The Court heard oral argument today in two key cases that will determine the power a federal administrative agency has to interpret its enabling statute: Loper Bright v. Raimondo and Relentless Inc., v. Department of Commerce

These two cases challenge a National Marine Fisheries Service (NMFS) rule that requires an on-board individual to monitor the vessel’s compliance with regulations under the Magnuson-Stevens Act (MSA). Here’s the catch: the fishing boats must pay the salaries of these government required watchdogs themselves

This regulation is unduly harsh and has the power to cripple small businesses—in some cases, the salaries are 20% of the fisherman’s total revenues—but the decision in these cases will echo far beyond fisheries as the Court is asked to overturn the highly controversial Chevron Doctrine. 

The Chevron Doctrine began in 1984 as just another tool of statutory interpretation for courts, based on the premise that Congress, either implicitly or explicitly, delegated authority to a given agency to act within the bounds of the statute that created it. Under Chevron, courts will defer to an agency’s interpretation of gaps or ambiguities in its enabling statute if the interpretation is reasonable. 

Unfortunately, Chevron has become one of the key drivers of the growth of the administrative state. The doctrine has manifested in the lower courts as carte blanche for agencies to act with impunity and courts forced to sign off. 

This norm has emboldened agency officials to reach beyond congressional intent and into American lives, knowing courts will defer to them so long as they do not have an unreasonable interpretation—a very low bar to meet. For instance, the two cases argued today revolve around fisheries, which most Americans do not realize the federal government has a hand in. The modern administrative state conducts most quotidian governance—actions that might not be headline-grabbing but nonetheless, impact every facet of our lives. 

On its face, the idea that courts might afford deference to an agency seems relatively benign—some might argue beneficial, given that agencies possess expertise on complicated regulatory issues. But agencies do not have interpretive expertise—experience in reading law—nor should they. Our Constitution vests judicial power in judges, not political actors in federal agencies, and Chevron usurps this crucial judicial role. Chevron ties judge’s hands by forcing them to accept an agency’s legal interpretation if it’s reasonable, even if their independent judgment counsels otherwise. 

Given that agency interpretation of a given statute frequently changes with new presidential administrations, the Chevron doctrine exposes the law to extreme variability as the Court must accept political influence over cases that require the interpretive tool. 

During oral arguments, Justices Kavanaugh, Gorsuch, and Barrett seemed poised to overturn the doctrine. Justice Kavanaugh highlighted that several circuit judges have urged the Supreme Court to overturn the doctrine because it is so unworkable and it enables agencies to accomplish actions they wouldn’t otherwise be able to through the traditional lawmaking process. Further, Chief Justice Roberts suggested the Court might have overruled the doctrine in practice already, given that the Supreme Court has not invoked Chevron in eight years.

On the other side, Justices Kagan and Jackson were firm in their belief that Chevron is crucial to avoid judicial policymaking and if overturned, courts would become “super legislatures.” Justice Kagan expressed her view that Chevron is simply a presumption regarding what Congress wants. But discerning congressional intent, and whether a given agency action falls within it, is the role of the court, not of federal agencies. 

The big question is whether the Court has five votes to overturn Chevron entirely. They certainly have other options—the Court could curtail Chevron’s scope or it could counsel the lower courts to listen carefully to agency expertise, but not to defer completely (known as Skidmore deference). The Court could also hold narrowly on the facts of the case in front of them—whether the fishermen are obligated to pay for monitors—and let Chevron live another day. 

The Court should return to an era where it values the opinion of co-equal branches of government but makes its own, independent legal interpretations (Skidmore deference)—out of respect for the Constitution, to preserve the separation of powers, and to protect the numerous American small businesses that are impacted by overreaching regulation.

Jill Jacobson is a third-year law student at Boston College Law School and a visiting fellow at Independent Women’s Law Center (