• The Supreme Court Wednesday appeared ready to side with small fishing companies in their bid to overturn decades-old precedent establishing Chevron deference, which instructs courts to give deference to agency interpretation of laws when the language is ambiguous, legal experts said.
• During oral arguments, Justice Neil Gorsuch pointed out Chevron deference arguably gives the government a powerful advantage over the individual litigant, disadvantaging people like “the immigrant, the veteran seeking his benefits, the social security disability applicant, who have no power to influence agencies.”
• “The arguments definitely showed that we have a constitutionalist court here,” JCN President Carrie Severino told the Daily Caller News Foundation after oral arguments. 

The Supreme Court seemed poised Wednesday to side with small fishing companies challenging decades-old precedent that instructs courts to give deference to agency interpretation of laws when the language is ambiguous, legal experts said.

The court’s conservatives — namely Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — repeatedly took issue with the government’s inability to define just when the “ambiguity” that requires deference to an agency’s reading of a law kicks in. But the court’s liberal justices expressed concern that, without Chevron deference, judges would step into the role of policy-making.

“The arguments definitely showed that we have a constitutionalist court here,” JCN President Carrie Severino told the Daily Caller News Foundation after oral arguments. “In my mind, the pretty clear majority sees the fundamental problems with the Chevron doctrine—with the fact that it violates the separation of powers, the Administrative Procedure Act. You could hear a lot of skepticism about the impact that’s had both on the courts and the way that the branches interact together, how it creates horrible incentives for Congress to fail to legislate and for the Executive Branch to try to take over that role.”

The two cases before the justices Wednesday, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, ask them to overturn the 1984 decision that established Chevron deference, leading to agency readings of statutes frequently prevailing in court. In both cases, small fishing companies brought lawsuits against the National Oceanic and Atmospheric Administration (NOAA) to challenge a rule requiring them to shell out up to $700 a day to pay the salaries of federally mandated on-board observers, which lower courts upheld on the basis of Chevron.

Solicitor General Elizabeth Prelogar told the justices that ambiguity in statutes arises when the court has “exhausted the tools of interpretation and has not found a single right answer.” Alito noted courts “never do that in cases that don’t involve an agency.”

Gorsuch pointed out a pattern of difficulty applying Chevron in the lower courts, noting a “dozen or more” circuit judges have written asking the Supreme Court to overturn the ruling.

In practice, Gorsuch said Chevron arguably gives the government a powerful advantage over the individual litigant, disadvantaging people like “the immigrant, the veteran seeking his benefits, the social security disability applicant, who have no power to influence agencies.”

“I didn’t see a case cited, perhaps I missed one, where Chevron wound up benefiting those kinds of peoples,” he said.

“My concern is if we take away something like Chevron, the court will then suddenly become a policy maker by majority rule,” Justice Ketanji Brown Jackson said, contesting the point that the question of who pays for monitors on the boat is a legal question. “I see that as a policy question.”

Justice Elena Kagan raised a hypothetical about Congress passing a law on Artificial Intelligence, questioning who it would prefer to fill in gaps in the law — the agency or the courts?

“The issue we’re deciding here is more like the countless policy issues that are going to confront this country in the years and decades ahead: will courts be able to decide these issues as to things they know nothing about … that just don’t have any expertise … or are people in the agencies going to do that?”

Prelogar argued Chevron is a “bedrock principle,” and that overturning it would be a “shock to the legal system” and the “thousands” of judicial decisions made on its basis.

Justice Amy Coney Barret also pressed the question of precedent, questioning whether decisions previously made on the basis of Chevron could be challenged if it is overruled.

The attorneys arguing for the companies, and multiple justices, pushed back on the point that Chevron introduces stability into the law, noting how regulations frequently change between administrations.

“Each new administration can come in and undo the work of a prior one — they’re all reasonable, I mean, my goodness, the American people elect them, of course, they’re reasonable,” Gorsuch said.

Kavanaugh noted the judiciary’s historical role has been to “police the line between the legislature and the executive … to make sure the executive is not operating as a king.”

“Today’s oral arguments in the Relentless and Loper Bright cases went to the very heart of a judge’s role: What does it mean to exercise judicial power?” Thomas Berry, Research Fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies, said in a statement. “It appears likely that a majority of the Court is now poised to overturn the Chevron doctrine entirely and to make clear that judges must simply apply their own best readings of statutes. As counsel for both Loper Bright and Relentless pointed out, that task can include giving proper respect to longstanding and contemporaneous interpretations of the Executive Branch.”

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