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Josh Gerstein

Supreme Court sets showdown over agency power for January

The Supreme Court signaled that both of the cases on its docket challenging the doctrine known as Chevron deference will be argued in January. | Mariam Zuhaib/AP

The Supreme Court indicated Friday that it plans to grapple in January with a critical question about the power of federal government agencies to interpret their own legal authority.

The justices had already agreed to hear one case this term challenging a legal doctrine, known as Chevron deference, that gives federal agencies substantial latitude to decide what power Congress gave them. On Friday, the high court added a second case on that issue to its docket and signaled that both will be argued in January.

The court provided no explanation for adding the case, Relentless, Inc. v. Department of Commerce, to be argued alongside the previously accepted one, Loper Bright Enterprises v. Raimondo. However, the move appeared to be intended to allow the court’s newest member, Justice Ketanji Brown Jackson, to weigh in on the issue.

While Jackson was serving on the D.C. Circuit Court of Appeals last year, she heard arguments in the Loper case, but days later she was confirmed to the Supreme Court and never ruled on the dispute. Still, she recused herself from the case when it reached the Supreme Court.

Both cases involve challenges to the power of federal fisheries regulators to require fishing boat operators to pay for monitors to conduct on-board checks for compliance with federally imposed limits. The Department of Commerce interpreted federal law to give its regulators the power to enact such a requirement, and the agency says that, under Chevron, courts should not second-guess that interpretation. Fishing companies argue that the agency has overstepped its authority.

In recent decades, eliminating Chevron deference has become a cause célèbre for conservative legal activists, who view the doctrine as aggrandizing federal bureaucrats over the judges who typically decide the meaning of federal statutes. Backers of the doctrine say agencies have the special expertise necessary to understand the application of highly technical laws in heavily regulated industries.

The outcome of the cases has the potential to substantially curtail the power of federal agencies in a wide range of areas like the environment, prescription drugs, food safety, auto safety, banking and the financial markets. The near gridlock in Congress also means efforts to shore up agencies’ legal authority are unlikely to be successful.

The high court has considered several cases over the past few years that provided opportunities to overturn the precedent set back in 1984 in Chevron v. Natural Resources Defense Council but has always wound up resolving those disputes without definitively overruling their earlier decision.

The court did not set an exact date Friday for the pair of cases to be argued, but indicated they will be heard during the first so-called sitting, which will occur on a smattering of dates between Jan. 8 and 17.

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