When Justice John Paul Stephens issued his 1984 opinion in Chevron U.S.A. v. National Resources Defense Council, he started what legal scholar Gary Lawson later called “nothing less than a bloodless constitutional revolution.”
At long last, on Wednesday, the Supreme Court will hear two cases that may signal the beginning of the end to that revolution.
Article I of the Constitution explicitly directs that “All legislative Power herein granted shall be vested in a Congress of the United States,” not regulatory agencies.
Yet Justice Stephens’ opinion found that “agenc[ies] may . . . properly rely upon the incumbent administration’s views of wise policy” in “reasonably” defining statutory ambiguities.
The legal doctrine that Chevron spawned became known as Chevron deference and former President Ronald Reagan’s White House counsel, Peter Wallison, pointed to it as “the single most important reason the administrative state has continued to grow out of control.”
Forty years of regulatory and judicial tumult has ensued, finally crescendoing to a point that has compelled the Supreme Court to intervene.
Loper Bright Enterprises v. Raimondo, from the District of Columbia Circuit, and 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-Stevens Act, which governs fishery management in federal waters.
The act allowed the National Marine Fisheries Service to require herring boats, relatively 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 profits from a day’s fishing.
Both circuits validated this rule by pronouncing statutory silence to be an “ambiguity” that required Chevron deference.
When it accepted certiorari in both cases, the court posed a two-part question for the litigants to address: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”
These two options reflect the thoughts some of the justices have evidenced in their prior opinions.
For example, in his majority opinion in West Virginia v. EPA, Chief Justice John Roberts commented, “We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies,’ ” citing US Telecom Ass’n v. FCC.
And in his dissent in City of Arlington (Texas) v. FCC, joined by Justice Samuel Alito, he wrote that “The question [of] when an agency enjoys [interpretative authority] must be decided by a court, without deference to an agency.”
In their concurring opinion in West Virginia, Justice Neil Gorsuch, joined by Justice Alito, referred to the “explosive growth of the administrative state since 1970,” as well as former President Barrack Obama’s 2014 promise to use executive orders and administrative rules to bypass Congress.
He wrote: “The Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
Similarly, Justice Clarence Thomas, in his 2015 concurring opinion in Michigan v. EPA, asserted that the judicial power “requires a court to exercise its independent judgment in interpreting and expounding upon the laws,” adding that “Chevron deference precludes judges from exercising that judgment.”
Interest in this case has been immense, with more than 65 amicus briefs filed with the court by a wide range of interested parties.
Somehow, it might be fitting for this court’s ruling on the future of Chevron’s deference to also be rendered on June 25 — 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 year’s term.
A ruling striking down that overly broad grant of power to federal agencies is long overdue.
Thomas M. Boyd is a former US assistant attorney general, appointed by President Ronald Reagan.
