Supreme Court poised to end ‘constitutional revolution’ that’s marred US governance for 40 years
When Justice John Paul Steveīˇēns issued his 1984 opinion in Chevron U.S.A. v. National Resources Defense Council, he started what legal scholar Gary Lawson later called ânothing less than a bloodless coânstitutional revolution.â
At longā˛ last, on Wednesday, the Supreme Court will hear two cases that may signal the ęĻbeginning of the end to that revolution.
Article I of the ConstđĻšitution explicitly directs that âAll legislative Power herein granted shall be vested in a Congress of the United StađĄtes,â not regulatory agencies.
Yet Justice Stephensâ opinion found that âagenc[ies] may . . . properly relđ§y upon the incumbent administrationâs views of wise policyâ in âreasonablyâ defining statutory ambiguitđies.
The legal doctrineęĻ¯ that Chevron spawned became known as Chevron deference and former President Ronald Reaganâs White House counsel, Peter Wallison, pointed to it as âthe single most important reason the administrative state has continued tođ grow out of control.â
Forty years of regulatory and judicial tumult has ensued, finđ´ally crescendoing to a point that has compelled the Supreme Court to intervene.
Loper Bright Enterprises v. Raimondo, from the District of Columbia Circuit, andęĻ Relentless v. Department of Commerce, from the First Circuit, are now before the court.
Both are companies that fish for herring in New England and are family-owned and -operated, and both are subject to the Magnuson-Sâtevens Act, which governs fishery management in federal waters.
The act allowed the National Marine Fisheries Service to require herring boats, rđŽelatively small vessels that normally carry only five to six people, to also carry federal monitors to enforce of its regulations.
As a next step, however, and without any express statutory authorization, the NMFS decided to require Loper Bright and Relentless to also pay the salaries of these monitors, estimated by the NMFS to be $710 per day, an amount that can exceed the proāĩŠfits fđrom a dayâs fishing.
Both circuits validatđ¸đed this rule by pronouncing statutory silence to be an âambiguityâ that required Chevron deference.
When it accepted certiorari in both cases, the court posed a two-part question for the litigants to address: âWhether the Court should overrule Chevron or at least clarify that statutory silence concerning controvđersial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiringâ deference to the agency.â
These two options reflect the thoughts some ođf the justices have evidenced in their prior opinions.
For example, in his majority opinion in West Virginia v. EPA, Chief Justice John Roberts commented, âWe presume that âCongress intends to make major policy decisions itself, not leđ¤Ēave those decisions to agencies,â â citing US Telecom Assân v. FCC.
And in his dissent in City of Arlington (Texas) v. FCC, joined by Justice Samuel Alito, he wrote that âThe question [of] when an agency enjoys [interpretative authority] must be decided by a court, without deference to an agency.ââ
In their concurring opinion in West Virginia, JustięĻce Neil Gorsuch, joined by Justice Alito, referred to the âexplosive growth of the administrative state since 1970,â as well as former President Barrack Obamaâs 2014 promise to use executive orders and administrative rules to bypass Congress.
He wrote: âThe Constitution doeāšs not auđ§thorize agencies to use pen-and-phone regulations as substitutes for laws passed by the peopleâs representatives.â
Similarly, Justice Clarence Thomas, in his 2015 concurrię§ng opinion in Michigan v. EPA, asserted that the judicial power âreę§quires a court to exercise its independent judgment in interpreting and expounding upon the laws,â adding that âChevron deference precludes judges from exercising that judgment.â
Interest in this case has been immense, with more than 65 amicus briefęĻs filed with the court by a wide range of interested parties.
Somehow, it might be fitting for this courtâs ruling on the future of Chevron’s deference to also be rendered on June 25 â 40 years to the day after it was created.
When a decision will be forthcoming is unclear, but Chevron was originally released on June 25, 1984, days from the end of that yearâs termâ.
A ruling striking down that overly broad grant ofđļ power to federal agencies is long overdue.
Thomas M. Boyd is a former US assistant attorney general, appointed by President Ronald Reagan.