Supreme Court signals it will claw back federal agency power

The Supreme Court’s conservatives appeared inclined to cut back the regulatory power of federal agencies, with several justices during a pair of arguments Wednesday seeming ready to overrule a legal doctrine that has bolstered agencies’ authority for decades.

Over more than three hours of argument, the justices put the Biden administration’s top Supreme Court lawyer on defense as she sought to preserve Chevron deference, which instructs courts to defer to agencies’ interpretation of federal law if it could have multiple meanings.

The practice has strengthened presidential administrations’ ability to regulate wide aspects of daily life. The range of examples referenced at the arguments revealed the breadth of Chevron’s impact: artificial intelligence, cryptocurrency, environmental protections and more.

Although several conservative justices railed against the precedent during Wednesday’s arguments, it remains unclear whether a majority is willing to outright overrule Chevron, which would mark a major legal victory for business and anti-regulatory interests. The court could instead narrow the doctrine’s scope without explicitly disavowing it.

In particular, three members of the high court’s conservative wing — Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — reiterated their long-publicized concerns about the precedent’s viability.

“The government always wins,” Gorsuch said.

Critics contend that Chevron requires judges to abdicate their responsibility to interpret the law. They also note a lack of consensus on when a statute is ambiguous enough to trigger deference to an agency, and how some federal judges have openly criticized the doctrine.

“Should that be a clue that something needs to be fixed here?” Gorsuch said.

The court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, meanwhile, expressed opposition to overturning Chevron. They emphasized a desire to defer to subject-matter experts at agencies when ambiguous, complicated policy issues arise, rather than having a judge attempt to draw the line.

“My concern is that if we take away something like Chevron, the court will then suddenly become a policymaker,” Jackson said.

Kagan gave a hypothetical about whether a judge or the Department of Health and Human Services (HHS) should be the one to decide whether a cholesterol reducer should be considered a “drug” or a “dietary supplement.”

“In that case I would rather have people at HHS telling me whether this new product was a dietary supplement or a drug,” she said.

Kagan added at one point, “Judges should know what they don’t know.”

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