On January 17, the Supreme Court will hear a pair of cases — Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — which ask the justices to seize control of much of federal policymaking. Both cases involve the kind of hyper-technical questions of federal administrative law that ordinarily put nonlawyers (and, indeed, many lawyers) to sleep.
And yet, Loper Bright and Relentless are potentially the most consequential cases the Supreme Court will hear in its current term — including the dispute over whether Donald Trump may remain on the 2024 presidential ballot. The plaintiffs’ argument in these cases is that extraordinarily granular policy decisions, which have historically been made by federal agencies with a considerable amount of expertise on such policy matters, should instead be resolved by a judiciary that lacks any such expertise.
Think of questions like how much nitrogen may be discharged by a wastewater treatment plant in Taunton, Massachusetts, or whether there is “effective competition” between cable TV providers and streaming video providers in Kauai, Hawaii. These are the sorts of wonky, highly specialized questions that lawyers typically do not know how to answer. And lawyers do not become any better at answering these questions if they happen to wear a black robe.
(The specific question in Loper Bright and Relentless is whether the National Marine Fisheries Service may require the commercial fishing industry to pay for some of the costs of placing observers on fishing vessels “for the purpose of collecting data necessary for the conservation and management of the fishery” — not exactly the sort of policy question that is covered in law school.)
Nevertheless, the Court appears to be barreling toward the conclusion that judges, and not federal agencies staffed by experts on topics like wastewater management or the economics of telecommunications, should have the final word on these and countless other…
Read the full article here
