and his successors, because presidents — especially Democrats — have increasingly tried to use ambitious agency regulations to achieve their goals in the face of a calcified Congress.

At issue is a bedrock principle of administrative law known as Chevron deference. Named after the 1984 Supreme Court case in which it was articulated, the doctrine says that when a law Congress has passed is ambiguous, judges should defer to an agency’s interpretation if it’s reasonable.

The idea was to prevent judges from second-guessing often-technical decisions by agencies with expertise. In the decades since, Chevron has become one of the high court’s most-cited cases and a regular part of rulings over government actions. A group of New York University law students even created a catchy jingle about it in 2014.

Chevron's defenders also argue that Congress lacks the time and expertise to craft meticulous legislation, and instead frequently passes laws giving agencies some leeway to adapt to unforeseen situations.

For example, the Clean Air Act requires EPA to write new rules if the agency determines a pollutant not already regulated is a threat to public health or the environment. EPA has used the flexibility to target carbon dioxide and other greenhouse gases that the law doesn't explicitly mention. Under Chevron deference, EPA has a stronger legal defense for some climate rules; without it, the outlook is hazier.

But opponents of the 40-year-old doctrine say it defies the separation of powers in the Constitution, effectively neutering federal judges and allowing agencies to aggrandize themselves by becoming the judges of their own actions.

“Judges are supposed to be impartial arbiters of law — not home-team umpires for the Executive Branch,” anti-Chevron attorneys wrote in a November brief. The line appears to be designed to appeal to Chief Justice John Roberts, who famously said during his 2005 confirmation that his job is to “call balls and strikes and not to pitch or bat.”

The Biden administration has vigorously defended the doctrine, insisting that it actually respects the separation of powers.

“When a statutory provision is genuinely susceptible of multiple reasonable readings, choosing among those readings often turns on a policy judgment that Congress has vested in the agency and that is properly left to the political Branches,” the Justice Department wrote in its own brief.

Although Chevron deference was named after a case involving environmental regulations, it has since been applied to virtually every kind of policy decision across the federal government. Uses in recent years include mine safety rules, the bump-stock ban, IRS whistleblower awards, veterans' benefits and immigration policy.

When courts apply the doctrine, agencies are much more likely to win.

A 2017 study of thousands of circuit court rulings found that agencies won more than 77 percent of the time under Chevron deference — but just 38 percent of the time when the courts reviewed actions "de novo," meaning without any deference to the agency.

Chevron is still used routinely in the lower courts, but the Supreme Court has all but abandoned it. The justices haven’t used Chevron to decide a case since 2016, despite having multiple opportunities in the years since.

Still, the court has not formally repudiated the doctrine, never delivering the coup de grace and instead leaving lower federal judges to try to assess its vitality.

In some instances, the high court has sidestepped the Chevron debate and embraced methods of statutory interpretation that cast even greater doubt on agency powers — most notably the “major questions doctrine,” which had been growing informally for some time and was formally articulated in the 2022 ruling that struck down EPA’s climate rule for power plants. The major questions doctrine requires judges to void agency actions of significant economic or political impact unless Congress has explicitly authorized them.

Several of the Supreme Court’s Republican appointees have been open about their desire to limit, and maybe even overturn, Chevron.

The doctrine “deserves a tombstone no one can miss,” Justice Neil Gorsuch wrote in 2022. Justice Samuel Alito in 2018 described it as an “increasingly maligned precedent.” In 2016, Justice Brett Kavanaugh called it “a judicially orchestrated shift of power from Congress to the Executive Branch.” And in 2015, Justice Clarence Thomas wrote in a concurrence that "the potentially unconstitutional delegations we have come to countenance in the name of Chevron deference" had emboldened EPA to overstep its authority, which Thomas said left him "alarmed."

Even former Justice Anthony Kennedy took a shot at Chevron. Just a month before he retired in 2018, Kennedy wrote that he had become troubled by the courts offering agencies "reflexive deference" and called for a reconsideration of the doctrine.

Overturning Chevron has become something of a crusade for legal activists on the right in recent years. Billed as reining in the federal bureaucracy, the drive has unified conservatives, although eliminating Chevron would limit the power of Republican presidents as well as Democratic ones.

Through numerous Congresses, Republican lawmakers have tried to pass legislation ending Chevron deference, but have been unable to get it through the Senate.

That failure to override Chevron actually weighs in favor of the Supreme Court maintaining it, the Biden administration argued.

“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,” it wrote in a December brief. “Stare decisis” is the legal principle that precedents should generally be respected.

In an unusual argument structure, the court is hearing two cases on Wednesday making the same argument about the same issue.

The first case the court accepted, Loper Bright Enterprises v. Raimondo, bubbled up through the U.S. Court of Appeals for the D.C. Circuit, where then-judge Ketanji Brown Jackson sat on the panel that heard the case before she was elevated to the Supreme Court. Even though she didn't participate in the ruling, Jackson recused herself from the case at the high court and isn’t expected to participate in the arguments.

Last October, the court accepted another case asking the same legal questions, Relentless v. Department of Commerce. That appeal came from the U.S. Court of Appeals for the 1st Circuit, allowing Jackson to join in arguments and to vote on the ultimate outcome.

Relentless will be argued first, allowing Jackson to take the bench for that case and then depart when it’s time for the Loper Bright argument.

Both cases ostensibly challenge a National Marine Fisheries Service rule that required boats to pay for monitors looking for overfishing. But the high court declined to take up any questions related to the fishing rule, instead choosing to decide only the legal question of how much — if any — deference judges should give to the fishing agency’s conclusion that it had the legal authority to act.