June 28, 2024 Update: The Supreme Court in an unprecedented victory for multifamily and other businesses, has today reversed its 40-year-old decision in Chevron v. Natural Resource Defense Council. This law governed how courts handled cases involving the interpretation of federal statutes by the executive branch. This effectively empowered Federal Agencies to interpret and affect law, including accumulating four decades regulation leveled against businesses culminating in millions of dollars in cost to builders and businesses. NAHB has estimated that regulation adds 23.8 percent to all building costs.
The question looms. Now what? The days ahead will be filled with many questions. Stay tuned. Yield Pro will be following this topic closely.
The U.S. Supreme Court justices return to the bench the second week of June to issue opinions in argued cases. The court has somewhere around 28 decisions left to release before it begins its summer recess.
Here—in the order in which they were argued—are brief summaries of each of the undecided cases potentially impacting multifamily operations and their ecosystems.
Relentless et al promises to be one of the more profound decisions as it will determine whether the 40-year-old Chevron Deference will remain in place assigning continued regulatory power to unelected government agencies (known as the alphabet).
Federal courts have used the Chevron doctrine for decades to defer to an agency’s “reasonable interpretation” of an ambiguous statute. The doctrine is undergoing challenges in two cases pending before the U.S. Supreme Court that will likely be ruled on by early July 2024. The first is Relentless.
Relentless v. Department of Commerce & Loper Bright Enterprises v. Raimondo (argued Jan. 17, 2024): Whether the Supreme Court should overrule or limit its 1984 decision in Chevron v. Natural Resources Defense Council, in which it held that when a federal statute is ambiguous, courts should defer to an agency’s interpretation of that law as long as it is reasonable.
The question comes to the court in a challenge to a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs, estimated at $710 per day, of having observers on fishing boats to collect data about the boats’ catches.
Ohio v. EPA (argued Feb. 21, 2024): Whether the Supreme Court should temporarily block a rule issued by the Environmental Protection Agency to reduce air pollution from power plants and other industrial facilities while litigation continues.
The case arises from the EPA’s interpretation of a law known as the “good neighbor” provision of the Clean Air Act, which requires “upwind” states to reduce emissions that affect the air quality in “downwind” states.
Moody v. NetChoice & NetChoice v. Paxton (argued Feb. 26, 2024): Whether laws in Florida and Texas that seek to regulate how large social media companies like Facebook and X control content posted on their sites violate the First Amendment.
The two states passed the laws in 2021 in response to a belief that social media companies were censoring their users, especially those with conservative views.
A federal appeals court in Atlanta blocked Florida from enforcing most of its law, while a different appeals court upheld the Texas law, although the Supreme Court put it on hold while the challenge by tech groups continued.
Murthy v. Missouri (argued March 18, 2024): Whether the federal government’s conduct transformed content-moderation decisions by private social media companies into government action and therefore violated the First Amendment, and whether the challengers have a legal right to bring their lawsuit. The plaintiffs in this case—two states with Republican attorneys general and several individuals whose social media posts were removed or downgraded—challenged the Biden administration’s efforts in 2021 to restrict misinformation about the COVID-19 vaccine. They argued that the administration’s actions had violated social media users’ rights to free speech.
Texas v. New Mexico and Colorado (argued March 20, 2024): The latest chapter in a long-running water dispute over the apportionment of the waters of the Rio Grande, and in particular efforts by Texas and New Mexico to settle the dispute over the objections of the federal government.
City of Grants Pass v. Johnson (argued April 22, 2024): Whether an ordinance in an Oregon city that bars people who are homeless from using blankets, pillows, or cardboard boxes for protection from the elements while sleeping within the city limits violates the Eighth Amendment’s ban on cruel and unusual punishment.
Trump v. United States (argued April 25, 2024): Whether (and, if so, to what extent) a former president has absolute immunity from criminal prosecution for his official acts while in office.
The question comes to the court in Special Counsel Jack Smith’s prosecution of former President Donald Trump on criminal charges that he conspired to overturn the results of the 2020 election.
Excerpt Amy L Howe, SCOTUSblog (reference: Holland & Knight Law)
