Will the Supreme Court Impose a New ‘Relentless’ Doctrine to Replace Chevron?

On January 17, the Supreme Court heard the companion cases Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The Court has an opportunity to overturn what many believe is one of the most problematic Supreme Court doctrines in recent history: Chevron deference.  Based upon the oral arguments, it appears that the Court seems prepared to do so. It would be a welcome check on agency overreach.

Chevron deference, named after a 1984 Supreme Court decision, directs federal courts to defer to a government agency’s interpretation of a statute when it is deemed that the statute is ambiguous. Under Chevron deference, the executive agency charged with applying a statute determine itself that the statute is ambiguous. This has conferred a lot of power to unelected bureaucrats within the executive agencies.

The companion cases before the Court last week demonstrate well why Chevron is problematic. Both stem from the same set of facts. The National Marine Fisheries Service, a federal agency housed deep within the executive branch, decided to make fishermen pay for the agents who monitor their own fishing practices. The federal statute did charge the executive branch with placing compliance agents in fishing boats. But it was silent on who should bear that cost. Conveniently, the government chose to “interpret” the statute in such a way as to make fishermen pay.

When the fishermen sued to prevent their industry from having to bear those costs, the courts deferred to the National Marine Fisheries Service, citing Chevron deference. The lower court’s rationale was that, because Congress did not specifically say who paid for the compliance agents, then it is ambiguous. Under Chevron deference, the executive agency charged with applying a statute can interpret the ambiguous rule itself. The courts, as a result, are left out of the statutory interpretation so long as the agency is being “reasonable.”

But this becomes problematic. A clear problem, one articulated by both the attorney for the fishermen and several of the “conservative” justices, is that agencies have new leadership every four years. Each time there is a new president, new cabinet members are appointed. The “interpretation” of the statute becomes changeable. There is no predictability. A power plant once in compliance would become non-compliant, despite operating under the exact same law.

A second problem articulated is that this takes the courts out of the equation. Once a statute has been deemed ambiguous on a question, whether or not Congress even mentioned the question, the agency is then given broad latitude to run with it. This power is unchecked because anyone challenging what the agency would do would only be able to go to the courts, who then defer right back to the agency. It effectively neuters the judicial branch.

The third articulated problem is that it gives the executive agencies policymaking power that it was not given. It is true that the Supreme Court has permitted Congress to delegate policymaking power to the executive agencies. But even that power is limited. Congress cannot simply give an agency broad authority. Rather, it must clearly define the agency’s authority, including the boundaries for that agency’s actions. If an agency is not forced to act within its clearly defined delegated authority, and there is no court to keep it in check, then the executive agency, not Congress, creates final law. That is unconstitutional.

The Solicitor General argued, primarily, that overturning Chevron would cause a host of practical problems. She argued that this would cause a flood of litigation where previous courts had deferred to the agency. She also argued that Congress has passed ambiguous laws, knowing that Chevron would give the agencies authority where it was unclear (implying that overturning Chevron would cut against Congressional intent). But these arguments are merely policy arguments. Often, policy arguments do not have strong footing.

Justices Gorsuch, Alito, Thomas, Kavanaugh, and Barrett seemed very understanding of the problems Chevron creates. Reading between the lines, these justices seem interested in a similar doctrine created by the Supreme Court. The Skidmore doctrine, named after a separate case, says that, once authority is clearly given to an agency, its actions are given deference. The application of law can give the agencies latitude. The justice’s interest indicates that perhaps the new order of administrative law will be to return judicial review of statutory meaning back to the courts, while leaving the executive agencies the ability to operate within clearly delegated powers.

That would be a positive development. Government agencies should not be able to declare that a law is “ambiguous” and then apply the law in ways that were not intended by Congress. Congress, and only Congress (the only party here elected by the people), was given that authority by the Constitution. And courts should not be removed from the process of interpreting statutes because the Constitution gives the judicial branch, and only the judicial branch, that authority. That was the intended order of government by the Framers. Perhaps, soon, the “Relentless doctrine” will restore that order.

 

 

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