Less than two weeks ago, the United States Supreme Court took the first of several actions meant to close the door on what has become a standard in opposing citizens’ efforts to challenge the missteps of administrative agencies, i.e. Judicial Deference to agency decision-making. Specifically, Judicial Deference has guided the Courts into accepting an agency determination “based on a reasonable interpretation of an ambiguous statute Congress has tasked the Agency with implementing.” Chevron vs. NRDC, 467 U.S. 837 (1984).
On May 1, 2023, the Court agreed to accept certiorari in the case of Loper Bright vs. Raimundo in which herring fisheries challenged a regulation issued by the Marine Fisheries unit of the Commerce Department, requiring private payment by boat owners of monitors mandated by the agency to be located on individual fishing boats to prevent over-fishing In accepting the case for review, the Court, for the first time, agreed to confront the concept of Judicial Deference head-on.
Up until recently, courts have moved incrementally to weaken the concept of Judicial Deference. As long ago as 1944, the Court held that “The courts may resort to agency expertise for guidance. The weight of its judgment in a particular case will depend on the thoroughness . . . in its consideration, validity of its reasoning, consistency with other pronouncements, and all factors with power to persuade.” Skidmore vs. Swift, 323 U.S. 144 (1944). And as short a time ago as last year, in Virginia vs. EPA, 597 U.S. _ (2022), the Court specifically sanctioned the application of the “Major Questions Doctrine” which narrows the concept of deference to those agency actions that “are guided by clear statutory authority.”
The decision to accept certiorari in Loper Bright appears to demonstrate the Court’s desire to directly confront Judicial Deference, and accept the views of newer members of the Supreme Court bench such as Neil Gorsuch. Justice Gorsuch took the position, in his dissent in the case of Buffington vs. McDonough, 598 U.S. _ (2022), that Judicial Deference threatens the separation of powers enshrined in the Constitution by placing the decision-making power regarding consistency with Federal law in the hands of the Executive Branch, and not in the Judicial Branch where it belongs.
The real world implications of this shift in emphasis includes a complete re-thinking of the way Congressional rule-making and agency implementation interact. Specifically, under the current regime, Congress drafts legislation that contains general guidance, and devolves upon agencies the task of drafting the technical mechanisms for implementation. Under a regime less restricted by Judicial Deference, Congress would have to be more specific in its legislative mandates, presumably with the aid of the agencies it displaces.
Whatever the ultimate outcome, for legal challenges to federal agency actions, the demise of Judicial Deference would be a welcome relief. Challengers to the actions of the Federal Aviation Administration (“FAA”), for example, have found the last bastion of relief in the federal court system largely foreclosed by the Courts’ persistent deference to the FAA’s “technical expertise.” That refusal to consider the agencies’ actions from a legal, rather than solely technical, perspective, may eventually disappear as a result of the Court’s decision in Loper Bright, and leave open the door to a fair weighting of community benefits and burdens against those of the agencies. The Court is supposed to hear the case in the Fall of 2023, so stay tuned for its decision in 2024.