As the Supreme Court’s October 2023 Term draws close to its end, the justices delivered a significant ruling on the regulatory authority of the executive branch.  On June 28, 2024, the Court  issued a 6-3 decision in Loper Bright Enterprises, et al, v. Raimondo, Secretary of Commerce, et al (Loper Bright). 

The case determined whether the National Marine Fisheries Service (NMFS) misinterpreted its authority under the Magnuson-Stevens Act, which governs fisheries management, to require commercial fishing boats to pay or partially subsidize the salaries of federal monitors or observers on board their fishing vessels for the purpose of collecting data and preventing overfishing.  The NMFS had provided those services at its own expense, but when its budget became insufficient to cover the costs, the agency issued a rule that required the boat owners to pay some or all of the costs.  There was no provision in the Magnuson-Stevens Act that gave the NMFS such authority, and boat owners challenged the new requirement from the agency. 

The court not only ruled in favor of the plaintiffs but also overruled  Chevron, U.S.A. Inc., Petitioner, v. National Resources Defense Council, Inc.,  et al., American Iron and Steel Institute, et al., William D. Ruckelshaus, Administrator, Environmental Protection Agency, Petitioner, v. National Resources Defense Council, which was decided in 1984 and is known more commonly as Chevron v. EPA or Chevron. 

Chevron gave agencies broad authority to interpret statutes in their rulemaking process.  When challenges were brought against those decisions, the executive branch would claim what became known as the Chevron defense or deference.  As House Majority Leader Steve Scalise (R-La.), Speaker Mike Johnson (R-La.), and Whip Tom Emmer (R-Minn.) said in their statement after the ruling, “Chevron deference has led to a massive expansion of the federal government and a reduction of Congress’s role in the policymaking process.”  The case created an imbalance in the separation of powers and led to “many of the burdensome regulations that stifle progress and curtail liberty.”  The leadership team noted that the “landmark decision by the Court restores the balance outlined by the Founders in our Constitution and represents the beginning of the end of the administrative state.  House Republican committees will be conducting oversight to ensure agencies follow the Court’s ruling and no longer engage in excessive interpretative license in administering statutes under their jurisdiction.”

The House Commerce on Energy and Commerce, whose jurisdiction includes healthcare and technology, has oversight of several of the most active rulemaking agencies, including the Environmental Protection Agency, the Federal Communications Commission (FCC) and the Federal Trade Commission.  Committee Chair Cathy McMorris Rodgers (R-Wash.) said, “Moving forward, major decision-making authority will no longer automatically be deferred to unelected, unaccountable bureaucrats. Power has been placed back in the hands of the American people and their elected representatives, as the Constitution prescribes.”

The Loper Bright decision will impact not only future rulemaking but also upcoming court cases, including the case filed in the U.S. Court of Appeals for the Sixth Circuit regarding the FCC’s Safeguarding and Securing the Open Internet rule, which was published in the Federal Register on May 22, 2024.  Other agencies will also need to take a hard look at their regulations to ensure they will hold up to judicial scrutiny under the new bar set under Loper Bright.

Despite the hue and cry from supporters of the regulatory state, the Chevron decision only had an impact on rulemaking for the past 40 years.  Before then, agencies did not have the wide-ranging and somewhat unchecked authority to decide how to interpret legislation enacted by Congress and yet the Republic survived.  The Loper Bright decision brings authority over federal law back to where it was prior to 1984 and where many believe it always belonged, to the elected members of Congress who are directly accountable to the American people.