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    SCOTUS to put the administrative state under scrutiny
    • October 26, 2023

    The U.S. Supreme Court has agreed to hear two cases that call into question so-called “Chevron deference,” a judicial doctrine that has enabled government agencies to greatly expand their power beyond the authority granted by Congress.

    The cases are Loper Bright Enterprises v. Raimondo and Relentless, Inc., v. Department of Commerce. Both nominally involve challenges to a rule promulgated by the National Marine Fisheries Service that required commercial fishermen to pay $710 per day for an at-sea monitoring program. The fishermen argued that a 1976 law, the Magnuson-Stevens Fishery Conservation and Management Act, did not authorize the service to create an industry-funded monitoring program.

    But the issue the court has agreed to decide goes far beyond the fishing industry. The justices have chosen these cases to review whether it is now time to toss “Chevron deference” into the dustbin of history.

    The Chevron doctrine dates to the Supreme Court’s 1984 decision in Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc. In that case, the justices created a legal test to determine when a court should defer to an administrative agency’s interpretation or decision. When an agency’s action was not unreasonable, and Congress had left the issue ambiguous, the justices said, a court should simply defer to the agency’s judgment.

    What this has meant in practice was that administrative agencies themselves became legislatures, courts, judges and juries in cases of disputes over regulations and administrative interpretation and enforcement of them.

    This has had an extremely wide-ranging impact and has given rise to what is sometimes called “the administrative state.” Where Congress did not legislate, administrative agencies felt empowered to jump in and create regulations that had the force of law, but without a vote by any elected official.

    The Supreme Court already waded into this topic with its June 2022 decision in West Virginia v. Environmental Protection Agency, in which the justices said the EPA regulations that required the closure of coal-fired electricity plants went beyond what Congress had authorized. Citing the “major questions” doctrine, the court held that agencies may not adopt new rules or stretch existing rules in a way that’s transformational to the economy unless Congress has specifically authorized such a rule to address a specific problem.

    Typically, if a business, state or local government or individual American wishes to challenge any rule of any federal agency, the challenge first goes through the agency’s own adjudication process. When all remedies are exhausted, the challenge may then be brought in court, but the courts have been required to defer to the agency’s judgment unless it is “unreasonable.” Challenging a rule or a ruling is a lengthy process, largely controlled by the agency itself, prohibitively expensive, and because of the Chevron deference doctrine, almost certainly destined to fail.

    Administrative agencies have become a fourth branch of government, one that is largely run by civil servants who control policy but cannot be fired.

    If Congress wishes to address climate change, pandemic prevention or any other issue, it can pass laws that authorize administrative agencies to adopt regulations for a specific purpose. But if Congress chooses not to do that, it is not appropriate for federal agencies to impose their own solutions to problems and force Americans to comply with their rules.

    “Chevron deference” has enabled that practice, and it’s time for it to end.

    ​ Orange County Register