Skip to content
Search

Latest Stories

Top Stories

Supreme Court could shift significant regulatory power to judiciary

​Protesters gather outside of the Supreme Court to advocate for the Chevron doctrine

Protesters gather outside of the Supreme Court to advocate for the Chevron doctrine.

Nicole Norman/Medill School of Journalism

Norman is a graduate student at Northwestern University's Medill School of Journalism.

Activists gathered outside the Supreme Court on a frigid January morning to advocate for one the most consequential legal doctrines that you’ve probably never heard of.

Participants, representing groups supporting everything from environmental policy to the rights of the disabled, braved the wind and snow-lined sidewalks of Capitol Hill to urge the justices to uphold the 40-year-old practice of courts deferring to federal agencies when they create regulations that reasonably interpret federal law.

The so-called Chevron doctrine has been used scores of times to justify agencies' decisions to fight pollution, protect workers’ rights and provide Americans with affordable access to health care. It has also been used to bolster conservative causes, most recently during Donald Trump’s presidency to roll back Obama-era environmental rules the Republican administration felt were overly restrictive.


Later that morning, the Supreme Court heard arguments in two cases that challenge the Chevron doctrine and the authority federal agencies have gained through it. The court, which is dominated by Republican-backed justices, can shift the balance of power from the president to the judicial branch.

The cases – Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce – both focus on Atlantic herring fisheries, which are regulated by the National Marine Fisheries Service. Under the Magnuson-Stevens Act, the agency required herring fishermen to pay for a mandatory at-sea monitoring program. Loper Bright and Relentless both sued, arguing that the fisheries service stretched the law beyond its original intention.

Sign up for The Fulcrum newsletter

The demonstrators outside the Supreme Court said agencies’ interpretations of countless laws that protect people and nature are at risk in the case. Several protesters waved signs that read, “Stop the relentless power grab.” Across the way, a smaller group advocating for the court to strike down the doctrine stood silently. A few held signs saying, “It's time to stand up for the little guy.”

Erin Jackson-Hill, executive director for Stand Up Alaska, a nonprofit dedicated to increasing civic engagement, addressed the crowd.

“It is imperative that we remain vigilant and steadfast in our defense of this doctrine, as it plays a pivotal role in maintaining the balance of power and preserving the integrity of our legal system,” she said.

One demonstrator commented that she had never heard of the legal doctrine before the case went to the Supreme Court but now understands how important it has been.

The Chevron doctrine comes from the 1984 case Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. The Supreme Court ruled that courts would defer to federal agencies when statutes are ambiguous. Such rule-making, the court said, is only appropriate when the agency’s interpretation is reasonable and Congress had not spoken directly on the issue.

In practice, Chevron allowed the Environmental Protection Agency to use the Clean Air Act, which had not seen any major changes since 1990, to propose stronger passenger vehicle emissions standards, including as recently as last year.

Chevron also allowed the Department of Housing and Urban Development leeway to implement the Fair Housing Act, which protects people from discrimination when renting or buying a home, or seeking a mortgage. Under Chevron, the department was able to set rules for how landlords and banks avoid discrimination.

If the justices overrule Chevron, they would give the courts much more power to challenge and direct the way that agencies implement policy, according to Devon Ombres, a senior director for the Center for American Progress, a liberal think tank.

In total, according to some experts, federal appellate courts have cited Chevron more than 5,000 times. Ombres predicts that if it gets overturned, industries would overwhelm federal courts with challenges to regulations.

The Supreme Court’s three liberal members underscored the importance of Chevron, saying it allows agencies to govern when the law “runs out,” as Justice Elena Kagan put it.

Kagan explained that members of Congress create laws knowing that there will be gaps in their knowledge as well as future advances. She used the example of Congress attempting to make laws regulating AI.

“Congress knows that this court and the lower courts are not competent with respect to deciding all the questions about AI that are going to come up in the future. And what Congress wants, we presume, is for people that actually know about AI to decide those questions,” she said.

She also peppered the attorney for Relentless, Roman Martinez, with hypothetical questions that could face courts if Chevron were to be overturned.

“Is a new product designed to promote healthy cholesterol levels a dietary supplement or a drug?” Kagan asked the attorney.

Martinez said it would depend on the “original understanding of the text of that statue read in context” and he would not directly answer the question.

The six conservative justices seemed to agree that, under Chevron, courts have been too deferential to federal agencies. (The Supreme Court has noticeably ignored citing the doctrine in cases where it would be relevant during recent oral arguments.) They discussed the consequences of rejecting or narrowing Chevron.

Justice Brett Kavanaugh criticized Chevron by pointing out that judges have no control over agencies ability to “flip-flop” their interpretations of laws passed by Congress.

“Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in,” he said.

Chief Justice John Roberts and Justice Neil Gorsuch suggested that a better model would be the ruling in Skidmore v. Swift & Co., which allowed a federal court to determine the appropriate level of deference. But Kavanaugh was skeptical of the deference courts could give federal agencies under Skidmore.

It was unclear how the court would move forward, but it seems unlikely to both defenders and opponents of Chevron that the doctrine will continue to have the same sway over U.S. policy that it has had for 40 years. The likely outcome will shift power away from the executive branch and give more to Congress and the courts.

“The least likely thing to happen is for the court to just leave Chevron as it is,” said Adi Dynar, an attorney and separation of powers expert for Pacific Legal Group.

Read More

Notre Dame at night

People gather to watch the reopening ceremony of the Notre Dame Cathedral on Dec. 7.

Telmo Pinto/SOPA Images/LightRocket via Getty Images

Cherishing our institutions: Notre Dame’s miraculous reopening

We witnessed a marvel in Paris this weekend.

When a devastating 2019 fire nearly brought Notre Dame Cathedral to the ground, President Emanuel Macron set the ostensibly impossible goal of restoring and reopening the 860-year-old Gothic masterpiece within five years. Restorations on that scale usually take decades. It took almost 200 years to complete the cathedral in the first place, starting in 1163 during the Middle Ages.

Could Macron’s audacious challenge — made while the building was still smoldering — be met?

Keep ReadingShow less
Two men sitting on a couch

Sen. Marco Rubio (left), President-elect Donald Trump's nominee to be the next secretary of state, meets with Sen. Lindsey Graham on Dec. 3, in advance of Senate confirmation hearings.

Bill Clark/CQ-Roll Call, Inc via Getty Images

Does it take six months on average for the Senate to confirm a president's nominees?

This fact brief was originally published by Wisconsin Watch. Read the original here. Fact briefs are published by newsrooms in the Gigafact network, and republished by The Fulcrum. Visit Gigafact to learn more.

Does it take six months on average for the US Senate to confirm a president's nominees?

Yes.

The average time the U.S. Senate takes to approve nominees to a president’s administration is more than six months.

The nonprofit Center for Presidential Transition reported that as of Nov. 11, 2024, the average number of days has more than doubled under presidents elected since the 1980s:

Keep ReadingShow less
Closed pharmacy

Pharmacies are closing all across the United States.

J. Michael Jones/Getty Images

28 miles to the nearest pharmacy? For many, that's the only option.

Pharmacies in the United States are closing at an alarming rate. The ACT Pharmacy Collaborative, a partnership between community pharmacy networks and academia, reported that 244 pharmacies closed in just the first six weeks of 2024. Similarly, Rite-Aid has closed 500 stores, CVS will close another 300 stores by the end of the year and Walgreens will close 1,200 over the next three years.

In my home state of Oregon, pharmacists are constantly facing untenable scenarios. At a recent hearing, a pharmacist from a rural community testified how a woman from a neighboring town called his pharmacy late in the day needing to urgently fill a prescription. Unfortunately, the only pharmacy in her town had permanently closed, so she was stuck frantically attempting to locate someone who took their insurance and had the medication in stock. His pharmacy had the medication, so while she drove 28 miles on rural roads, the pharmacy stayed open — 30 minutes after closing because that’s what pharmacists do. We take care of patients.

Keep ReadingShow less
Robert F. Kennedy Jr. speaking while Donald Trump looks on

President-election Donald Trump tapped Robert F. Kennedy Jr. to lead the Department of Health and Human Services.

Jabin Botsford/The Washington Post via Getty Images

RFK Jr. as secretary of HHS is a departure from Project 2025

The American voters bought a ticket to a second Trump administration, but the ride that will be the Department of Health and Human Services might just be a bit crazy, if not downright dangerous.

While President-elect Donald Trump did not seem to follow Project 2025’s recommendations for HHS, the American people should be no less afraid of how the second Trump administration might affect their health outcomes.

Keep ReadingShow less