The Supreme Court has scheduled several high-profile cases for oral argument in January 2024, including an important challenge to the power of the so-called administrative state.
Conservative and Republican critics have long derided the administrative state as an unelected fourth branch of government that allows bureaucrats to make regulations that exceed the wishes of Congress.
The court’s ultimate ruling could alter the current balance of power among Congress, executive agencies, and the nation’s judiciary by curbing the legal underpinnings of the modern administrative state, which critics deride as an illegitimate fourth branch of government.
The authority of federal agencies has been increasingly questioned in recent years as the conservative majority on the Supreme Court has grown.
Another case to be heard in January concerns whether a Muslim man from Oregon can continue suing the FBI after the agency removed his name from the “no-fly list” but wouldn’t promise to keep it off.
Yet another involves a Texas farmer who is suing his state’s transportation department for damaging his family’s farm.
Ten cases in all were scheduled (pdf) on Nov. 17 for hearing dates running from Jan. 8 to Jan. 17.
For the court to hear a case, at least four of the nine justices must vote to grant the petition for certiorari, or review.
The two most-watched cases, Relentless Inc. v. Department of Commerce (court file 22-1219) and Loper Bright Enterprises Inc. v. Raimondo (court file 22-451), will be heard back-to-back on Jan. 17.
The two cases go back to 2020 when the U.S. Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) and its National Marine Fisheries Service (NOAA Fisheries) implemented a final rule to compel fishing companies like those involved in this case to pay for human monitors aboard their vessels.
One of the companies’ lawyers said this is akin to making motorists pay for ride-along state troopers to monitor their speed.
They argue that the federal Magnuson-Stevens Fishery Conservation and Management Act, which regulates fisheries, does not support such a rule, and Congress never authorized the government to launch such a program.
In Relentless and Loper Bright, the court may narrow the application of the so-called Chevron deference doctrine that the Supreme Court articulated in the 1984 landmark ruling, Chevron v. Natural Resources Defense Council (NRDC).
In Chevron, the court held that while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
In other words, Chevron stands for the proposition that when the meaning of a statute is unclear, an executive agency’s interpretation of a statute it administers is entitled to deference unless Congress has said otherwise.
“I don’t want to say that Chevron is responsible for all the ills of the modern administrative state, just most of them,” attorney Paul Clement, who was a U.S. solicitor general under President George W. Bush, told a Heritage Foundation audience in September.
The Chevron case was a challenge to the Environmental Protection Agency’s interpretation of a statute regulating air pollution. The late Anne Gorsuch, who was Justice Neil Gorsuch’s mother, was President Ronald Reagan’s EPA administrator from May 1981 to March 1983, when the case was before the lower courts.
Conservative justices Clarence Thomas, Samuel Alito, Gorsuch, Brett Kavanaugh, and John Roberts have expressed skepticism of the Chevron doctrine.
In Michigan v. EPA (2015), Justice Thomas wrote that Chevron “wrests from courts the ultimately interpretative authority to ‘say what the law is,’” and hands it over to the executive.
In a dissent from a denial of a petition in February 2020, Justice Thomas wrote that he would reconsider his 2005 opinion in National Cable and Telecommunications Association v. Brand X Internet Services, which deals with the application of Chevron deference. Brand X held that courts had to defer to agency interpretations of statutes even when courts disagreed with those interpretations.
The justice wrote that deference doctrines conflicted with the Constitution.
The Brand X ruling “has taken this Court to the precipice of administrative absolutism[,]” allowing agencies “to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations.”
The distaste of Justice Thomas for Chevron prompted 50 House Democrats to sign a letter in September demanding that he recuse himself from the Loper Bright case. Senate Judiciary Committee chairman Dick Durbin (D-Ill.) also called on the justice to do the same, saying that overruling the doctrine “would handcuff regulators and serve the interests of corporate fat cats.”
Justice Alito said in 2017 remarks at a Claremont Institute event that Chevron caused “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”
Justice Gorsuch wrote in Buffington v. McDonough, a 2022 denial of certiorari, that “the aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it,” but “the whole project deserves a tombstone no one can miss.”
Although he didn’t invoke Chevron by name, when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Justice Kavanaugh wrote in a dissent in United States Telecom Association v. FCC (2017) that the courts must “preserve the separation of powers” and check “expansive and aggressive assertions of executive authority.”
In Kisor v. Wilkie (2019), Justice Kavanaugh wrote that Chevron’s reach has been expanded by courts that have misinterpreted it.
The doctrine’s requirement that courts “must exhaust all the ‘traditional tools’ of construction before concluding that an agency rule is ambiguous” means that Chevron should have an impact. The court “will almost always reach a conclusion about the best interpretation.”
In King v. Burwell (2015), Chief Justice Roberts wrote that Chevron’s reach should be limited to any “question of deep economic and political significance.”
Attorney Curt Levey, president of the Committee for Justice, a conservative legal advocacy nonprofit, told The Epoch Times in a recent interview that the Supreme Court accepted the Loper Bright and Relentless cases for a reason.
The court will probably overturn Chevron’s deference, he said.
In the two cases, the court specifically granted certiorari on the question of whether Chevron should be overruled, Mr. Levey said.
He noted that the question the court agreed to decide states: “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.”
The court isn’t “necessarily even going to rule on whether the fishermen have to pay for observers on their boats,” and may not even address whether the regulation is constitutional, he said.
“It’s going to do something significant,” he said.
It takes at least four justices to vote for certiorari and “there’s certainly at least four justices who want to do something significant here … whether significant means completely overruling Chevron or just making a major modification to it,” Mr. Levey said.
On Jan. 8, the court will hear FBI v. Fikre (22-1178).
The case dates back to 2010, when FBI agents met with Yonas Fikre, a naturalized U.S. citizen of Eritrean descent who converted to Islam.
The FBI agents questioned him about alleged terrorist involvement in the Masjid As-Saber Mosque in Portland, Oregon, where he had attended prayer services. The agents told him he wouldn’t be allowed to return to the United States unless he became an informant for them.
During a legal proceeding, the FBI took his name off the no-fly list. The agency then asked the court to dismiss the lawsuit, arguing that removing his name had rendered the case moot.
A federal district court sided with the FBI and dismissed Mr. Fikre’s legal complaint.
The U.S. Court of Appeals for the 9th Circuit disagreed, holding that the government removing Mr. Fikre’s name from the no-fly list and providing a sworn declaration that his name wouldn’t be returned to the list “based on the currently available information” wasn’t enough to make his lawsuit moot.
On Jan. 16, the court will hear Devillier v. Texas (court file 22-913).
Richie Devillier sued the Texas Department of Transportation in 2020 after a concrete barrier was installed on a highway that caused serious flooding on his property, which did not have a history of flooding.
In the early 2000s, the Texas Department of Transportation renovated nearby Interstate 10, increased its height, added two lanes, and installed a concrete barrier in the median, according to the Institute for Justice, a public interest law firm that is representing him.
Now, whenever there is heavy rainfall, Mr. Devillier’s land becomes a lake.
A group of landowners filed inverse-condemnation lawsuits arguing that the flooding of the land amounted to a taking under the Texas constitution and the Fifth Amendment to the U.S. Constitution. Texas had the cases transferred to federal court.
The cases were then consolidated into a single proceeding comprising nearly 80 distinct property-owner plaintiffs.
A federal district court sided with Mr. Devillier but the U.S. Court of Appeals for the 5th Circuit reversed.
This is a developing story. This article will be updated.
From The Epoch Times
