On Wednesday, a pair of cases regarding federally mandated observers on fishing vessels (and who pays for them) was argued in tandem before the United States Supreme Court. The cases focus on a small subset of a small fishery (herring), but the decision has the potential to change how federal regulations are made. The real issue in these cases concerns a legal doctrine called “Chevron deference.”
Chevron (in lawyer talk) is based on a 1984 case between Chevron and the Environmental Protection Agency. Essentially, it established a two-step process to determine if a law is unambiguous, and then establish clarification of any ambiguity that isn’t an obvious legal question. Simple, right?
Under Chevron unclear portions of laws defer to the regulators and bureaucrats for interpretation.
The plaintiffs in this case aregue that “Chevron” is actually unconstitutional and should be tossed. That it’s a regulatory intrusion on the legislative branch’s authority to write the laws we all have to live by. As you can imagine, the federal government disagrees. Chevron, after all, has been used as the underpinning for thousands of federal regulations and enforcement decisions.
On Wednesday, Solicitor General Elizabeth Prelogar actually made the assertion that Chevron was used in so many cases it was “too big to change.”
This big question is the result of two relatively small cases, Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Their complaint focuses on fees levied on commercial fishermen by the National Marine Fisheries Service (NMFS) division of the National Oceanic and Atmospheric Administration (NOAA).
Under the NOAA/NMFS rule, observers are mandated to be on fishing vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.” Sounds solid, right? But in three instances, “foreign fishing vessels operating within the exclusive economic zone of the United States,” fishing vessels in the Alaskan fisheries managed by the North Pacific (Fisheries) Council, and vessels participating in “limited access privilege program(s)” established by one of the eight regional fisheries management councils,” the costs for the government’s “eyes and ears on the water” are required to be paid by the vessels, not the government.
Those costs are capped at two or three percent of the “value of fish harvested” by the vessels. Impacted commercial fishermen objected to both the rule and the levy. Despite their protests and subsequent lawsuit, lower courts upheld the “reasonableness” of the regulation — and the subsequent fees — using Chevron deference. Hence the appeal to the high court.
The Chevron U.S.A., Inc. v. Natural Resources Defense Council ruling from 1984 says that in cases of “ambiguous statutes” courts should defer to the regulatory agency’s interpretation of the law in question as long as the judge finds the ruling to reasonable.
“Reasonable,” the commercial fishermen argue, is the rub. Chevron deference itself, they say, isn’t reasonable. In fact, they say Chevron isn’t just unreasonable, it’s unconstitutional. Their argument is that it allows regulators — not the courts — to determine what a law actually means.
They don’t argue that agency over the authority to regulate the fishermen under the Magnuson-Stevens Act, only that the application of Chevron deference in regards to the fees and who pays them grants the agencies too much authority.
That, they argue, is unreasonable.
They say it moves them from intent — clarifying inexact statutory language written by Congress — to having the ultimate authority to interpret a law via rules and regulations the agency itself created.
That, they argue, overrules the Constitution by giving agencies the ability to ignore judicial opinions. It gives them the ability to make the agency’s own interpretation the law without judicial oversight.
The authority to make laws, they argue (correctly), resides solely in Congress. Interpretation of the law lies solely with the courts and must not be ceded (via Chevron deference) to executive branch bureaucratic regulatory authorities.
The Supreme Court’s ruling has the potential to limit the authority of regulators and de-fang federal agencies’ interpretations and the enforcement of rules that the bureaucrats themselves create.
As originally established, the plaintiffs argue, Chevron deference was intended to help government agencies use their internal expertise in the activities they regulate to create responsible guidance…not write rules and set policy according to a current administration’s desires.
Many of the rules that are established and undergird government today aren’t spelled out by statues that were written and passed by Congress. They’re general guidelines. While that might not sound like a big distinction, it most assuredly is.
Interpretation and enforcement of those laws, along with filling in the gaps left by ambiguously written legislation, is largely done by regulators via internal guidelines. Guidelines created by the agencies via their “subject matter experts.” Those are supposed to be based on facts, not politics or ideology.
Since 1984, lower courts have applied “Chevron deference” in deciding if the executive branch’s regulatory interpretation of unclear rules and regulations were reasonable. In case of a tie, the benefit of the doubt went to the government’s interpretation.
But not every judge agrees. One outspoken critic is Supreme Court Justice Clarence Thomas. He believes “Chevron” creates serious separation-of-powers questions. Questions that prevent judges from exercising their independent judgement. That, Thomas has written, cedes judicial authority to executive branch regulatory agencies.
That decidedly doesn’t pass Justice Thomas’ test of “reasonableness.”
A similar objection to application of Chevron deference is the reason that a wide variety of interest groups — from Gun Owners of America to the trade group that represents electronic cigarette makers — have supported the fishermen in their arguments.
The high court’s ruling is expected to more clearly delineate — or rebalance, depending on your position — the separation of powers. The division of opinions on the high court was obvious during two-plus hours of occasionally “spirited” debate Wednesday. The justices are decidedly not in agreement as to a need to adjust, much less toss Chevron deference.
While they may have differed on semantics with Solicitor General Prelogar, Justices Kagan, Sotomayor and Brown agreed with her assessment that eliminating of Chevron deference could deliver a “convulsive shock to the legal system.”
But the Justices who are opposed to Chevron were quick to point out the fact that, while elimination might raise future legal questions, Chevron does nothing to resolve existing significant legal issues. In fact, they say, it raises them. As Founders designed the process, they pointed out, the legislative branch passes the laws. The executive branch carries them out. Then, as necessary, the courts — ultimately the U.S. Supreme Court, when necessary — decide disputes over what the laws mean and if they’re being properly enforced.
Chevron’s critics, including the fishermen and Justices Thomas, Kavanaugh and Gorsuch, think the regulatory deference of the last 40 years has given far too much latitude to the agencies and the executive branch to decide those questions.
Consequently, the Supreme Court now has the opportunity to realign that. Their action could range from a significant tightening of the existing guidelines, thereby clarifying and limiting the reach Chevron deference, to striking it down entirely.
Chevron’s backers say it prevents legal and administrative chaos by using the regulatory agencies’ expertise to clarify ambiguous portions of broadly-written laws. They argue some laws may be intentionally vague to allow the agencies’ “subject-matter experts” to decide how best to implement them.
But Chevron deference, the plaintiffs argue, has allowed the agencies to use those “expert” interpretations to ideologically shade laws and their enforcement toward the viewpoints held by the current administration. They say it expands the reach and power of the administrative state and gives agencies the power to slant interpretations to suit their current purposes.
Neither party is entirely incorrect.
Chevron isn’t based on a legal statute. It’s derived from the Administrative Procedures Act. That Act says “a reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions.” The APA says very clearly that Congress invested the courts, not the agencies with the authority to interpret the law.
As Justice Brent Kavanaugh pointed out, a lot has changed since the APA’s passage. “One thousand or more circuit judges have written,” he told Solicitor General Elizabeth Prelogar, “asking us to overturn Chevron.” Their protests were primarily due to their belief that many agency decisions were based on political or ideological positions, not findings of “subject matter experts.” Today, he said, many regulatory decisions appear to be primarily political or ideological, putting an arbitrary determination of the “greater good” ahead of economics, science, or “reasonableness.”
For prominent examples, look no further than the regulatory flip-flops by the BATFE regarding the legality of a number of firearms components (bump stocks, pistol braces) that appear to have been driven by the current administration’s stance on guns and the Second Amendment. And the problem isn’t confined to guns. All regulatory agencies have some area where political expedients appear to trump solid science.
In Wednesday’s arguments,Justices Thomas, Kavanaugh, and Gorsuch all questioned Chevron’s continuation. Justices Kagan, Sotomayor and Jackson seemed to be working to find common ground where it would be reasonable to preserve at least portions of Chevron. Their opinions seemed more interested in how heavy their caseload could become if the “thousands of cases that applied Chevron deference” were to reappear on federal dockets.
Chevron’s supporters and detractors agreed on one thing: if the high court decides it’s time for Chevron to be changed or set aside entirely, things in “the administrative state” will change significantly. All that from a fight over who pays for observers on fishing boats in Cape May, New Jersey.
A ruling is expected sometime this summer.
We’ll keep you posted.