This Humble Fish May Help the Supreme Court Weaken the ‘administrative State’

The Washington Post / Ann E. Marimow

11:56 JST, January 17, 2024

CAPE MAY, N.J. – A slender, silvery fish, sold for bait and canned as sardines, has the potential to play an outsize role in weakening the power of federal agencies to regulate vast areas of American life – overturning long-standing Supreme Court precedent in the process.

But the case before the high court this week is not really about the herring.

For 40 years, courts have generally deferred to the judgment of federal agencies when it comes to turning laws passed by Congress into detailed regulations designed to protect the environment, consumers and the workplace.

They did so because of the precedent set in 1984 in Chevron U.S.A. v. Natural Resources Defense Council, which requires judges to defer to the reasonable interpretation of federal agency officials charged with administering ambiguous federal laws.

But as the court has moved to the right in recent years, the conservative majority has been less likely to invoke that ruling, which outside groups have long seen as giving unaccountable bureaucrats too much power.

Now the high court is reviewing a pair of challenges to federal rules requiring commercial fishermen to pay for at-sea monitors – cases that could lead to the demise of Chevron, much as the 2022 Dobbs ruling overturned the historic Roe v. Wade ruling and eliminated the nationwide right to abortion.

The cases brought by Atlantic herring fishermen in New Jersey and Rhode Island will be argued Wednesday before a court remade by the addition of three justices nominated by President Donald Trump, whose administration put a premium on judges skeptical of federal government power.

Both lawsuits are backed by conservative legal organizations – the Cause of Action Institute and New Civil Liberties Alliance – that have received millions of dollars from the Koch network, founded by billionaire industrialist Charles Koch and his late brother, David Koch.

The framework, known as “Chevron deference,” may sound like a boring academic exercise, says William & Mary law professor Allison Orr Larsen, who specializes in administrative law. But the question of how much flexibility to give federal agencies to implement laws passed by Congress has enormous implications.

“There’s a lot of money and practical consequences attached to those legal ambiguities,” Larsen said. “It’s ultimately a question about who decides. Is it an agency who decides or a court?”

Supporters of Chevron, including environmental groups, labor and civil rights organizations and the Biden administration, say Congress often writes broad statutes to give government experts the leeway to address emerging complex problems. Overturning or scaling back the legal precedent, they say, will hamstring federal agencies and shift power to the courts and Congress.

Solicitor General Elizabeth B. Prelogar, who is defending the precedent, told the justices in court filings that overruling Chevron “would be a convulsive shock to the legal system.”

David Doniger, senior strategic director of the Natural Resources Defense Council, called the effort to undo Chevron a “brazen attempt by the right to hobble modern government and destroy its capacity to address the modern world’s problems at the scale, speed and number they come at us.” The government, he said, will be paralyzed if Congress is forced to make technical, scientific policy decisions.

Opponents of Chevron, in contrast, say the framework unfairly tips the scales in favor of government agencies in litigation challenging burdensome regulations.

Philip Hamburger, a Columbia Law School professor and founder of the alliance representing the Rhode Island fisherman, called it “scandalous” and unconstitutional to require judges to systematically favor one powerful party – government agencies – over any other.

“Chevron is an embarrassment and the court should get rid of it,” Hamburger said, adding that it is the duty of judges to exercise independent judgment without deference.

While lower courts have relied on the Chevron framework in tens of thousands of cases evaluating federal rules and orders, the approach has fallen out of favor in the last decade with conservatives on the Supreme Court.

Former Solicitor General Paul Clement, who is representing the New Jersey fishermen, said in his court filing that it’s time to officially call it quits at all levels of the judiciary.

“The question is less whether this Court should overrule Chevron, and more whether it should let lower courts and citizens in on the news,” he wrote. “The reality is that Chevron has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough.”

Paying to monitor the fish

To prevent overfishing and promote conservation, the Trump administration initiated a program in 2020 requiring Atlantic herring fishermen to carry monitors aboard their vessels during certain trips to inspect operations and track fishing limits.

The National Marine Fisheries Service interpreted a statute passed in 1976 as giving the government the power to pass on the cost of the monitors to the fisherman.

A coalition of fishermen sued, asserting that the Magnuson-Stevens Act does not directly authorize the government to force them to pay for the $700-a-day monitors on trips that often last several days.

William Bright, co-owner and captain of the 140-foot Retriever based in Cape May, N.J., said that is his concern – not the broader concept of government monitoring.

Bright’s worries center on the economics of his industry, where the profit margins are slim and the cost of paying for monitors could reduce annual returns by up to 20 percent.

“Nobody cares more deeply about the fishery than we do and nobody has more to lose if it collapses than we do,” Bright said during an interview at Lund’s Fisheries, the company that processes his catch. “They want to increase the monitoring, but they don’t have the funding, so they want us to pay. I hope the court thinks about our ability to make a living.”

The industry-funded monitoring program was short-lived, ending last year due to lack of sufficient funding. The fishermen were reimbursed for all costs. Bright and others behind the lawsuit, however, worry the plan will resurface and expand to other types of fish.

Wayne Reichle, president of Lund’s Fisheries and part owner of the Retriever, said the case is not about a particular political outcome but the viability of the industry.

In addition to the New Jersey case, the court added the second, nearly identical one from Rhode Island to its calendar – presumably because Justice Ketanji Brown Jackson was recused in the New Jersey matter after serving on the appeals court panel that initially reviewed it before her elevation to the Supreme Court.

In both cases, federal courts of appeal applied Chevron and deferred to the government’s interpretation of the statute.

“Congress has delegated broad authority to an agency with expertise and experience within a specific industry,” Judge Judith Rogers, a nominee of President Bill Clinton, wrote for the majority on the U.S. Court of Appeals for the D.C. Circuit. “Although the Act may not unambiguously resolve whether the Service can require industry-funded monitoring, the Service’s interpretation of the Act as allowing it to do so is reasonable.”

Judge Justin Walker dissented, saying the court should not have allowed an agency to fill in the payment requirement based on language found elsewhere in the law.

“Agencies are creatures of Congress, so they have no authority apart from what Congress bestows,” wrote Walker, a nominee of President Trump.

Congress’s silence on an issue, he added, does not automatically “give an agency carte blanche to speak in Congress’s place. In fact, all else equal, silence indicates a lack of authority.”

Evolving views on Chevron

The framework for courts to evaluate agency action was not always the target of conservative derision. The late Justice Antonin Scalia, who taught administrative law, endorsed the precedent early in his tenure in a 1989 Duke Law School speech. “In the long run Chevron will endure and be given its full scope – not so much because it represents a rule that is easier to follow and thus easier to predict (though that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs,” he predicted.

Years later, however, legal scholars point to opinions Scalia wrote that demonstrated greater skepticism of agency power, including in cases involving Environmental Protection Agency rules.

When the Supreme Court initially agreed to take the New Jersey case in May, they rejected a narrow question posed by the challengers and said they would only consider something broader: whether to overturn or scale back Chevron.

Kristin Hickman, a professor at the University of Minnesota Law School, predicted the court may stop short of scrapping precedent and said agencies are well-positioned to decide how to implement the more technical aspects of statutes Congress has passed when the tools of interpretation that judges typically apply don’t offer clear answers.

“Let’s be real, the courts are not best suited for making those kinds of policy choices,” Hickman said. “If you left it to all the lower courts, you would end up with a lot of inconsistency. That’s not helpful for people trying to comply with regulations when you’re talking about the national economy.”

Liberal Justice Elena Kagan made a similar point when the court’s conservative majority sharply limited the EPA’s ability to combat climate change in a 2022 decision. Kagan wrote in dissent that the majority had wrongly empowered the courts, instead of Congress or expert agencies, to pass judgment on climate policy.

Members of Congress “often don’t know enough – and know they don’t know enough – to regulate sensibly on an issue,” Kagan wrote. “They rely, as all of us rely in our daily lives, on people with greater expertise and experience. Those people are found in agencies.”

But that view is the opposite of how some conservatives and Trump, the leading Republican candidate in this year’s presidential election, see the government bureaucracy and federal workers. Trump has promised a more aggressive approach if he returns to the White House, vowing to “totally obliterate the deep state” and “throw off the corrupt political class.”

The herring cases are just one way the court is being asked to diminish the power of administrative agencies. This term, the justices have already held oral argument in a case challenging in-house legal proceedings used by the Securities and Exchange Commission and another questioning the funding mechanism for the Consumer Financial Protection Bureau.

During Trump’s tenure, White House counsel Donald McGahn said the administration looked for judicial nominees, like Justice Neil M. Gorsuch, who shared the president’s view of the growing power of the “administrative state.” At a 2018 conference of the Conservative Political Action Conference, McGahn said Gorsuch “stood out” among potential Supreme Court nominees for questioning the constitutionality of Chevron as an appeals court judge.

“The president has a great focus on curbing the unelected from the idea of overregulation,” McGahn said. “He looks for folks he can relate to in that way.”

Gorsuch’s mother, Anne, was head of the EPA during the Reagan administration, when the agency wrote the rule that was challenged by environmentalists, leading to the Chevron decision.

Now on the high court, and in position to reverse past precedent, Justice Gorsuch suggested in a 2022 dissent that Chevron “deserves a tombstone no one can miss” – and called on his colleagues to act soon.

“We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts,” he wrote. “Someday soon I hope we might.”

The cases are Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.