Supreme Court debates major cases that could shape the future of federal administrative authority

WASHINGTON - On Wednesday, the Supreme Court heard almost four hours of oral argument in a pair of major cases about federal agency power. 

Federal agencies make decisions that affect many things — from the quality of the air you breathe to the roads and bridges you travel to the medicine you take.

The key question in Relentless Inc. v. Department of Commerce and Loper Brighter Enterprises v. Raimondo is who should interpret a law when it is unclear? 

Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, courts generally defer to a federal agency’s interpretation when a law is unclear. 

Now, a group of fishermen are challenging that framework and asking the court to overturn the 40-year-old precedent.

The fishermen are challenging a rule imposed by the National Marine Fisheries Service that would require them to allow a government observer on their fishing boats and pay for the costs associated with the observer. 

The court’s liberal justices were concerned about overturning Chevron. 

Justice Ketanji Brown Jackson, appointed by President Joe Biden, said her "concern is that if we take away something like Chevron, the court will then suddenly become a policymaker by majority rule."

The court’s conservative justices appeared less convinced that Chevron should remain good law. 

Biden’s Solicitor General, Elizabeth Prelogar, said overturning Chevron would be a "shock" to the legal system. 

Justice Brett Kavanaugh, appointed by President Donald Trump, said, "Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in," suggesting that agencies have more room to flip their statutory interpretations to match policy preferences under Chevron. 

Who decides? That was the oft-repeated refrain from members of the Supreme Court on Wednesday, in a major dispute over the power of the federal administrative state.

It has been billed as a fight between what one side calls unchecked government overreach and others see as necessary protection of a broad swath of federal agency oversight.

The lengthy arguments in two separate cases had the justices questioning their own authority.

"Maybe a dozen or more circuit judges have written asking us to overrule Chevron," said Justice Neil Gorsuch. "And should that be a clue that something needs to be fixed here, that even the federal government at the podium can't answer the question what triggers ambiguity?"

But others on the bench expressed concern that overturning the current system of agency statutory interpretation would put judges in the uncomfortable position of making policy — something that is left to the political branches.

"A new product designed to promote healthy cholesterol levels — is it a dietary supplement or a drug?" said Justice Elena Kagan, using a hypothetical. "I would rather have people at HHS [Health and Human Services Department] telling me whether this new product was a dietary supplement or a drug."

"Judges should know what they don't know," added Kagan.

The National Oceanic and Atmospheric Administration (NOAA) implemented a revised federal mandate in 2020, even though Congress never gave the agency-specific authority to launch such a program.

The owners say the fees can exceed $700 daily and often exceed the money earned from catching low-priced herring. NOAA has waived the rule temporarily, saying it ran short of funds to administer the monitoring program.

"I'm concerned that it will make it harder, for sure," Bill Bright, who runs his family seafood business Loper Bright Enterprises, told Fox News. The Cape May, New Jersey company is among those suing. "We're survivors as an industry, but it's certainly not going to make it any easier, adding more expense to it."

The fishing fleets and business groups say their livelihoods are being threatened by onerous, expensive regulations that Congress did not specifically authorize. They say judges, not federal bureaucrats, should be interpreting what are admittedly often ambiguous congressional statutes.

In arguments, their lawyers for the small business people said you need a "secret decoder ring" to figure out what the Chevron deference precedent means.

Gorsuch called it a "recipe for instability."

"This is what niggles at so many of the lower court judges," he said. "You've left open the possibility that a judge, if left to his own devices, would say the fairest ruling is in favor of the immigrant, it's in favor of the veteran, and it's in favor of the Social Security Disability applicant, but because of a fictionalized statement about what Congress wanted when it didn't think about the problem, the government always wins."

The Biden administration argues those federal agencies have the expertise and mandate to enforce federal laws to ensure consumers and the public have, among other things: clean air and water; safe food and medicine; and stable economic and financial institutions.

Solicitor General Prelogar told the court the fishing industry has long been subject to federal regulation, and that the current rules ensure "necessary and proper" management of limited seafood stocks.

Some left-leaning justices agreed. 

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Chief Justice John Roberts and Justice Amy Coney Barrett asked tough questions of both sides, at times suggesting a scaled-back ruling — a "course correction" as was suggested in court — narrowly favoring the fishermen, might be the best approach.

Roberts drew courtroom laughter when he said giving the judiciary too much power might be problematic.

 "Judges are used to deciding things, and when they get around to doing it, they tend to think what they've come up with is not only the best answer, but it's the only answer."

Rulings are expected by late June.

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