OPINION: This article may contain commentary which reflects the author's opinion.
The U.S. Supreme Court has decided to hear two cases that could have a significant impact on the power and authority of the Executive Branch. This could lead to a significant reduction in their ability to issue rules that are binding, like legislation. Thomas M. Boyd, a constitutional expert, believes that this could bring about a change in how administrations govern.
The court’s rulings could end a constitutional revolution that has lasted for four decades since Reagan’s administration. The decisions made in these cases could considerably alter the way federal agencies interpret the laws passed by Congress. According to Boyd, Justice John Paul Stephens’ opinion in the Chevron U.S.A. v. National Resources Defense Council case in 1984 was the beginning of what legal scholar Gary Lawson would later describe as “nothing less than a bloodless constitutional revolution.”
Following Stephens’ decision, subsequent presidential administrations used it to enact policies that effectively functioned as laws, often deviating from the exact wording of the legislation passed by Congress. Boyd noted that Article I of the Constitution states explicitly that “All legislative power herein granted shall be vested in a Congress of the United States” — not federal regulatory agencies. However, Stephens argued that the Executive Branch had the power to determine specific interpretations of laws enacted by the Legislative Branch.
Boyd notes that “Forty years of regulatory and judicial tumult have ensued, finally crescendoing to a point that has compelled the Supreme Court to intervene. Loper Bright Enterprises v. Raimondo, from the District of Columbia Circuit, and Relentless v. Department of Commerce, from the First Circuit, are now before the court. Both are companies that fish for herring in New England and are family-owned and operated, and both are subject to the Magnuson-Stevens Act, which governs fishery management in federal waters. The act allowed the National Marine Fisheries Service to require herring boats, relatively small vessels that normally carry only five to six people, to also carry federal monitors to enforce its regulations.”
However, it gets even worse.
The former Reagan assistant attorney general mentioned that the agency, without explicit statutory authorization, proceeded to require Loper Bright and Relentless to bear the expenses for the salaries of these monitors. The NMFS estimated these costs at $710 per day, at times exceeding the income generated from a day’s fishing.
Both federal circuit courts ruled that statutory silence on the matter was an “ambiguity” that required the application of the Chevron deference.
But in accepting the cases, the justices posed a two-part question to be answered and settled: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”
Boyd noted that some of the current justices, the constitutional originalists, have already indicated how they are likely to rule.
Several have indicated suspicion in allowing federal agencies—and, by definition, the Executive Branch in general—to have too much leeway in the interpretation of laws, giving them nearly limitless power in governing, Boyd noted.
