I mentioned the then-pending oral arguments in Loper Bright and Relentless in The View From Here on Tuesday. Well, those arguments happened yesterday, so now it’s time for some analysis.
Before we get to that, a little background is in order.
In 1972, Congress passed the Magnuson-Stevens Fishery Conservation and Management Act, “to respond to the threat of overfishing and to promote conservation.” That law created eight regional fisheries councils. Each of those councils is charged with producing a fisheries management plan. Under the plan created for New England herring fisheries, half of all fishing trips had to carry a federal monitor. Originally, all the observers were employed by the federal government. In 2020, the management plan required the fishing boats to pay for monitors reporting to the federal government. The cost was over $700. Many vessel owners complained that this additional expense resulted in zero profit or even a loss for a day’s fishing.
Congress did not authorize billing private fishing companies for federal monitors. However the Department of Commerce interpreted the requirement that it 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,” to mean that half the fishing boats had to pay for those observers.
This brings us to the Chevron deference. That precedent comes from a case called Chevron V Natural Resource Defense Council inc. Decided in 1984, that case is the basis of the modern administrative state. In a nutshell, the opinion in that case requires courts to give the widest deference to administrative regulations. The decision reads, in part:
When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones ….
— Chevron, 467 U.S. at 866
The Chevron deference is a two-stage test. If the law explicitly permits an action, the agency can do whatever it wants. If the law is ambiguous, the courts can review the agency’s decision to determine if the resulting regulation was a possible way to go about enforcing the law. If so, the courts lose their ability to interfere.
Loper Bright and Relentless, both independently owned herring fishers, sued in federal court, saying that having to pay for the monitors exceeded the scope of the Magnuson-Stevens act. In both cases the district and appeals courts relied on the Chevron deference to find that making the fishermen pay for the observers was allowable under the law. SCOTUS granted certiorari in the Loper Bright last May, and in Relentless in October and the cases were scheduled to be argued at the same time.
Now on to yesterday’s arguments. As a slightly more than casual observer of SCOTUS, I came away with the impression that the majority of the Justices were ready to throw Chevron on the dust heap.
Relentless attorney, Roman Martinez opened his arguments this way:
Mr. Chief Justice, and may it please the Court:
For too long, Chevron has distorted the judicial process and undermined statutory interpretation. It should be overruled for three reasons.
First, Chevron violates the Constitution. Article III empowers judges to say what the law is. It requires them to interpret federal statutes using their best and independent judgment.
Chevron undermines that duty.It reallocates interpretive authority from courts to agencies, and it forces courts to adopt inferior agency constructions that are issued for political or policy reasons. In doing so, Chevron blocks judges from serving as faithful agents of Congress. It mandates judicial bias and encourages agency overreach. And by removing key checks on executive power, it threatens individual liberty. . .
I think that the opening statement sums up the problems of the Chevron deference quite well.
Loper Bright council, Paul Clement opened with this:
. . .There is no justification for giving the tie to the government or conjuring agency authority from silence. Both the APA and constitutional avoidance principles call for de novo review, asking only what’s the best reading of the statute. Asking, instead, is the statute ambiguous is fundamentally misguided. The whole
point of statutory construction is to bring clarity, not to identify ambiguity. The government defends this practice not as the best reading of the APA but by invoking stare decisis. That is doubly problematic. First, at issue here is only Chevron’s methodology, which is entitled to reduced stare decisis effect. We have no beef with Chevron’s Clean Air Act holding, and we could not take issue with its APA holding because it failed to mention that statute. But, second, all the traditional stare decisis factors point in favor of overruling Chevron’s methodology. The doctrine is unworkable as its critical threshold question of
ambiguity is hopelessly ambiguous. It is also a — a reliance-destroying doctrine because it facilitates agency flip-flopping. So the reality here is the Chevron two-step has to go and should be replaced with
only one question: What is the best reading of the statute?
While reading the transcripts of the oral arguments of Loper Bright, it became clear that the conservative Justices were generally skeptical of Solicitor General Elizabeth Prelogar’s claims that overturning Chevron would create chaos in the courts. Paul Clement argued that the chaos could be mitigated by the Court, and the majority of the Justices seemed to agree.
As I said in the View, it’s past time for Chevron to go away. And based on the questions and issues raised by the Justices, that’s going to happen. We’ll know for sure in June when the Court releases its Opinion.