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.
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.
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 date to 2020, when the U.S. Department of Commerce’s National Oceanic and Atmospheric Administration and its National Marine Fisheries Service implemented a final rule to compel fishing companies such as those involved in the case to pay for human monitors aboard their vessels.
One of the companies’ lawyers said it’s 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, doesn’t support such a rule and that Congress never authorized the government to create 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.
In Chevron, the court held that although courts “must give effect to the unambiguously expressed intent of Congress,” where courts find that “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.”
Attorney Paul Clement, who was a U.S. solicitor general under President George W. Bush, told a Heritage Foundation audience in September, “I don’t want to say that Chevron is responsible for all the ills of the modern administrative state, just most of them.”
The Chevron case was a challenge to the Environmental Protection Agency’s (EPA’s) interpretation of a statute regulating air pollution. 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.
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.”
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.”
The doctrine’s requirement that courts “exhaust all the ’traditional tools’ of construction before concluding that an agency rule is ambiguous” means that Chevron should have an effect. 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 deference, he 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 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’s 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 is flooded.
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.
On Jan. 9, the court will hear Sheetz v. County of El Dorado (court file 22-1074).
George Sheetz sought a permit from El Dorado County, California, to build a manufactured house on his land. The county required him to pay $23,420 to help finance unrelated road improvements, but Mr. Sheetz argues in his petition that the fee bore neither an “essential nexus” nor “rough proportionality” to whatever local effect his construction project would cause.
He said the fee was an unconstitutional exaction according to Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), but a state court ruled against him, finding that the required fee was authorized by legislation. The California Court of Appeal and the California Supreme Court also ruled against him.
On the same day, the court will hear United States Trustee v. John Q. Hammons Fall 2006 LLC (court file 22-1238), which has to do with Congress’s constitutional authority to establish uniform bankruptcy laws throughout the country.
The U.S. Department of Justice (DOJ) runs the United States Trustee Program, which it describes as “the component of the Department of Justice responsible for overseeing the administration of bankruptcy cases and private trustees.”
A group of hotels argues in its brief that it was treated unfairly when it filed for Chapter 11 bankruptcy in Kansas. Bankruptcy courts in every judicial district outside of Alabama and North Carolina operate under the DOJ program.
The legal issue is whether the appropriate remedy for the lack of uniformity in the program is to grant refunds of increased fees paid in U.S. Trustee districts.
Smith v. Arizona (court file 22-899), a case about the rules governing evidence, will be heard on Jan. 10.
Jason Smith entered not guilty pleas to five drug-related offenses in Yuma County, Arizona. The state sent the drug evidence to a state-run crime lab, but the expert witness who testified against him was different from the expert who performed the tests on the drugs. He challenged the substitution of the witness but was still convicted.
Mr. Smith argued that this substitution of expert witnesses violated his constitutional right to confront his accuser.
On Jan. 16, the court will hear Macquarie Infrastructure Corp. v. Moab Partners LP (court file 22-1165).
Moab filed a class action against Macquarie in federal court in New York, alleging that Macquarie made “false statements and omissions to investors regarding the possible ramifications of new international regulatory laws on its fuel storage business—namely, that one of the fuels it stored ... would be banned and the regulations would have ... long-term negative consequences on its business,” according to a summary at Ballotpedia.
After the fuel was banned, Macquarie’s stock price fell. Moab claimed that the other company violated the federal Exchange Act, which requires a company to disclose a “trend, demand, commitment, event or uncertainty is both presently known to management and reasonably likely to have material effects on the registrant’s financial conditions or results of operations.”
A federal court dismissed Moab’s lawsuit, saying the material misrepresentation claims hadn’t been proven. But the U.S. Court of Appeals disagreed, finding that Moab proved its claims.
The legal issue is whether the 2nd Circuit’s finding—which conflicts with rulings by the 3rd, 9th, and 11th circuits—that a failure to make a required disclosure can support the legal claims made.
On Jan. 8, the court will hear the immigration case of Campos-Chavez v. Garland (court file 22-674), which has been consolidated with Garland v. Singh (court file 22-884).
The cases concern technical requirements regarding notices to appear, which are issued in deportation proceedings.
