Supreme Court appears ready to curb power of executive agencies

The Supreme Court examined federal agencies’ expansive power to regulate Americans’ lives on Wednesday, with justices expressing skepticism about a 40-year-old precedent urging courts to show special “deference” to administrations’ interpretations of law.

Conservative legal scholars have long argued that the 1984 Chevron case has fueled massive growth of presidential power at the expense of Congress and average Americans.

The cases heard Wednesday give the court, with a majority of Republican-appointed justices, a chance to overturn the “Chevron deference.”

“It’s the role of the judiciary, historically, under the Constitution to police the line between the legislature and the executive, to make sure the executive is not operating as a king,” said Justice Brett M. Kavanaugh, a Trump appointee who sees flaws with Chevron and how the ruling has played out over the years.

The cases before the justices involved Atlantic herring fishermen. A federal agency ordered the fishermen to allow catch monitors onto their boats and pay $700 daily to cover the cost. Fishermen say the fee could put many of them out of business and argue that courts have not recognized Congress’ intentions with the law.

A lower court upheld the National Marine Fisheries Service’s $700-per-day fee. It ruled that the law was so ambiguous that the court had to bow to the agency’s decision under the “Chevron deference.”

When the law is ambiguous and an agency has acted reasonably, a judge must defer under the doctrine, even if the court thinks Congress might have intended another outcome.

Paul D. Clement, one of the lawyers arguing to eradicate Chevron, said the precedent has led to an overbearing bureaucracy whose decisions ding average citizens.

“There is no justification for giving a tie to the government,” Mr. Clement said. “This case well illustrates the real-world costs of Chevron, which don’t fall exclusively on the Chevrons of the world but injure small businesses and individuals as well.”

Justice Elena Kagan, an Obama appointee, said agencies deserve special consideration for several reasons. She said Chevron grew out of the realities of judging when the law Congress writes isn’t clear enough, either because of ambiguities of language or the inability to predict the future.

The question, she said, is who fills that gap. The answer, she said, must be agencies and not the courts.

“It’s best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations,” she said. “Judges should know what they don’t know.”

Without Chevron, courts would make policy decisions that are usually left to the legislative or executive branches, said Justice Ketanji Brown Jackson, a Biden appointee.

“I see Chevron doing the very important work of helping courts stay away from policymaking,” she said.

The 1984 case has become legendary less for what it says than for how lower courts have used it to create a presumption in favor of bureaucracies. It involved a challenge by the Natural Resources Defense Council to an Environmental Protection Agency interpretation of the “source” of air pollution. The change made it easier for factories to add facilities without going through the EPA review process.

A unanimous Supreme Court ruled in favor of the EPA. It said Congress had given the agency authority to interpret and enforce its policy and that judges should defer to that authority.

Justice Samuel A. Alito Jr., a George W. Bush appointee, said optimists thought the ruling could help the separation of powers by keeping judges from imposing their policy preferences on the executive branch.

The way it has played out, though, the judges have let too much power flow from Congress to the executive, he said.

“It’s time for the court to address the disease, the underlying problem, which is Chevron itself,” said Roman Martinez, an attorney for one of two sets of fishermen whose cases were heard.

U.S. Solicitor General Elizabeth Prelogar, defending the National Marine Fisheries Service, took a mend-it-don’t-end-it approach to Chevron. She said court respect for agencies’ decisions is nothing unusual and reversing the precedent would create new problems.

She said justices worried that some lower courts show too much deference and abdicate their role as judges could resolve the issue with a narrow ruling reminding judges where the line of agency flexibility ends.

“Another one?” asked an exasperated Justice Neil M. Gorsuch, who said the Supreme Court has repeatedly issued those cautions to little effect.

Ms. Prelogar said a past admonition stopped some Chevron abuses.

“It can matter in that lower courts can get that kind of message if you’re worried about it,” she said.

The justices have spent years trying to blunt some of the more egregious outcomes of Chevron.

Justice Gorsuch, a vocal critic of Chevron dating back to his years on a circuit court of appeals, said the doctrine ends up stiffing the little guy — an immigrant, a Social Security recipient or a veteran seeking benefits.

“In every one of those, Chevron is exploited against the individual and in favor of the government,” he said.

He said each presidential administration seems to reinterpret the law, leading to strange outcomes. He pointed to the Bush administration’s rules under the broadband law. The Obama administration decided that the law meant something different, the Trump administration largely reversed the Obama interpretation back toward the Bush policy, and now the Biden administration is pondering another reversal.

“The reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in,” Justice Kavanaugh said.

Justice Kagan wondered about the danger of sapping agencies of flexibility, particularly in complex areas of law such as artificial intelligence.

She said Congress couldn’t write a law predicting where AI is heading, and agencies would have to make some hard decisions about adapting laws to the future of AI.

Several justices worried that overturning Chevron could reopen more than 70 cases that used the precedent.

Some legal scholars say the hype over Chevron deference is overblown. They note that the Supreme Court hasn’t issued a deference-based ruling in some time.

“In the last 14 years, we’ve barely referenced Chevron,” said Justice Sonia Sotomayor, an Obama appointee.

The problem, conservatives say, is that lower courts still use Chevron, leading to an unseemly split between the high court and its subordinates.

Mr. Martinez pointed to two high-profile circuit court judges, one of whom said he finds ambiguity in most cases and another who said he has never found enough ambiguity to engage in Chevron deference.

“Chevron is doing something very weird. It’s taking interpretive authority that belongs to the courts, and it’s giving it to agencies,” Mr. Martinez said.

The two cases are Relentless v. Department of Commerce and Loper Bright Enterprises v. Gina Raimondo, the commerce secretary who oversees the National Marine Fisheries Service. Rulings are expected by the end of June.