Supreme Court accepts case that challenges authority of federal agencies

The Supreme Court on Monday said it would reconsider whether judges should defer to federal agencies when interpreting ambiguous federal laws, a decades-old precedent long targeted by conservatives concerned about the power of the administrative state.

As the Supreme Court has become more conservative, the justices have grown less likely to follow the precedent established in 1984 in Chevron U.S.A. v. Natural Resources Defense Council. But lower courts are bound to rely on the case because the Supreme Court has never officially renounced it.

The precedent has been extensively used by the U.S. government in arguing environmental, financial and consumer protection cases.

“This case is a very big deal because it could be a vehicle for the Court to dramatically reduce agencies’ authority to regulate under existing statutes,” University of Chicago law professor Jonathan Masur said in an emailed statement. “This would be particularly likely to affect the [Environmental Protection Agency], which has relied heavily upon Chevron in recent years.”

A split panel of the U.S. Court of Appeals for the D.C. Circuit used the Chevron doctrine in deciding the case the Supreme Court added to its docket Monday: whether the government can force herring fishermen off the coast of New England to fund a program that provides federal monitors for their operations. The program is overseen by the National Marine Fisheries Service.

A coalition of commercial fishing firms in New Jersey told the court in its petition that the Magnuson-Stevens Act requires vessel owners to make room on board for federal monitors, without requiring the owners to pay those monitors.

“But without any express statutory authorization, the National Marine Fisheries Service (NMFS) has decided to go one very large step further and require petitioners to pay the salaries of government-mandated monitors who take up valuable space on their vessels and oversee their operations,” the petition states.

Lower courts have ruled for the government. Two judges on a D.C. Circuit panel said the fisheries service was justified to interpret the statute as authorizing the payment program, even though there was no express authority in the relevant statute of the Magnuson-Stevens Act. But the third judge said his colleagues were mistaken in allowing an agency to fill in the requirement based on language found elsewhere in the law.

The fishing companies told the Supreme Court that the lower-court decision “authorizes agencies to force the governed to quarter and pay for their regulatory overseers without clear congressional authorization.” The petition said “the logical explanation for the statutory silence is that Congress did not intend to grant the agency such a dangerous and uncabined authority.”

Washington lawyer Paul D. Clement, who was solicitor general under President George W. Bush and represents the fishing firms, said the court’s decision to take the case could not only “deliver justice to these fishermen but also … reconsider a doctrine that has enabled the widespread expansion of unchecked executive authority.”

The fishery service’s rule was developed during the Trump administration to make sure the industry complied with regulations meant to deter overfishing. The Biden administration defended it, and the Chevron doctrine, when the fishing companies sued.

“Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop,” the government said in its brief. It said the doctrine “promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes.”

The Supreme Court will decide the case in the term that begins in October, and will be shorthanded when it does so - Justice Ketanji Brown Jackson recused herself from the case. As is customary, she did not give a reason, but she served on the D.C. Circuit until last June.

The court also said Monday that it would take a case focused on what financial whistleblowers must prove in retaliation lawsuits against their employers.

In other orders Monday, the court turned down a challenge to an Indiana law that requires the cremation or burial of embryonic or fetal remains following an abortion. There were no noted dissents to the decision not to review the law.