The Messenger: Will a New Jersey Commercial Fishing Company Upend the Administrative State?

July 23, 2023 | By ALISON SOMIN
One Dollar Bill

If you were looking for someone to strike a crippling blow against the administrative state, you might not think to start with a small, family-owned commercial fishing company in New Jersey. But constitutional heroes are often surprising. And that’s the case with Loper Bright Enterprises. Their case — which the Supreme Court will hear this fall — may well end Chevron deference once and for all.

What is Chevron deference? In 1984, in Chevron v. Natural Resources Defense Council, the Supreme Court announced its now-famous two-part test regarding agencies’ authority to interpret the statutes they enforce. Essentially, if the statute is ambiguous, courts must defer to the agency’s interpretation, as long as it’s “reasonable” — even if that interpretation isn’t the best one.

Under the Magnuson-Stevens Fishery Conservation and Management Act, the National Marine Fisheries Service (NMFS) can require commercial fishing boats to carry human monitors charged with enforcing the agency’s rules. But the law makes no mention of how those monitors are to be paid. The NMFS, not wanting to foot the bill itself, took the law’s silence as license to force the anglers to pay for the privilege of ferrying around the service’s tattletales.

Following Chevron, a lower court rubber-stamped NMFS’s interpretation. In Loper Bright v. Raimondo, the Supreme Court appears poised to reject the whole sordid scheme of judicial deference. All to the good.

Under the Constitution’s system of separation of powers, it is the legislative branch’s (Congress) job to pass laws, the executive branch’s job to enforce those laws, and the judiciary’s job to interpret the laws when there’s a dispute. But when agencies are permitted to issue rules that go well beyond what the legislature authorized, they subvert our basic constitutional design.

That design exists in part to ensure that judges are impartial and independent. But Chevron subverts this rule of fairness to all parties and requires judges to put a thumb on the scale favoring the government.

Justice Neil Gorsuch has lamented that Chevron has led judges to abdicate their judicial duties. “Rather than provide individuals with the best understanding of their rights and duties under law a neutral magistrate can muster, we outsource our interpretive responsibilities,” he wrote. “… Rather than say what the law is, we tell those who come before us to go ask a bureaucrat.”

In most contexts, ambiguous statutes are construed against the government. The established rule of lenity, for example, requires unclear criminal laws to be interpreted in favor of defendants. This rule reflects the commonsense principle that it is wrong to convict someone of a crime when they could not have known that the conduct would be illegal.

Yet Chevron requires courts to do the opposite, by choosing an agency’s interpretation of a vague law over an individual’s, even if the individual or business has the better interpretation.

In practice, Chevron has been like jet fuel for the administrative state. As the Loper Bright petition observes, “Lower courts see ambiguity everywhere and have abdicated the core judicial responsibility of statutory construction to executive-branch agencies. The exponential growth of the Code of Federal Regulations and overregulation by unaccountable agencies has been the direct result.”

Indeed, Congress passed 4,312 statutes between 1995 and 2016, whereas federal agencies issued 88,889 rules in that same time frame.

Chevron has enabled Congress’s abandonment of its core responsibility: to make the law. Meanwhile, executive agencies have stepped into the void, but without the direct accountability to voters that Congress has under the Constitution.

“At this late hour, the whole [Chevron] project deserves a tombstone no one can miss,” Justice Gorsuch wrote in a dissent from denial of certiorari of another case challenging Chevron. But if the Supreme Court is fishing for a way to end Chevron, it has hooked a lunker in Loper Bright. And they should take that opportunity to reel in a victory for the Constitution and separation of powers.

This op-ed was originally published at The Messenger on July 13, 2023.