WASHINGTON (CN) — Decades of precedent appeared to be on the chopping block on Wednesday as the justices reviewed who gets deference when interpreting federal laws.
The doubleheader before the court examined the court’s 1984 ruling in Chevron USA Inc. v. NRDC. Becoming the backbone of federal government operations, Chevron gives federal agencies priority in saying how laws should be implemented. Lawmakers can give agencies a charge when implementing new regulations but implementing those rules often takes more specificity than Congress can provide.
Chevron has fallen out of favor with the conservative supermajority on the high court in recent years and during Wednesday’s marathon oral arguments, it appeared the court was ready to throw the ruling out for good.
Chief Justice John Roberts noted that the court hasn’t relied on the ruling in the past decade, asking, “Have we overruled it in practice?”
Several fisheries asked the court to officially overturn Chevron in a challenge to monitoring requirements. The National Marine Fisheries Service implemented a rule requiring the companies to pay for the required third-party monitors.
Relentless and Loper Bright Enterprises claimed the Magnuson-Stevens Act did not authorize this rule. They lost their cases, with the lower courts finding that the federal government should get deference in interpreting laws even if they do not specifically state fisheries would be on the hook for these costs.
The fisheries urged the justices to return the federal process to its intended role, giving judges the authority to make decisions.
“Article III empowers judges to say what the law is,” Roman Martinez, an attorney with Latham & Watkins representing Relentless, said. “It requires them to interpret federal statutes using their best and independent judgment. Chevron undermines that duty.”
Roberts said it was unnatural for judges to not want to make decisions.
“Judges are used to deciding things, and when they get around to doing it, they tend to think what they've come up with is not only the best answer, but it's the only answer,” the George W. Bush appointee said.
Justice Neil Gorsuch showed strong opposition to Chevron, seeming receptive to arguments that the ruling forced courts to give up their interpretive rule. The Donald Trump appointee said the court had already tried to clarify the deference agencies should get but lower courts still have trouble applying the standard.
“Even in a case involving herring fishermen and the question whether they have to pay for government officials to be onboard 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,” Gorsuch said.
Justice Brett Kavanaugh disagreed that Chevron creates stability within federal regulations.
"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,” the Trump appointee said.
Kavanaugh was not the only justice with this view. There was concern from the bench that Chevron created a system that allowed laws to shift as the executive branch changed hands.
The court’s liberal wing, however, fought this presumption. Justice Ketanji Brown Jackson said it was part of the democratic system that the executive branch’s goals would change as administrations changed hands.
“After all, taking into account the policy goals of the new administration reflects a democratic structure where we have the new administration being elected by the people on the basis of certain policy determinations,” Jackson said.
The Joe Biden appointee recused from the second case because of her involvement with the case at the lower courts.
Justice Elena Kagan said Chevron served as a barrier to ideological and partisan outcomes. The Barack Obama appointee said judges should have humility and defer to experts when laws were not clear.
“It's best to defer to people who do know, who have had long experience on the ground, who have seen thousands of these kinds of situations,” Kagan said. “Judges should know what they don't know.”
Justice Sonia Sotomayor said it would be difficult to say there was a best answer in many disputes over ambiguous statutes. Sotomayor said allowing judges to choose the answer would only result in what the majority favored, not necessarily the best solution.
“I don't know how you can say there's a best answer when justices of this court routinely disagree and we routinely disagree at 5-4,” the Obama appointee said. “Is the best answer simply a majority answer? I don't think so.”
The three liberal justices were concerned that turning over this deference would turn judges into policymakers.
“I suppose judicial policymaking is very stable precisely because we are not accountable to the people and have lifetime appointments,” Jackson said. “So if we have gaps and ambiguities in statutes and the judiciary is coming in to fill them, I suppose we would have a something of a separation of powers concern related to judicial policymaking? Am I wrong to be worried about that?”
Because Chevron has been utilized for decades, overruling it could threaten a number of other rulings. U.S. Solicitor General Elizabeth Prelogar said there are almost 80 rulings that could be challenged if the court throws out Chevron.
“Thousands of judicial decisions sustaining an agency's rulemaking or adjudication as reasonable would be open to challenge, and that profound disruption is especially unwarranted because Congress could modify or overrule the Chevron framework at any time,” Prelogar said.
Prelogar noted Congress has considered proposals to overrule Chevron many times but has never done so.
“Instead, Congress has legislated for decades with Chevron as the background rule informing the degree of discretion that Congress has chosen to confer on federal agencies,” Prelogar said.
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