Supreme Court Decision Could Shift Power Away From Federal Agency Experts

On January 17, 2024, the U.S. Supreme Court will hear oral arguments in the combined cases Loper Bright v. Raimondo and Relentless Inc. v. Department of Commerce. On their face, these cases deal with National Marine Fisheries Service (NMFS) regulations on commercial fishing vessels, but they are actually part of a long-term effort by right-wing and corporate interests to further weaken the power of government agencies to leverage their expertise and help everyday Americans. Specifically, the cases seek to overturn the precedent established in the 1984 case Chevron v. Natural Resources Defense Council, which held that courts must defer to agency expertise when a statute that an agency implements is not specifically clear—as long as it is a “reasonable interpretation” of the statute. This precedent, known as the Chevron doctrine, has guided rulemaking for the past 40 years, ensured it is accountable to the people via presidential elections, and “significantly curb[ed]” partisan decisions by judges.

The flexibility provided by Chevron deference is essential to the function of the federal government: It allows Congress to provide intelligible principles for agencies to follow without having to predict the future, and it allows federal agencies to fulfill congressional mandates through informed rulemaking decisions backed by research and expertise instead of political whims. The result is that agency expertise advises Congress on policy, and Congress sets down guideposts for agencies without needing to have deep expertise in every aspect of an increasingly complex society.

In the cases on appeal, both the D.C. Circuit and the 1st Circuit Court of Appeals applied Chevron doctrine principles to hold that the challenged regulation was a reasonable interpretation of a statute that is either ambiguous or silent as to the specific issue in question. However, the Supreme Court is not taking up the narrow question of whether the NMFS overstepped its statutory authority, but rather whether the court should wholly overturn Chevron deference to agencies. If the Supreme Court eliminates Chevron deference, it will upend 40 years of foundational law that has provided stable guidance to businesses and will replace agency expertise with the inexpert policy and ideological preferences of unelected judges. Moreover, the court would be undermining Congress’ choice to defer to agencies, further skewing the carefully constructed set of checks and balances that exist between the federal branches of government and hampering agencies’ ability to protect everyday Americans from corporate interests.

The who, what, and why of Loper Bright and Relentless  

WHO: The plaintiffs in Loper Bright and Relentless are New Jersey and Rhode Island commercial fishing companies that are challenging the legality of a NMFS 2020 rule that requires companies to pay the costs of fishery management observers on their vessels. Notably, the counsel for the Relentless plaintiffs is the New Civil Liberties Alliance (NCLA), which is largely funded by groups affiliated with archconservative Leonard Leo—the architect of the right-wing movement to roll back decades of social progress, in favor of corporate and monied interests, in the judiciary—and the Koch network. The NCLA keeps other troubling company: Jeffery Clark, the disgraced former U.S. Department of Justice (DOJ) official under President Donald Trump who was indicted for his involvement in attempting to overturn the 2020 election, was hired as its chief of litigation and director of strategy—it appears he is no longer with the NCLA, and the organization has refused to discuss the end of his tenure.

Though a majority of Supreme Court justices appear ready to overturn the Chevron doctrine, as recently as 2005, Justice Clarence Thomas was a staunch supporter. In his majority opinion in National Cable and Telecommunications Association v. Brand X Internet Services, Justice Thomas wrote, “If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.” However, Thomas appears to have fully reversed his position, now opposing Chevron deference, seemingly after establishing connections with conservative billionaires who fund his luxury vacations—and want to see Chevron eliminated. If the right-leaning justices decide to overturn the Chevron doctrine, their ruling will continue a trend in their efforts to strip agency power through reversing precedent and creating new legal theories, such as the major questions doctrine, that allows them to advance their ideological and policy preferences over long-standing legal principles.

WHAT: At issue is a 2020 rule derived from the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Passed in 1976 and amended in 2018, the MSA is recognized as “the primary law that governs marine fisheries management in U.S. federal waters.” Like many federal regulations, the rule requires the regulated industry to bear the cost of compliance, in this case to pay for fisheries observers hosted on vessels. 

As the DOJ notes in its brief in Loper Bright, the challenged regulation is a reasonable interpretation of agency authority under the MSA. Application of the Chevron doctrine would apply explicitly to the rule being challenged, but the petitioners are trying to use this specific case to wholly end Chevron deference and upend the way Congress and federal agencies have functioned for nearly half a century. 

WHY: These cases are part of a long-standing conservative effort to limit government’s ability to protect Americans from corporate power, as many safeguards are created through agency rulemaking based on generally worded statutes. Corporate interests with incentive to deregulate, such as the Koch network of beneficiary organizations, have made overt and covert attempts to sway the court in regard to this case. Whether it be submitting amicus briefs or luring justices at donor retreats, there is a concerted effort to shift the precedent away from agency expertise that protects ordinary Americans. 

The effects of overturning or narrowing Chevron deference would reverberate across almost every federal agency. Labor regulations that guarantee overtime pay, tipped wages, unionization rules, and discrimination rules would likely be immediately challenged and could be eliminated. Consumer protections against banks and financial service companies could similarly be at risk. The Environmental Protection Agency would be severely hindered in implementing its climate agenda—in the face of a planet-defining warming crisis. The U.S. Department of Health and Human Services’ ability to define and interpret Medicare and Medicaid statutes would be limited. These are just a handful of examples of the negative effects that narrowing or eliminating Chevron could have on the nation, and it would ultimately favor corporate profits over protections for everyday Americans. 

Conclusion

Relentless and Loper Bright are together a Trojan horse for an attempt to weaken the administrative state. Eliminating Chevron deference would negatively affect all those who rely on agency expertise, including Congress. An unfavorable decision in Loper Bright and Relentless would not only shift the power away from the elected branches of government—Congress and the executive branch—but also leave the legal system in disarray.

Beyond creating unnecessary chaos in the legal system, deregulation can lead to genuine catastrophes. Reversing or narrowing Chevron would upend a wide swath of U.S. case law, as it is one of the most cited doctrines in American law. Such a ruling would take policy decisions away from the most qualified experts, instead placing these decisions in the hands of an unelected judiciary, who may impose their policy preferences on the nation. Ultimately, the loudest advocates for deregulation are looking out not for the welfare of the American people, but for their own bottom lines.