Opponents of the ‘Administrative State’ Turn Attention to Upcoming Supreme Court Case

‘Only the Supreme Court can correct its own errors, so the Court should acknowledge its error,’ one analyst tells the Sun.

AP/Jacquelyn Martin
The Supreme Court on June 27, 2023. AP/Jacquelyn Martin

Opponents of the modern “administrative state,” after facing an icy reception to a case looking to dismantle the Consumer Financial Protection Bureau’s regulatory authority, are turning their attention to another case with which conservatives are looking to overturn the decades-old doctrine of “Chevron deference.”

The immediate subject of the case, Loper Bright Enterprises v. Raimondo, concerns a rule requiring the fishing industry to pay for the cost of observers who monitor fisheries for compliance with fish management plans.

At the core of the case, though, is a question regarding whether administrative agencies, in this case the National Marine Fisheries Service, have the authority to originate rules that are not expressly written into legislation.

The precedent, known as “Chevron deference,” holds that when a statute is silent or ambiguous on a topic, administrative agencies of the federal government have a certain amount of leeway to pen rules as long as their interpretation of the statute is considered reasonable.

Opponents of the Chevron doctrine, like Philip Hamburger of Columbia Law School, say the doctrine is a violation of due process. “The New Civil Liberties Alliance is arguing that Chevron deference is best understood as Chevron bias,” Mr. Hamburger tells the Sun. “When the government is a litigant, the case requires judges to favor one party — the government — over the other, in violation of the due process of law.” 

Mr. Hamburger says the court “should admit that it has imposed a shameful violation of due process for nearly 40 years,” adding, “Only the Supreme Court can correct its own errors, so the court should acknowledge its error.”

Defenders of the Chevron doctrine argue that it puts the power to alter the policies of administrative agencies with elected officials, namely Congress, who then have the ability to write legislation to explicitly alter the power of agencies and the president, from whom administrative agencies derive their own power.

One such proponent of this view was Justice Antonin Scalia, who spent most of his time on the high court defending the doctrine, though there were rumors that he was reconsidering the topic shortly before his death.

“Under our democratic system, policy judgments are not for the courts but for the political branches; Congress having left the policy question open, it must be answered by the Executive,” Scalia wrote in a 1989 Duke Law Journal article. 

In the article, Scalia questions whether cases such as Loper Bright Enterprises v. Raimondo could even rightly be characterized as questions of law, given the ambiguity needed for the Chevron doctrine to be relevant.

“I tend to think, however, that in the long run Chevron will endure and be given its full scope — not so much because it represents a rule that is easier to follow and thus easier to predict … but because it more accurately reflects the reality of government, and thus more adequately serves its needs,” Scalia wrote.

Today, though, it’s clear that opponents of the Chevron doctrine have some potential friends on the high court, with both Justice Clarence Thomas and Justice Neil Gorsuch having recently expressed skepticism of the precedent.

In a 2015 dissent from a denial of review, Justice Gorsuch wrote that the court “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.”

The chance to challenge Chevron before the Nine has also caught the attention of institutional players within the conservative movement, such as the Cato Institute, the Competitive Enterprise Institute, and the Manhattan Institute. 

In a joint amicus curiae brief, the Competitive Enterprise Institute and the Manhattan Institute argued that the high court should add the question of whether an agency that is assigned rule-making authority “may also exercise the separate congressional power to impose duties, without express legislative authorization.” 

The court has not yet scheduled oral arguments for the case, though it is scheduled to be argued during this term.

The New York Sun

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