Supreme Court has major opportunity to check federal overreach in January

 October 17, 2023

The power of unaccountable federal bureaucrats is up for a reckoning at the Supreme Court in January.

The nation's highest court set a date to hear two cases on the Chevron deference, a doctrine that has allowed federal agencies to interpret the scope of their own powers under federal law.

The Supreme Court will hear the complaint of New England fishermen who are required to host federal monitors on their boats at their own expense.

Supreme Court to weigh regulatory power

The fishermen argue that Congress never authorized this blatant overreach - and yet, under Chevron, the fishermen have lost in lower courts.

The Supreme Court now has an opportunity to overturn Chevron, a bedrock precedent of administrative law which enjoins courts to yield to an agency's own interpretation of its powers when the law is unclear.

"When Congress decided to statutorily require permitted vessels to carry observers, no citizen of New England could tell from reading the proposed statute that the fishing vessels would have to pay for these officers doing work for the government," lawyers for the fishermen wrote in their petition.

The two cases, Loper Bright Enterprises v. Raimondo, and Relentless, Inc. v. Department of Commerce, are virtually identical. The only difference is that Ketanji Brown Jackson will weigh in on the latter case; she recused herself from the former because of her previous involvement.

The administrative state

Spelling out the problem with Chevron, lawyers for the fishermen say that lower courts "see ambiguity everywhere" and "have abdicated the core judicial responsibility of statutory construction to executive-branch agencies," resulting in an explosion of unlawful regulation.

The Biden administration is defending Chevron, the repeal of which could spell problems for Biden's ambitious regulatory agenda, especially on issues like climate change.

Repealing Chevron is a longtime goal of conservatives seeking to curtail the administrative state, which many regard as an oppressive, unconstitutional fourth branch of government.

The conservative Supreme Court has shown a willingness to reverse precedent that has infuriated the left. It's unclear if the court would be willing to unsettle the status quo in this case, but two of the justices have sharply questioned Chevron. 

Neil Gorsuch has opined that the precedent "deserves a tombstone no one can miss,” while Clarence Thomas has similarly argued that Chevron is "in serious tension with the Constitution."

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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