Supreme Court conservatives signal willingness to roll back the power of federal agencies

By Devan Cole, CNN

Washington (CNN) — The Supreme Court’s conservative supermajority spent several hours Wednesday attacking a longstanding legal doctrine that gives federal agencies wide latitude to create policies and regulations in various areas of life.

The justices heard two cases concerning the so-called Chevron deference, which emerged from a 1984 case. Oral arguments in the first case went well beyond the allotted hour, with the conservatives signaling their willingness to overturn the decades-old case and their liberal colleagues sounding the alarm on how such a reversal would upend how the federal government enforces all kinds of regulations.

Congress routinely writes open-ended, ambiguous laws that leave the policy details to agency officials. The Chevron deference stipulates that when disputes arise over regulation of an ambiguous law, judges should defer to agency interpretations, as long as the interpretations are reasonable.

Justice Neil Gorsuch, a conservative who has long expressed misgivings about the Chevron deference, at one point boiled his understanding of the doctrine down to one simple outcome when courts examine ambiguous statutes under its terms: “The government always wins.”

“Chevron is exploited against the individual and in favor of the government,” Gorsuch said, arguing that the doctrine allows agencies to win disputes brought against them by Social Security Disability applicants or veterans seeking benefits.

“I didn’t see a case cited – and perhaps I missed one – where Chevron wound up benefiting those kinds of peoples,” he said. “And it seems to me that it’s arguable – and certainly the other side makes this argument powerfully – that Chevron has this disparate impact on different classes of persons.”

It’s not always possible to determine how the court will rule based on what unfolded at oral arguments, but given the court’s posture on Wednesday, supporters of Chevron have good reason to believe the doctrine faces a real threat at the high court.

Roberts asks how much of Chevron is left

As the liberals on the bench peppered Roman Martinez, an attorney for one of the fisheries, with questions about how federal agencies would proceed with policymaking should the Chevron deference be axed by the court, Chief Justice John Roberts instead wondered how much the doctrine still mattered in the federal court system.

“I saw some study that said we haven’t relied on Chevron for 14 years,” he told Martinez. “Judges are used to deciding things and when they get around to doing it they tend to think what they’ve come up with is not only the best answer, but it’s the only answer. I just wonder how often this comes up.”

Martinez said that although Roberts’ court “hasn’t relied on Chevron since 2016,” lower courts still have to use it to navigate tricky cases concerning agency power, including, he noted, the two heard on Wednesday.

“The reason that the problem is there is because you’ve told lower courts how to do their interpretation and as long as that instruction is out there, there are going to be a lot of cases that get it wrong and you’re not going to want to be in the business of sort of error correction on each one,” he added later.

Liberals warn of judges becoming ‘über legislators’

The three liberal justices warned during Wednesday’s pair of arguments that overturning the 1984 decision in Chevron would force courts to make policy decisions that they argue are better left for experts employed by federal agencies.

“I see Chevron as doing the very important work of helping courts stay away from policymaking,” Justice Ketanji Brown Jackson said, adding later: “I’m worried about the courts becoming über legislators.”

Fellow liberal Justice Elena Kagan, who took the lead in pressing Chevron’s challengers over their position, stressed that federal judges were not equipped to make decisions in some complex areas, offering artificial intelligence as one place she thought experts, not judges, should be making critical policy decisions.

“Congress knows that this court and lower courts are not competent with respect to deciding all the questions about AI that are going to come up in the future. And what Congress wants is, we presume, for people who actually know about AI to decide those questions,” she said. “We don’t even know what the questions are about AI, let alone the answers to them.”

Solicitor General Elizabeth Prelogar, who argued in defense of Chevron in both cases heard Wednesday, similarly warned of the “instability” in US law that would be unleashed if the court decides to do away with the doctrine.

“Overruling Chevron,” she told the justices, “would be an even greater and unwarranted shock to the legal system.”

Barrett raises concerns about ‘disruptive consequences’

At various points on Wednesday, Justice Amy Coney Barrett raised concerns about the fate of past cases in which judges applied the Chevron doctrine and eventually deferred to an agency’s interpretation of a statute when it created a new policy if the court overturns the 1984 case.

“Isn’t it inviting a flood of litigation, even if for the moment those holdings stay intact?” she asked Martinez.

“I think it’s true that people could come and say, ‘look, the interpretive methods have changed since this bottom-line holding was issued. And we think that that, you know, a different result now should apply.’ And that’s why courts consider requests to overturn precedent,” he replied.

The conservative justice later posed a similar question to Paul Clement, an attorney representing the fishery in the other case, asking what he thought about “the disruptive consequences of overruling (Chevron).”

Fisheries avoid the spotlight while Gorsuch’s mother gets some praise

Notably, the Atlantic fishery litigants at the center of the disputes didn’t dominate the arguments on Wednesday. Instead, the justices focused largely on the straightforward question before them: whether they should overturn Chevron.

The pair of cases test a National Marine Fisheries Service mandate that the fishing vessels pay the cost of certain onboard observers who monitor catches. The two fisheries claim the agency lacked authority to force vessel owners to pay for third-party monitoring services.

“I think what we really care about is prospectively, both with respect to the fishing regulation here, but also with respect to other cases that come forward to the courts, making sure that courts are the ones doing the interpreting and not agencies,” Martinez told the justices.

And, in a quirky twist, Justice Gorsuch’s late mother, Anne Gorsuch, was brought up early on by Martinez.

The court’s 1984 ruling in Chevron grew out of challenges to Environmental Protection Agency policy regarding “stationary sources” of air pollution (such as factories and power plants) under then-administrator Anne Gorsuch.

As Kagan asked the attorney about various scenarios involving a court’s deference to agency interpretation of a law, she raised the facts of the Chevron case, saying: “Is a ‘stationary source’ in the Clean Air Act – does it refer to whole plants or to each pollution-emitting device within the plant?”

“We think that the decision in Chevron was … reflected the best interpretation, with much respect to Justice Gorsuch’s mother’s EPA,” Martinez replied. “We think that that was the best interpretation.”

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CNN’s Joan Biskupic contributed to this report.