The Supreme Court in recent years has moved away from Chevron, the Cato Institute noted in a survey of recent rulings it described in a “friend of the court” brief urging the justices to overturn Chevron. Wade on a 5-4 vote, unleashing a wave of criticism that the justices were disrespecting the legal principle that precedents should only be reversed under extraordinary circumstances. Last June, the court took the momentous decision to overturn Roe v. The new case on regulators’ powers will also test the high court’s continuing willingness to overturn longstanding precedents rather than quietly whittle away at them. Justice Clarence Thomas wrote in 2020 that “C hevron is in serious tension with the Constitution,” repudiating one of his own majority opinions from 2005 concluding that the Federal Communications Commission could invoke Chevron deference to justify decisions regulating internet services. “We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.” “At this late hour, the whole project deserves a tombstone no one can miss,” he wrote as the court passed up a Chevron-related case in November. Just last fall, Justice Neil Gorsuch said the court had flinched too many times. Several justices have railed against Chevron in recent years, sometimes openly bridling at their colleagues’ unwillingness to deliver the coup de grace and overturn the case that critics say displaces judges from their usual role of determining what the law means. The Supreme Court’s decision to hear the fishing case, which is likely to be argued this fall or winter with a decision in the first half of 2024, indicates that at least four justices wanted to grant review - and that those who want to overturn Chevron feel they may now have five votes to do so. In a narrow and unanimous opinion, the court ruled against the Medicare’s managers - but without even mentioning Chevron. Last June, for instance, the court decided a case involving Medicare reimbursements in which some conservatives and business groups had urged the justices to overturn Chevron. However, most of the cases managed to brush back the regulators by rejecting their legal interpretations. In recent years, the high court has taken up a series of cases that seemed to spell doom for Chevron deference, but has stepped back from the brink each time. That leaves the potential demise of Chevron deference as the only issue to be briefed and argued in the case, known as Loper Bright Enterprises v. In announcing its decision to review the case, the court excised the question of what powers Congress gave the Commerce Department to regulate fisheries. The challenge the justices just agreed to take up involves the power of a Commerce Department unit to require herring fishing operations to pay for federal monitors on their boats. “This would have the potential of being one of the most destabilizing decisions that this court has issued, if it chooses to go there,” said James Goodwin, a senior policy analyst at the Center for Progressive Reform. Although agencies did not win all the time, studies have shown more often than not the courts used it to uphold regulations. The NRDC technically lost that case when the Supreme Court upheld a Reagan administration pollution rule as a reasonable interpretation of the law.īut over the subsequent decades, the Chevron doctrine became a central pillar of administrative law and a key part of the legal defense for any number of environmental and other rules by both Democratic and Republican administrations. The Chevron doctrine has “been in a coma for a while, so we’ll see whether they want to revive it or take it off life support,” said David Doniger, who in 1984 argued that case before the Supreme Court for the NRDC. The top target is the case that played a pivotal role in expanding the powers of federal agencies after it was handed down in 1984: Chevron v. The Supreme Court’s move is another signal that the court’s conservatives have not tired in their efforts to weaken the administrative state.
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