Tomorrow the Supreme Court hears oral arguments in two cases—Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo—that each present the question whether the Court should abandon or clarify the so-called Chevron doctrine. Under that doctrine, which the Court adopted in 1984 in Chevron v. Natural Resources Defense Council, federal courts will generally defer to a federal agency’s reasonable interpretation of an ambiguous provision of a statute that the agency administers.
These two cases both arise in the context of the National Marine Fisheries Service’s regulation of Atlantic herring fishery. So prepare yourself for “that’s a red herring” and other fishy language.
Why two cases with two separate arguments? The evident answer is that Justice Jackson is recused from the Loper Bright case. (She was on the D.C. Circuit panel that heard oral argument in the case; she withdrew from that panel after President Biden nominated her to the Supreme Court.) One happy byproduct of that recusal is that the Court’s main ruling is likely to be known as Relentless, a much more memorable name than Loper Bright.
As someone who has been much less hostile to Chevron than many other conservatives, I am struck on reading the main parties’ briefs by how overwhelming petitioners’ case against Chevron is. Read through Loper Bright’s opening brief, the response from the United States, and Loper Bright’s reply, and I think that you’ll agree.
I certainly don’t mean to imply that the Office of the Solicitor General has underperformed. On the contrary, I attribute the disparity to the relative merits of the legal positions that the parties are advancing.
There are dozens of amicus briefs in these cases, and I have made no effort to review them. For anyone who wants to take a deep dive into the legal issues, I’d recommend Virginia law professor Aditya Bamzai’s amicus brief. Petitioners repeatedly cite Bamzai’s Yale Law Journal article “The Origins of Judicial Deference to Executive Interpretation,” and it would be no surprise if the Court majority does likewise.
I’ll go on a limb and predict that Justice Kavanaugh will write a majority opinion that overrules—or perhaps reconceptualizes—Chevron and rules, consistent with Bamzai’s views, that the Administrative Procedures Act calls for federal courts to review de novo questions of law and/but that one of the canons of construction that courts must employ requires them to “give weight to agency interpretations that were contemporaneous or customary.” (Quoting Bamzai’s amicus brief (emphasis added).) In other words, the only agency interpretations that would continue to receive some deference would be those that “were contemporaneous with the statute’s enactment or articulated a customary practice that developed under the statute.”