For many decades, the Far Right has sought to undermine our ability to adopt important health and safety protections that get in the way of the corporate bottom line. Pending Supreme Court cases could overrule decades of precedent and make it much harder for federal agencies to impose reasonable limits on powerful corporations.
Two related cases involve an important principle called the “Chevron Doctrine.” A third case threatens to revive the “nondelegation doctrine,” which was used to strike down New Deal reforms in the 1930s.
Undercutting Agency Flexibility By Eliminating the “Chevron Doctrine”
Conservatives are hoping the Court will overrule its longtime practice of upholding federal agencies’ regulations as long as they are reasonable interpretations of congressional statutes. This would greatly expand judges’ ability to strike down vital health and safety protections. The Court is considering ending this practice in two cases: Loper Bright Enterprise v. Raimondo and Relentless v. Department of Commerce.
What is the Chevron doctrine?
Several decades ago, the Supreme Court made clear that administrative agencies have significant flexibility in how they carry out their missions. This came in an environmental case involving Chevron, so it’s called “the Chevron doctrine.” Judges are supposed to uphold an agency’s interpretation of ambiguous congressional statutes that empower it as long as its interpretation is reasonable – even if that judge would have chosen a different interpretation on their own.
How does the Chevron doctrine help people?
The agency flexibility set out in Chevron is critical, since Congress has nowhere near the resources nor the expertise to address all the details of every issue on which it legislates. That’s why Congress delegates authority to particular agencies. Sometimes Congress instructs them very specifically on details. But usually, it gives them parameters within which to work. For instance, the EPA has been able to interpret the Clean Air Act in a variety of ways to more effectively address advances in scientific knowledge, technology, and popular understanding.
This principle also makes executive agencies more answerable to the popular will. When the people elect a new president, that person is given the flexibility to carry out their agenda. Policies are able to change from administration to administration in response to the votes of the American people, just as they are supposed to. For instance, in areas ranging from environmental safety to telecom regulation to protecting the rights of working people, the Biden administration has mostly been able to carry out the policy changes Americans voted for in the 2020 election.
What is the agency decision at the center of these related cases?
The agency decision at issue in these cases is based on a law passed by Congress in 1976 authorizing the creation of a comprehensive fishery management plan by an agency called the National Marine Fisheries Service. Under a 2020 regulation, the cost of monitoring Atlantic herring is paid in part by the government and in part by businesses engaged in fishing for herring. Some of the businesses claim that the 1976 law doesn’t give the Service the authority to make them contribute financially. But the First Circuit (in Relentless) and the D.C. Circuit (in Loper Bright) applied Chevron and found that the Service’s interpretation of the law was reasonable.
What happened at oral arguments?
After oral arguments, many observers predicted that the conservative justices would eliminate or significantly scale back Chevron deference. The three progressive justices were the only ones who seemed intent on keeping it. They stated that agencies have expertise that Congress lacks, which makes them better able to effectively fill in the gaps that Congress has not explicitly addressed.
Justice Kagan gave the example of artificial intelligence, where the issues we face in a few years may be unpredictable today and where “Congress can hardly see a week in the future.” If Congress created an expert agency to set rules for AI, Congress would prefer to have that agency’s policy experts rather than judges making future policy decisions.
In contrast, several of the conservative justices seemed hostile to Chevron deference. For instance, Justice Kavanaugh said it caused a “shock to the system” every four to eight years when new administrations adopt new policies. Justice Alito suggested that since courts routinely interpret ambiguous statutes in other contexts, they should do so in cases involving federal agencies.
What happens if the majority abandons the Chevron Doctrine?
Overturning Chevron would constitute an aggressive attack on what the Far Right refers to as “the administrative state.” Any agency action opposed by wealthy interests would be much more likely than now to be struck down by a conservative judge who simply disagrees with the policy. That’s because judges would be empowered to impose their own interpretations of the law over those of the presidential administration elected by the people.
A Constitutional Attack to Prevent Agencies From Protecting Us
The Relentless and Raimondo cases involve how to interpret statutes. The parties in Securities and Exchange Commission (SEC) v. Jarkesy are taking a constitutional route to limiting the ability of administrative agencies to protect the public: the “nondelegation doctrine.” This attack goes to the heart of Congress’s ability to create effective agencies to carry out its instructions.
What is the nondelegation doctrine?
Under the nondelegation doctrine, Congress can’t hand over its ability to make laws to another part of government. In general, under the Constitution, Congress makes laws and the executive branch carries them out. That’s part of the “separation of powers” that is designed to prevent any one branch of government from having too much power.
But the world is far more complex than it was in 1789, and the Constitution gives Congress the flexibility to function in the modern world. Congress can delegate a significant amount of authority to federal agencies that it creates with specialized expertise to effectively address particular issues.
The Supreme Court has struck down laws under the nondelegation doctrine only two times in its history, both to invalidate parts of the New Deal in 1935. But since then, the Court has recognized Congress’s power under the Constitution to delegate rulemaking authority to regulatory agencies that—unlike Congress—have the expertise that is best suited to address extremely complex issues. Generally, the Court simply requires that Congress provide some “intelligible principle” to guide the executive branch in exercising the authority delegated to it.
What happened before the SEC?
The Securities and Exchange Commission (SEC) was created in the 1930s to carry out congressional mandates to protect investors. Beginning in 2011, the SEC investigated George Jarkesy and an investment advisory firm he had created for suspected securities fraud.
Under the law passed by Congress, the SEC has a choice in how to enforce the prohibition against securities fraud. It can go to a federal court (which provides for trial by jury), or it could hold an agency proceeding (which doesn’t have a jury and is before an administrative law judge). In this case, the SEC opted for the agency proceeding.
After a hearing, an administrative law judge weighed the evidence and concluded that Jarkesy and his firm had committed fraud. So the SEC ordered them to stop violating the law and to pay a penalty. Instead, they sued the SEC.
What did the lower court do?
A divided panel of the Fifth Circuit ruled that Congress had violated the nondelegation doctrine. According to the two judges in the majority, Congress failed to give the SEC an “intelligible principle” to guide its decision on whether to enforce the law via an agency hearing or through a federal court. Therefore, they concluded, this was an unconstitutional delegation of legislative authority.
In contrast, the dissenting judge wrote that the power to pick a forum for enforcement isn’t a legislative decision at all. He concluded that this is the type of decision typically left up to the executive branch, similar to the way in which a prosecutor decides which statutes to prosecute someone for violating.
However, this was not the only basis for the Fifth Circuit’s decision. It also based its decision on two other legal issues unrelated to the nondelegation doctrine.
What happened during oral arguments?
The justices spent all of the oral arguments focused on one of those other issues: whether the SEC proceeding violated Jarkesy’s right to a trial before a jury. The justices appeared divided on this issue, which does not raise the kind of threat to undo the New Deal that the nondelegation doctrine does.
Since the justices did not even mention the nondelegation doctrine during oral arguments, it seems unlikely that the Court will base its opinion on that issue.
What would be the impact of the Supreme Court’s decision if it is based on the nondelegation doctrine?
Several of the far-right justices have signaled openness to bringing back the pre-New Deal conception of a Congress with a weakened ability to delegate authority to federal agencies. Although it seems unlikely based on oral arguments, a majority could use this case to take a step in that direction. It would then be up to lower court judges to decide how to apply the new standard in lawsuits challenging any number of federal agency health and safety protections.
Conclusion
Decisions in these cases are expected by the end of June or early July, when the Court’s current term ends.