From Ed Whelan at Bench Memos:
[On Wednesday, 1/17] 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.
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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.
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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 add that in addition to Professor Bamzai's article, my colleague Mike Rappaport has an originalist perspective on Chevron here: Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act.
I don't have an opinion on the administrative law aspects of the matter (not my expertise). But I think from a separation of powers perspective the broad version of Chevron deference is suspicious. Courts are supposed to say what the law is. There might be reasons — or even obligations — for them to defer to executive branch determinations of facts or policy. But final resolution of legal questions is part of the judicial power and shouldn't be lightly handed off to the executive branch.
UPDATE: At SOCTUSblog, Amy Howe (after the argument): Supreme Court likely to discard Chevron.
Posted at 6:03 AM