Supreme Court to consider conservative effort to block federal power and a challenge to ‘qualified immunity’ for police officers

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The Supreme Court on Friday added another case to its docket that asks the justices to overturn decades-old precedent to scale back the power of federal agencies, as well as a case that looks at “qualified immunity” for police officers.

The new case is a companion to a similar dispute involving herring fishermen that the justices have already agreed to hear his term. Although the court did not explain its thinking, it likely added the new case because Justice Ketanji Brown Jackson is recused from the first case, having dealt with it as a lower court judge before her elevation to the high court.

The pair of cases represents a conservative attack on the so-called administrative state.

For decades, conservatives have argued that federal agencies are unaccountable to the public and have become too powerful in violation of the separation of powers. How the court decides the two cases could change the way the government tackles such issues as climate change, immigration, labor conditions and public health.

At issue in both appeals are herring fishermen in the Atlantic who say the National Marine Fisheries Service does not have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels to make sure federal regulations are being followed.

In agreeing to hear the case, the justices signaled they will consider a 1984 decision – Chevron v. Natural Resources Defense Council – that sets forward factors to determine when courts should defer to a government agency’s interpretation of a law. First, they examine a statute to see whether Congress’ intent is clear. If it is, then the matter is settled. But if there is ambiguity, the court defers to the agency’s expertise.

The court will hear both cases, Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, in January.

The justices on Friday also agreed to hear the case of a city council member from Texas who says she was arrested in retaliation for calling for the removal of a police ally.

The case allows the court to revisit the scope of a legal doctrine called qualified immunity, which protects police officers from civil claims.

The case concerns Sylvia Gonzalez, a Castle Hills, Texas, city council member, who led an attempt to circulate a citizens’ petition to remove the city manager – an ally of the police – from office.

Gonzalez was arrested under a Texas tampering law that makes it a crime for concealing or removing a government record. She claims she inadvertently placed a copy of the document in her binder and admitted her mistake.

She spent a day in jail, handcuffed and wearing an orange jail shirt.

The district attorney dropped charges against her, and she later sued in federal court, alleging illegal retaliation in violation of the First Amendment, saying the that the city manager had engineered a plan to arrest her and remove her from office.

She argued in court papers that the tampering statute used against her was overly broad had never been used to charge someone for the “uneventful offense of putting a piece of paper in the wrong pile.”

Under normal circumstances, a person alleging retaliatory arrest must demonstrate that police had not proven probable cause to arrest her. But lawyers for Gonzalez argued that there is an exception to the rule in cases in which the law is not routinely enforced.

A district court denied qualified immunity to the officers, but Gonzalez lost her case at the 5th US Circuit Court of Appeals, which held that there was probable cause to arrest her and that it “necessarily defeated” her retaliatory arrest claim.

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