Has the Supreme Court Put Chevron in the Crosshairs?
The Supreme Court granted certiorari in two cases today, Murray v. UBS Securities, LLC and and Loper Bright Enterprises v. Raimando. The first case concerns which party must demonstrate the existence of “retaliatory intent” (or lack thereof) for whistleblower claims under Sarbanes-Oxley, and the latter concerns the scope of the National Marine Fisheries Service’s authority to impose requirements on fishing vessels. Yet it’s the phrasing of the question presented in the second case that is of particular intersest.
The petition for certiorari in Loper Bright presented two questions to the Court:
- Whether, under a proper application of Chevron, the MSA [Magnuson-Stevens Act] implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry.
- 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.
Of note, the Court only granted certiorari on the second question, meaning that the briefing and argument will focus on whether the Court should “overrule” or “clarify” Chevron v. NRDC. To say this is significant is an understatement.
The prospect of overruling Chevron already has legal commentators in a tizzy, but it is important to note that the question presented is not limited to whether the Court should overturn Chevron. The QP asks the Court, in the alternative, to limit Chevron—some would say, confine Chevron to its proper domain—by making clear that a statutory silence does not constitute the sort of ambiguity that justifies deference to the agency. Put another way, the QP asks the Court to reinforce the principle that agencies only have that authority Congress has act
Article from Reason.com
