The Supreme Court on Friday added a second case as it considers overruling a decades-old doctrine that gives executive agencies wide authority to enact regulations, enabling all nine justices to vote on the consequential issue.
The court previously agreed to hear a near-identical case, but Justice Ketanji Brown Jackson is recusing herself.
By taking up the second case, she will now join her eight colleagues in deciding whether to overturn the Chevron doctrine, which instructs courts to defer to agencies’ interpretations on issues where Congress was silent or ambiguous.
The brief, unsigned order sets up both cases to be heard in tandem in January 2024. Decisions are expected by next summer.
A bedrock of administrative law, the precedent has given agencies broad powers to implement regulations in policy areas across the board, including the environment, public health and consumer protection.
But several of the Supreme Court’s conservatives have voiced skepticism that Chevron is constitutionally sound.
In several recent disputes, the high court has simply avoided the deference by using carveouts and other legal doctrines. The pair of cases now raise a stronger possibility that Chevron will become a bygone era, which would effectively take a sledgehammer to executive agencies’ power.
The Supreme Court earlier this year agreed to consider the issue head on, taking up a case from a herring fishing company. The case, Loper Bright Enterprises v. Raimondo, concerns the company’s fight against a regulation that requires Loper Bright to pay for federal observers aboard their boats. A lower court upheld the regulation under the Chevron doctrine.
Jackson, a member of the court’s liberal wing, is recusing herself, seemingly because she previously served on a lower court that heard the case at the time.
The new case, Relentless, Inc. v. Department of Commerce, originates from the same fishing boat observer regulation and alleviates the recusal issue.
“As to the Chevron issue, this case travels with Loper Bright. While the vessels differ, the statute and the regulation at issue are the same. The wrongful application of Chevron is also the same,” the fishing company wrote to the justices.
In an unusual move, the Supreme Court had sped up consideration of the petition, enabling the justices to take up the case sooner than the normal timeline.
The Biden administration, which is defending Chevron deference, asked the Supreme Court to hold the Relentless case until it decides the first one, raising concerns about how adding it could impact timing, given that written briefs were already submitted in the first case.
“Granting review in this case thus would be superfluous and could delay the resolution of Loper Bright,” the Justice Department wrote in court filings.
