In 1984, the Supreme Court ruled in Chevron U.S.A. v. Natural Resources Defense Council that judges should defer to the reasonable interpretation of agencies in administering ambiguous federal laws. That deference continued to grow in later years to the point that some of us have warned of the emergence of a type of fourth branch of government.
The court went even further in Arlington v. FCC in giving deference to agencies even in defining their own jurisdiction. In dissent, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”
When I testified at the confirmation hearing of Neil Gorsuch, I noted that Chervon would likely be part of his legacy given his opposition to its use. Justice Gorsuch wrote in a 2022 dissent from denial of certiorari in Buffington v. McDonough that what he called “the aggressive reading of Chevron has more or less fallen into desuetude.” He added:
“At this late hour, the whole project deserves a tombstone no one can miss. 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.”
The cases today concern federal requirements that commercial fishermen pay for at-sea monitors. Herring fishermen in New Jersey and Rhode Island are challenging the law in a case with a long list of amicus filings on both sides from groups, politicians, and businesses. The fishermen say that the monitors could put them out of business, costing up to 20 percent of their annual revenues in a business that is already marginal for profits. They argue that the government wants monitors (which they do not necessarily oppose) but lacked the funds. The decision was made to shift the costs to the fishermen and then citing Chevron to curtail judicial review.
One of the lead counsel is my friend and former colleague Columbia professor Philip Hamburger, a brilliant academic who believes that the doctrine has fundamentally distorted our tripartite constitutional system.
In both lower court cases, Chevron carried the day for the agency.
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.
The ruling of the D.C. Circuit captured the theoretical divide.
Judge Judith Rogers wrote for the majority on the U.S. Court of Appeals for the D.C. Circuit and declared that the agency must get the benefit of any doubt. Notably, the court expressed a muddled view that “the Act may not unambiguously resolve whether the Service can require industry-funded monitoring.” The finding that the Act is “not unambiguous” takes a bit of working through in this context. However, the court ruled that “the Service’s interpretation of the Act as allowing it to do so is reasonable.”
Judge Justin Walker disagreed and said in dissent that “agencies are creatures of Congress, so they have no authority apart from what Congress bestows.”
Now the herring will get a hearing on who has to pay for monitoring of fishing operations.
Isn’t Democrat Fascism fun?
Legal experts: If the administration were simply to change this rule TODAY, would that moot the case. Why are the Democrats risking this power over what seems so trivial?