How Disgruntled Fishermen Could Prompt SCOTUS To Capsize The Administrative State
While you may not care about fisheries, you should care about Chevron deference, which gives too much power to unelected bureaucrats.
By Margot Cleveland – January 17, 2024
8 MIN READ
The United States Supreme Court will hear oral arguments Wednesday in two companion cases that could put an end to our totalitarian administrative state: Relentless Inc. v. U.S. Dept. of Commerce and Loper Bright v. Raimondo.
Here’s your lawsplainer to understand the cases, the legal doctrine at issue — Chevron deference — the oral argument, the punditry surrounding the cases, and the significance of what, on its surface, may appear to be narrow and nerdy issues of administrative law.
Relentless and Loper Bright: the Facts
In both Relentless and Loper Bright, commercial fishing companies sued the U.S. Department of Commerce, challenging a federal administrative rule that requires businesses to pay the cost of government-mandated monitors who travel aboard their vessels during fishing expeditions.
To understand how this administrative rule came about, one must move through the bowels of the federal bureaucracy, beginning first with Congress’s enactment of the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
That act, first passed by Congress in 1976 “to respond to the threat of overfishing and to promote conservation” but amended multiple times since, regulates marine fisheries, which are defined as “one or more stocks of fish.” To protect against overfishing, the MSA established eight regional councils to manage the various fisheries. In turn, those councils establish “fishery management plans,” which specify conservation measures to prevent overfishing.
The MSA tasked the secretary of commerce with reviewing each fishery management plan and related regulations, but the secretary delegated those responsibilities to the National Marine Fisheries Service (NMFS), a division of the National Oceanic and Atmospheric Administration. The NMFS uses regional councils to draft the fishery management plans, which the NMFS must then approve, disapprove, or partially approve. The NMFS and regional councils then issue regulations to implement the approved plans.
(I did warn that you were about to enter the entrails of the alphabet soup of the administrative state.)
The Challenged Rule
This backdrop brings us to the rule being challenged: a 2020 final rule that requires “industry-funded monitoring for the herring fishery.” Under this rule, a targeted 50 percent of commercial herring fishing trips are to be monitored. And while originally NMFS fully funded the placement of observers on herring fishery vessels, in 2018, in response to growing budgetary uncertainties, an amendment to the fishery management plan authorized forcing the fishing industry to pay for the monitoring.
Congress Didn’t Authorize the Final Rule
The plaintiffs in Relentless and Loper Bright filed separate lawsuits against the secretary of commerce, arguing the MSA did not authorize the Department of Commerce to charge the fishing companies for the cost of observers. It’s important to understand that “[a]dministrative agencies are creatures of statute” and “accordingly possess only the authority that Congress has provided.” Thus, “an agency literally has no power to act … unless and until Congress confers power upon it.”
In passing the MSA, Congress expressly provided that a fishery management plan may “require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting data necessary for the conservation and management of the fishery.” But the MSA was silent on whether the management plan could mandate commercial fishing companies to pay for the cost of the observers. Elsewhere in the MSA, however, Congress expressly authorized the secretary of commerce to collect fees to fund observer programs.
The Commerce Department countered that since Congress authorized it to “prescribe such other measures [or] requirements” as are necessary to conserve the fishery, it had the authority to require commercial fishing companies to pay the cost of observers.
Chevron to the Administrative State’s Rescue
The lower courts concluded the MSA was ambiguous concerning whether the Commerce Department could require the fishing companies to pay the cost of the observers. The courts, nonetheless, upheld the final rule by applying the legal doctrine of Chevron deference.
Chevron deference, which was born from the Supreme Court decision in Chevron v. Natural Resources Defense Council, requires courts to defer to an agency’s interpretation of an ambiguous statute, so long as the agency’s interpretation is “reasonable.” Courts owe such deference to the agency’s interpretation even if there is a more reasonable interpretation of the statute, a court had previously interpreted the statute in a contrary way, or the agency had previously interpreted the statute differently.
Chevron Deference Is a Big Deal
The effects of Chevron deference cannot be overstated because deference often dictates outcome. And that outcome is whatever the unelected bureaucrats of the more than 430 federal agencies and other regulatory agencies say it is — so long as they sound reasonable.
So while you may not care about fisheries, you should care about Relentless and Loper Bright because the justices granted certiorari (review) in those cases to decide whether to overrule or narrow Chevron deference.
It is difficult to imagine anything that could be more consequential to the deconstructing of the administrative state than overturning Chevron. First, it would end the practice of agencies making important policy decisions that Congress failed to, or refused to, address. Relatedly, it would remove from the executive branch the power to use administrative agencies to force through extreme policy decisions. Further, reversal of Chevron would likely lead to the end of the related doctrine of Auer/Seminole Rock deference, which requires courts to defer to an agency’s interpretation of its own ambiguous regulations — another legal doctrine girding the administrative state against legal challenges.
Should any doubt remain over the importance of reversing Chevron deference, one need only watch coverage of Wednesday’s oral argument and hear the screeching from the left.
The Main Arguments
Oral arguments will likely focus on several issues, with the concept of stare decisis featuring predominantly. That Latin phrase, translated loosely to stand by that which was decided, is a prudential principle that cautions the court against overturning precedent — even when it is wrong. The court will thus face the question of whether to follow the nearly 40-year-old precedent of Chevron or overrule it.
Second, the justices will consider the fishing businesses’ argument that Chevron deference violates Article III of the Constitution, which vests all judicial power in the courts, including the power “to say what the law is.” The court will likely push the parties to explain whether allowing an agency to interpret a statute, which is the essence of Chevron deference, represents an unconstitutional usurpation of the judiciary’s power.
Next, the oral argument will likely consider the petitioners’ due process argument. Here, the fishing companies argue that Chevron deference requires the courts to favor the government’s position, which violates fundamental concepts of fairness.
The major questions doctrine will likely also find the floor on Wednesday. That doctrine provides that when an administrative agency claims the “power to make decisions of vast economic and political significance,” the agency must be able to point to “clear congressional authorization” for the regulation at issue.
While Chevron deference is the focus of Relentless and Loper Bright, in recent years, the Supreme Court has bypassed that doctrine and instead struck regulations based on the major questions doctrine. The court’s recent decision in West Virginia v. EPA illustrates that approach.
In that case, several states and private parties challenged the Environmental Protection Agency’s attempt to regulate carbon dioxide emissions. The majority held that because the regulation had vast economic and political significance, the EPA was required to cite “clear congressional authority” for its regulation of carbon dioxide. Because there was no such clear statutory provision to regulate carbon dioxide, the Supreme Court in West Virginia held the EPA lacked the authority to promulgate the challenged regulations.
The majority in West Virginia v. EPA addressed the question of administrative authority through the lens of the major questions doctrine, sidestepping Chevron deference. Wednesday, however, at least some of the justices are likely to push the attorneys on how to reconcile those two lines of cases.
What Will the Court Do?
While predicting how the high court will rule is fraught with risk — especially before oral argument — various justices have been foreshadowing their predilections for some time. Justices Gorsuch, Thomas, and Kavanaugh have all criticized Chevron, and Justices Alito, Barrett, and Roberts have all denied agencies deference under the major questions doctrine.
These facts suggest a majority of the justices may be willing to overturn Chevron. And if they do, it will be a mortal blow to the administrative state.
Disclosure: Margot Cleveland is Of Counsel with the New Civil Liberties Alliance, which represents Relentless and which filed an amicus curiae brief in Loper Bright. The views expressed here are her own.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
