The high court was considering challenges to federal rules requiring commercial fishermen to pay for at-sea monitors. But the court’s decision has the potential to limit the flexibility of federal agencies to regulate vast swaths of American life, including the environment, financial markets, public health and the workplace.
Conservatives have long targeted the framework set in 1984 in Chevron U.S.A. v. Natural Resources Defense Council because it requires judges to defer to the reasonable interpretation of federal agency officials charged with administering ambiguous federal laws.
On Wednesday, Justices Brett M. Kavanaugh and Neil M. Gorsuch, both nominees of President Donald Trump, took turns peppering the Biden administration with skeptical questions as Solicitor General Elizabeth B. Prelogar defended the Trump administration initiative — and the longstanding Chevron precedent.
Kavanaugh said Chevron has allowed federal agencies to flip flop and impose new rules each time a new administration takes over, leaving judges with little choice but defer to the changing interpretations of agency officials.
“Something needs to be fixed here,” said Gorsuch, who has previously called for overturning the precedent.
The court’s three liberal justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — expressed concern about shifting power to unelected judges to make technical and scientific policy decisions when laws passed by Congress are not crystal clear.
“Judges should know what they don’t know,” Kagan said.
Jackson said she is worried about “courts becoming uber-legislators.”
Whether the justices ultimately decide to toss one of the most-cited legal precedents seemed likely turn on Chief Justice John G. Roberts, Jr. and Justice Amy Coney Barrett, whose questions Wednesday did not clearly telegraph their positions.
While many lower courts still rely on Chevron, the Supreme Court has been less likely to do so as it moved to the right in recent years, with the addition of three justices nominated by Trump.
Roberts alluded to that reality on Wednesday, suggesting the court had already overruled Chevron in practice. But he has also said justices should be constrained by stare decisis, the doctrine of abiding by past decisions.
Barrett asked whether overturning a foundational decision like Chevron would invite a flood of litigation and open the door to undoing other past rulings.
The cases brought by Atlantic herring fishermen are backed by conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by billionaire industrialist Charles Koch and his late brother, David Koch.
Opponents of Chevron say the framework unfairly tips the scales in favor of government agencies in litigation challenging burdensome regulations. They say it is unconstitutional to require judges to systematically defer to one powerful party — government agencies — over any other. Agencies, they say, have no authority beyond what Congress has specified.
Supporters of Chevron, including environmental groups, labor and civil rights organizations, say Congress often writes broad statutes to give government experts flexibility to address emerging complex problems. Overturning or scaling back one of the nation’s most cited legal precedents, they say, will hamstring federal agencies and shift power to the courts and Congress.
While the justices have not invoked Chevron since 2016, lower courts have relied on the framework in tens of thousands of cases evaluating federal rules and orders.
The herring fishermen are challenging a Trump administration program requiring them to carry and pay for monitors aboard their vessels during certain trips to inspect operations and track fishing limits. The National Marine Fisheries Service interpreted a statute passed in 1976 as giving the government the power to pass on the cost of the monitors to the fisherman.
Fishermen from New Jersey and Rhode Island filed nearly identical lawsuits asserting that the Magnuson-Stevens Act does not directly authorize the government to force them to pay for the $700-a-day monitors on trips that often last several days.
In both cases, federal courts of appeal applied Chevron and deferred to the government’s interpretation of the statute. The fishermen then appealed to the Supreme Court.
The industry-funded monitoring program was short-lived, ending last year due to lack of sufficient funding. The fishermen were reimbursed for all costs.
The cases are Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.