The Supreme Court decided on May 1 to consider rolling back a bureaucracy-empowering legal doctrine when it determined it will hear a case challenging a U.S. Commerce Department rule on fisheries inspectors.
The court’s ultimate ruling could alter the current balance of power between Congress, executive agencies, and the nation’s judiciary by tearing away at the legal underpinnings of the modern administrative state, which critics deride as an illegitimate fourth branch of government.
The decision to accept the case might foreshadow a narrowing of the application of the so-called Chevron deference doctrine that the Supreme Court enunciated in 1984. In the landmark ruling in Chevron v. NRDC, the nation’s highest court held that while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
In other words, Chevron stands for the proposition that an executive agency’s interpretation of a statute it administers is entitled to deference unless Congress has said otherwise.
Conservatives and Republican policymakers have long been critical of the doctrine, saying it gives unelected regulators far too much power to make policy by going beyond what Congress intended when it approved various laws. The authority of regulatory agencies has been increasingly questioned in recent years as the conservative majority on the Supreme Court has grown. Conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have expressed skepticism of the Chevron doctrine.
As is their custom, the justices did not explain in the unsigned order in Loper Bright Enterprises v. Raimondo, court file 22-451, why they agreed to accept the case. Gina Raimondo is the U.S. secretary of commerce.
Justice Ketanji Brown Jackson did not participate in the decision to grant the petition in the case and has recused herself. Jackson did this presumably because she heard arguments in the case when she was a member of the U.S. Court of Appeals for the District of Columbia Circuit. She did not participate in the circuit court’s decision in the case because she was replaced on the court after President Joe Biden nominated her to the Supreme Court.
In the case, the divided D.C. circuit court sided with the government, upholding a Department of Commerce rule that was questioned by fishing companies.
The rule requires the owners of vessels, which tend to be small, to pay for having federal observers onboard to oversee operations and ensure compliance with a host of federal regulations, the fishing companies said in their petition (pdf), which was brought with the assistance of the Cause of Action Institute.
The government mandate forces the fishermen in this case “to hand over 20 percent of their pay to third-party at-sea monitors they must bring on their boats—a mandate that Congress never approved by statute,” according to Cause of Action.
The petition stated that this “is an extraordinary imposition that few would tolerate on dry land. But without any express statutory authorization, the National Marine Fisheries Service (NMFS) has decided to go one very large step further and require petitioners to pay the salaries of government-mandated monitors who take up valuable space on their vessels and oversee their operations,” the petition stated.
“That is truly remarkable, so much so that even the agency acknowledged that the power it asserted was highly controversial. In a country that values limited government and the separation of powers, such an extraordinary power should require the clearest of congressional grants.”
The government has misinterpreted the federal Magnuson–Stevens Fishery Conservation and Management Act, which governs marine fisheries management in U.S. federal waters, to allow the “financially onerous … payment requirement” for domestic vessels “unburdened by statutory caps,” according to the petition.
The circuit court deferred to the government, determining that the statute was silent on the issue and that this is “either a fundamental overreading of Chevron or a powerful argument for its overruling,” the petition added.
Counsel for the fishermen, Paul Clement, who was U.S. solicitor general under then-President George W. Bush, lauded the Supreme Court’s decision to move forward with the case.
“We are delighted that the Court took this case not only to potentially deliver justice to these fishermen, but also to reconsider a doctrine that has enabled the widespread expansion of unchecked executive authority,” Clement said in a statement.
Reached for comment, the U.S. Department of Justice, which is representing Raimondo, refused to do so.
“We decline to comment on this,” Catherine Morris, Special Assistant to the Director, Office of Public Affairs in the Department of Justice told The Epoch Times by email.
U.S. Solicitor General Elizabeth Prelogar filed a brief (pdf) with the Supreme Court on Feb. 16 in which she suggested that the fears of the fishing companies were overblown.
The “financial impact of the program has been limited,” she wrote.
The petitioners “have not identified, to date, a single vessel trip for which they have been required to pay for monitoring services under this rule,” Prelogar wrote, adding that their arguments for overruling Chevron have not been persuasive.
The court is expected to hear the federal rulemaking case in its new term that begins in October.