About a week ago, the Supreme Court appeared open to the idea of curtailing the ability of federal agencies to regulate a host of areas that touch on American life. This could mean the end of a 40-year-old administrative law.
The justices sat to discuss a 2020 federal regulation requiring owners of fishing vessels in the Atlantic herring fishery to pay for monitors who collect data and oversee operations while they’re at sea. However, they barely mentioned this rule.
Instead, they focused on the 40-year-old rule called the “Chevron deference.” This law requires courts to defer to an agency’s interpretation of laws Congress can pass if it is “reasonable” enough. Therefore, the justices have these two laws clashing in front of them.
Chevron’s deference came from the Supreme Court’s 1984 landmark decision in the Chevron v. National Resources Defense Council case. This high-profile case involved a law that the Environmental Protection Agency put into effect under the Clear Air Act.
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Therefore, many lower courts have applied this doctrine over time. The Supreme Court also used this to uphold agencies’ interpretations of statutes at least 70 times. However, they have not used this doctrine since 2016.
While this has its advantages, some critics are highly against it. They argue that it gives federal bureaucrats too much power in crafting regulations that affect major swaths of everyday life. Therefore, overturning Chevron’s deference has been a long goal for conservatives nationwide.
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So, it may seem as though this is the aim of the conservative justices. They also argued that the Supreme Court hadn’t used the Chevron deference in almost ten years.
Justice Brett Kavanaugh said, “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, and, whether it’s communications law or securities law or competition law or environmental law, it goes from pillar to post.”
Another judge, Neil Gorsuch, believes that leaving this frame pro in place is a “recipe for anti-reliance.” He also noted that he had previously suggested scrapping the regulation as many lower courts keep requesting them to do so.
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“Even in a case involving herring fishermen and the question of whether they have to pay for government officials to be on board their boats — which may call for some expertise but it doesn’t have much to do with fishing or fisheries, it has to do with payments of government costs — lower court judges even here in this rather prosaic case can’t figure out what Chevron means,” he said.
Chief Justice John Roberts also agrees with Gorsuch’s take. He noted that since the Supreme Court hasn’t invoked Chevron in a long time, it means they realize they don’t need to. He asked, “[if the Supreme Court] overruled it in practice, even if we’ve had to leave the lower courts to continue to grapple with it?”
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