The Supreme Court on Monday took up a case that could strike a blow to federal agencies’ power, giving the high court an opportunity to overrule decades-old precedent that has permitted courts to defer to executive branch bureaus on certain matters.
The high court announced in its Monday orders it would review the case of Loper Bright Enterprises v. Raimondo, which was filed by anglers who complain that the National Marine Fisheries Service has run amok with a plan to charge fishing vessels as much as $700 a day to hire a monitor to police their catch.
The anglers lost in a 2-1 federal appeals court ruling in which the majority cited Chevron in deferring to the agency’s judgment.
“Judges are supposed to be a check on executive-branch abuses, but Chevron deference turns that upside down and transforms judges into rubber stamps for the whims of the federal bureaucracy,” Stefan Axelsson, captain of a fishing vessel in New Jersey, wrote in the National Review last month.
The Fisheries Service is delaying the program until next year. The anglers asked the high court to hear their case and get a final ruling on what the law allows.
Justice Ketanji Brown Jackson did not participate in the court’s decision to hear the matter.
The court did not note in its order which justices voted to review the dispute, but it took at least four justices interested in weighing whether the high court should overrule its 1984 precedent in Chevron U.S.A. v. Natural Resources Defense Council.
“Chevron deference” is the term of art that lawyers coined to denote how courts have treated the 1984 ruling, which involved a fight between the energy giant and the Environmental Protection Agency and its environmental allies. In a 6-3 ruling, the high court said the EPA’s interpretation of a law was reasonable and that courts should defer to agency judgment in cases in which the law was ambiguous.
To defenders, it blazed a path to good government, putting the experts at federal agencies in charge of the finer points of policymaking.
To detractors, Chevron is the stuff of Orwellian dystopias, siphoning massive amounts of political power away from Congress and the courts and turning it over to unelected and anonymous bureaucrats.
In the ensuing decades, the case has become legendary, less for what it said than how it has been used by some lower courts — particularly the appeals court in Washington that handles so many agency cases — to create a presumption in favor of an agency’s decisions.
Justice Neil M. Gorsuch has written in a prior dissent that it was time to do away with the precedent.
“At this late hour, the whole project deserves a tombstone no one can miss,” Justice Gorsuch said in a dissent in November.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.