Supreme Court Signals It Will Claw Back Federal Agency Power

Last week, the Supreme Court signaled that it will likely cut back the regulatory power of federal agencies when several justices indicated during a pair of arguments they were ready to overrule a legal doctrine that has given agencies authority for decades. The justices put the Biden administration’s top SCOTUS lawyer on defense in her attempts to preserve Chevron deference, which guides courts to defer to agencies’ interpretation of federal law if it could have more than one meaning.

While many conservative justices argued against the practice, it’s unclear whether a majority would completely overrule Chevron. Rather, SCOTUS could narrow the scope of the Chevron deference, as it has strengthened presidential administrations’ ability to regulate many aspects of daily life, including cryptocurrency, artificial intelligence, environmental protections, and more.

The Hill noted that three conservative SCOTUS members were particularly vocal about their concerns surrounding the precedent: Justices Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch. “The government always wins,” said Gorsuch. Other critics have noted a lack of consensus on when a federal law is vague enough to defer to an agency.

Alternatively, Solicitor General Elizabeth Prelogar defended the precedent on the federal government’s behalf: “The Chevron framework is a bedrock principle of administrative law,” she said, adding that overruling it “should require a truly extraordinary justification, and petitioners don’t have one.”

Many also questioned whether overturning the practice would cause excess litigation, as people who lost cases due to Chevron would want to have their issues reheard. However, conservative justices contended that Chevron itself has created shocks by allowing the executive branch to have inconsistent interpretations.

“The reality of how this works is Chevron itself has shocks to the system when a new administration comes in,” said Kavanaugh. The justices considered replacing Chevron with Skidmore, a test where a judge would decide to defer to an agency if its argument is persuasive enough.

SCOTUS considered the dispute through two cases, Loper Bright Enterprises v. Raymond and Relentless, Inc. V. Department of Commerce, and is expected to reach decisions by the end of June.