The Supremes may be ready to strike down the "Chevron doctrine", the 40-year-old ruling that set in motion the new administrative state

odds of success, maybe 5 on a scale of 1-10

Congress has passed all sorts of wonderful-sound, feel-good laws over the decades, with vague or, more often, no guidelines about how the government will achieve the law’s lofty aspirations, lest enforcement of a particular rule offend a particular constituency. So our elected representatives pass the burden on to newly-created or existing agencies in the Executive Branch, and let the permanent, administrative bureaucrats take the heat.

Not surprising at all, this has led to the exponential growth of federal agencies who are unresponsive and unaccountable to the formerly-free citizens our government was established to serve. That cozy arrangement may —may — be about to end, and Congress may finally be forced to take responsibility for the laws it enacts.

Supreme Court poised to end ‘constitutional revolution’ that’s marred US governance for 40 years

When Justice John Paul Stevens issued his 1984 opinion in Chevron U.S.A. v. National Resources Defense Council, he started what legal scholar Gary Lawson later called “nothing less than a bloodless constitutional revolution.”

At long last, on Wednesday, the Supreme Court will hear two cases that may signal the beginning of the end to that revolution.

Article I of the Constitution explicitly directs that “All legislative Power herein granted shall be vested in a Congress of the United States,” not regulatory agencies.

Yet Justice Stephens’ opinion found that “agenc[ies] may . . . properly rely upon the incumbent administration’s views of wise policy” in “reasonably” defining statutory ambiguities.

The legal doctrine that Chevron spawned became known as Chevron deference and former President Ronald Reagan’s White House counsel, Peter Wallison, pointed to it as “the single most important reason the administrative state has continued to grow out of control.”

Forty years of regulatory and judicial tumult has 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 of its regulations.

As a next step, however, and without any express statutory authorization, the NMFS decided to require Loper Bright and Relentless to also pay the salaries of these monitors, estimated by the NMFS to be $710 per day, an amount that can exceed the profits from a day’s fishing.

Both circuits validated this rule by pronouncing statutory silence to be an “ambiguity” that required Chevron deference.

When it accepted certiorari in both cases, the court posed a two-part question for the litigants to address: “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.”

Issues & Insights has more on this case:

Is This The Beginning Of The End Of The $2 Trillion Administrative State?

The second, seemingly unrelated news happens this week when the Supreme Court hears arguments in a case involving commercial fishing vessels. This case gives justices the opportunity to turn the regulatory Leviathan inside out.

It case involves a mandate by another regulatory agency, the Commerce Department, which not only told commercial fishing vessel owners that they had to take federal fish inspectors on board but also had to pay the inspectors’ costs.

The Supreme Court could use this case to rescind what’s known as the “Chevron deference.” In a 1984 ruling, the Court basically said that courts will uphold whatever regulators decide a law means where the law doesn’t specifically spell out what regulators can or can’t do.

“The precedent has given agencies broad powers to implement regulations in policy areas across the board, including the environment, public health, and consumer protection,” The Hill notes.

“Broad powers.” “Across the board.” That’s music to the left’s ears, which is why it is apoplectic about losing its regulatory free hand.

U.S. Solicitor General Elizabeth B. Prelogar called overturning Chevron a “convulsive shock to the legal system.” Another critic said it would result in “chaos.” A lawyer who once worked at the Justice Department and the Environmental Protection Agency even argued that it “represents a true danger to our democracy.”

In truth, reining in the unchecked powers federal regulators now wield would begin to restore a government of limited powers that the Founders envisioned and that the Constitution enshrines.

Naturally, NPR and its ilk smell something fishy going on and are horrified at the prospect of the Left’s agencies losing control, which says all you need to know about how much is at stake here.

Case brought to Supreme Court by herring fishermen may gut federal rulemaking power

Judges are supposed to follow a two-step procedure. First, they're supposed to ask whether the law is clear when someone challenges a federal rule. Then, if the law is not clear, if there's an ambiguity, the court is supposed to defer to the agency interpretation if it's reasonable.

In practice, that's meant that courts often defer to people inside federal agencies who are experts on things like pollution, banking and food safety.

… The current solicitor general, Elizabeth Prelogar, said in court papers that … [o]verruling that 1984 case would represent a "convulsive shock to the legal system," she added.

But Justice Brett Kavanaugh seized on that point in oral argument Wednesday. "You say, 'Don't overrule Chevron, it would be a shock to the system,' but the reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in."

Justice Kavanaugh actually understates the problem because regulations, once issued, aren’t eliminated when a new administration comes in: you can’t force manufacturers to completely retool their production lines: dishwashers; washing machines; refrigerators, or abandon a product entirely: gas stoves; gas furnaces; ICE vehicles, and switch to a new one that meets new standards, and then expect them to return to the old standard when a different administration comes in. Trump used his executive power to reverse a slew of Obama’s regulations, and four years later, Biden undid Trump’s orders, reinstated Obama’s and added new, even more restrictive ones. All of us, including manufacturers, are entitled to rely on laws that are at least semi-permnent to organize our lives and our livelihoods; the present system exposes us to the ever changing whim of bureaucrats and newly-minted grad school zealots . That’s no way to run a railroad, let alone a country.