Communications Litigation Today Quote Craig Gilley, Jay Johnson, Laura Rich, and Fred Wagner on the Status of the Chevron Doctrine

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On June 30, 2023, Communications Litigation Today quoted Craig GilleyJay Johnson, Laura Rich, and Fred Wagner on the status of the Chevron doctrine. 

According to the article, experts believe the U.S. Supreme Court (SCOTUS) justices will likely find it irresistible to use an upcoming case, Loper Bright Enterprises v. Raimondo, to clarify the status of the Chevron doctrine, claiming the case law is salted with citations to decisions by many of the conservative justices inviting a review of Chevron.

Congress must provide clear authority for the administration to act, said Gilley. Agencies can’t rely on “very loose” or “very soft” delegation, he said.

A group of commercial fishing companies in Loper challenged a federal rule requiring the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans. The appellants presented two questions -- whether the D.C. circuit, which ruled in favor of the National Marine Fisheries Service, was wrong as a matter of statutory interpretation, said Johnson. The second question was whether the court should overrule or at least provide clarity on Chevron and the issue of statutory silence. SCOTUS granted hearing of only the Chevron question, Johnson said. “That’s a strong signal the court wants to consider Chevron again and decide whether that case is still viable,” he said.

Chief Justice Clement “knows what she is doing as an advocate,” said Wagner. The court “has been looking for the opportunity to deal with [Chevron] and this was potentially the vehicle for it,” he said.

Limiting or overturning Chevron would present a real challenge for federal agencies. “The impact … would fall disproportionately on the agency’s attorneys and reg writers who will now have to balance an agency’s deeply felt policy goals” against the need to survive “a perhaps hostile review in court,” said Rich.

Access the article here.