Supreme Court to Hear Another Broad Challenge to Agency Power

The Supreme Court said on Friday that it would hear a second challenge to a foundational precedent on the power of executive agencies.

The new case is almost identical to one the court agreed to hear in May, Loper Bright Enterprises v. Raimondo, No. 22-451. The court’s usual practice when asked to hear a follow-on case concerning the same issues is to hold the new case until the earlier one is resolved and then return it to the lower courts for reconsideration in light of the ruling in the first one.

The court’s unusual decision to grant review in the new case was almost surely because Justice Ketanji Brown Jackson had recused herself from the earlier case, having served on the panel that heard it when she was a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

The new case comes from the First Circuit, in Boston, and so does not require Justice Jackson’s recusal.

If the Supreme Court is to overturn a major precedent, the justices apparently calculated, it would be better for the decision to come from the full court.

In its order granting review, the court said the two cases would be argued “in tandem” in January.

When the court agreed to hear the earlier case in the spring, it rejected a modest question proposed by the plaintiffs and said it would consider only one that asked it to overrule or limit the precedent, Chevron v. Natural Resources Defense Council. The court did the same thing on Friday.

The Chevron case, from 1984, is a cornerstone of administrative law, requiring courts to defer to agencies’ reasonable interpretations of ambiguous statutes.

The decision shifted power from Congress and the courts to agencies, and it is unpopular among businesses subject to many kinds of regulations, including of the environment, the workplace and the marketplace.

Both of the cases the court will hear arose from a federal law that allows the National Marine Fisheries Service to require fishing vessels to carry federal monitors to prevent overfishing. The service interpreted the law to let it order the fishing industry to pay the monitors’ salaries, a position the two appeals courts found permissible.

In the past two terms, the court has overturned precedents on abortion and affirmative action. “Overruling Chevron,” the Biden administration told the justices in a recent brief, “would be a convulsive shock to the legal system.”

The new case, Relentless Inc. v. Department of Commerce, No. 22-1219, concerns two fishing vessels operating out of North Kingstown, R.I., the Relentless and the Persistence. A lawyer for their owners said his clients were pleased by the Supreme Court’s decision to hear their case.

“Our clients have persevered in this suit relentlessly, you might say, and we are eager to reverse the error of the lower courts and remove the unfair and unnecessary thumb on the scale for bureaucracy against citizens that Chevron deference inflicts on them when they face their government in court,” John Vecchione of the New Civil Liberties Alliance said in a statement.