Will the Supreme Court Show a Little Humility?

The Supreme Court heard arguments on Wednesday in two cases inviting the justices to drastically restrict the authority of federal agencies, upend decades of precedent and take more power for themselves.

At least four members of the court seem prepared to do so. The question is whether Chief Justice John Roberts or Justice Amy Coney Barrett will go along with them to provide a majority.

Out of respect for precedent and judicial humility, they should not.

On the surface the cases concern fishing regulation, but the real question before the court is this: Who fills in the gaps and resolves ambiguities Congress leaves when it writes statutes for federal agencies to put into effect and enforce? For 40 years, the answer has been the agencies, as long as they interpret the law “reasonably.”

That principle comes from a 1984 case, Chevron v. Natural Resources Defense Council, one of the most widely cited cases in the law, which the Supreme Court is now being urged to jettison. Conservatives have been stalking this precedent for years, believing, in the words of Justice Neil Gorsuch in 2016, that it gives “prodigious new powers to an already titanic administrative state.”

Overturning the well-established Chevron framework would invite litigation over virtually every decision, big and small, that agencies must make in their day-to-day work, decisions that are in part legal but also call for expert policy judgments. Questions such as how to define a stationary source of air pollution, what constitutes critical habitat for endangered species, which drugs are safe and effective for human use and what amounts to unfair or deceptive marketing.

The cases before the court are a good example. Plaintiffs are challenging a federal rule requiring private fishing boats to pay for onboard observers who monitor their compliance with conservation rules. Congress clearly authorized the onboard monitors in the Magnuson-Stevens Act but did not say who should pay for them. The National Marine Fisheries Service, which oversees the law, determined that a reasonable reading would require the government to pay for the training and administrative costs of the observers and private boat owners to pay their daily fees. In both cases, the lower courts ruled for the agency, with one of them citing Chevron.