Looming Supreme Court decision could curtail federal agency powers

The Supreme Court will soon issue a decision that could claw back the power of federal agencies and expand the power of judges. 

The decision, which may come down this week, could limit the agencies’ authority to issue any number of consumer, workplace or environmental protections.

During oral arguments, the court’s conservative majority appeared inclined to at least pare down a decades-old precedent that tells judges to defer to agency interpretation when the law is ambiguous. 

In practice, that Chevron deference, named for the court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, has given both Democratic and Republican administrations a degree of latitude in making decisions. If the court decides to trim it back or fully overrule it, judges will be able to substitute their own interpretation of the law in more cases, and may be more likely to strike down existing agency rules.

“I think the court is more likely to limit the doctrine and maybe give a long laundry list of reasons when Chevron deference would not apply,” said Emily Hammond, a law professor at the George Washington University. 

But, she said, “if the court gets rid of the doctrine, then we have a lot of questions about what kind of litigation will ensue, and I predict that a lot of particularly industry groups may bring challenges against environmental health and safety regulations that have been upheld under Chevron,” Hammond added.

In the case of such a ruling, “in the short term, it means that our protections are gone ... because that happens to be the makeup of the federal judiciary right now — they're overwhelmingly conservative,” said James Goodwin, policy director of the Center for Progressive Reform.

“If I'm a member of the public and I'm concerned about PFAS in my drinking water, climate change wrecking my kid’s future, is my bank going to rip me off with some new fee ... agencies won't be able to respond to it,” Goodwin said. 

Chevron deference initially arose in defense of actions taken by the Reagan administration: It was established by a Supreme Court decision that upheld an interpretation of the Clean Air Act issued under then-Environmental Protection Agency Administrator Anne Gorsuch, mother of current Supreme Court Justice Neil Gorsuch.

Forty years later, however, the younger Gorsuch is likely to be part of a majority that overturns it. In recent years, conservative legal scholars have grown to oppose Chevron, arguing that it gives the federal agencies too much leeway to pass sweeping reforms.

“If you're suing an agency or an agency is suing you, there ought to be a level playing field there,” said Mark Chenoweth, president of the New Civil Liberties Alliance, a conservative legal group. 

“If you have the better argument as to the meaning of the statute, the judge ought to be free to side with you,” said Chenoweth, whose group is representing one of the plaintiffs. 

If the court does not uphold the current precedent, it’s not clear whether it will simply restrict Chevron or issue a new test entirely. 

If the court does decide to completely discard Chevron, one possible outright replacement it could make for the long-standing principle is a legal theorem known as Skidmore deference. Under this doctrine, a court would only have to defer to an agency if the agency’s argument is persuasive. 

Chenoweth said his group would see a Skidmore ruling as a win.

“Skidmore isn't deference. So if you're doing away with deference, then that's a home run,” he said. 

While it’s difficult to predict whether specific federal actions would be vulnerable if Chevron is overruled, some left-wing organizations are optimistic that the Biden administration has been writing rules with a Chevron-free future in mind. 

Ian Fein, senior counsel at the Natural Resources Defense Council, told reporters earlier this month that “any regulation that it was concerned about reaching the Supreme Court, I think it designed and justified them in ways that didn’t rely on the Chevron doctrine.”

However, he also raised concerns about the future of older rules if the Supreme Court — in a separate case it is considering — loosens the statute of limitations that determines when a rule needs to be challenged. 

“There have been thousands of cases and agency actions that have been upheld under Chevron deference going back in time, and one of the questions that this case poses is: What happens to all of those old cases?” Fein said. 

The particular cases before the court are Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. They involve challenges to Chevron related to a requirement for fishing boats to pay for monitors onboard.