The Supreme Court is hearing arguments on Wednesday over whether to overturn a key precedent, one that has empowered executive agencies and frustrated business groups hostile to government regulation.
The court, which has in recent years rejected precedents on abortion and affirmative action and struck down regulations addressing climate change, student loans and coronavirus vaccines, is considering the fate of a foundational doctrine of administrative law called Chevron deference.
The doctrine takes its name from a 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law. Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts.
“Overruling Chevron,” Solicitor General Elizabeth B. Prelogar wrote in a Supreme Court brief defending the doctrine, “would be a convulsive shock to the legal system.”
Under Chevron, judges must defer to agencies’ reasonable interpretations of ambiguous statutes. In close cases, and there are many, the views of the agency take priority even if courts might have ruled differently.
The cases the justices will consider were brought on behalf of two sets of fishermen, one in New Jersey and the other in Rhode Island. They objected to a maritime agency’s interpretation of a 1976 law that requires them to carry observers to gather data to prevent overfishing.
The contested interpretation, set out in a 2020 regulation adopted by the National Marine Fisheries Service, required the fishermen not only to transport the observers but also to pay for them, at a rate of about $700 a day.
The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the regulation in the case from New Jersey, citing Chevron.
“Congress has delegated broad authority to an agency with expertise and experience within a specific industry,” Judge Judith Rogers wrote for the majority, adding that “the court’s review thus is limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency’s interpretation is reasonable.”
It was, she wrote. “Although the act may not unambiguously resolve whether the service can require industry-funded monitoring,” she wrote, “the service’s interpretation of the act as allowing it to do so is reasonable.”
A unanimous three-judge panel of the First Circuit said pretty much the same thing in the case from Rhode Island. “At the very least,” Judge William J. Kayatta Jr. wrote for the panel, the agency’s interpretation of the 1976 law was “certainly reasonable.”
Justice Ketanji Brown Jackson is recused from the New Jersey case, Loper Bright Enterprises v. Raimondo, No. 22-451, having participated in it as a federal appeals court judge. In an unusual move, the Supreme Court agreed to hear a nearly identical case from Rhode Island, Relentless Inc. v. Department of Commerce, No. 22-1219, five months after it agreed to hear the one from New Jersey.
That may have been a sign that the court wanted to have nine members in place as it considers whether to overturn a major precedent.
The cases have an unusual feature, as Ms. Prelogar explained in a brief defending Chevron. “In practice, the 2020 rule’s monitoring provisions have had no financial impact on regulated vessels,” the brief said, adding that the program was suspended last year and that the agency reimbursed the monitoring costs that had been incurred under it.
The fishermen are represented by two conservative groups, Cause of Action Institute and the New Civil Liberties Alliance. Both have financial ties to the network of foundations and advocacy organizations funded by Charles Koch, a billionaire who has long supported conservative and libertarian causes.