On a blustery fall morning in southern New Jersey, the weather was too harsh for the fishing boats at the center of a momentous Supreme Court case to put to sea.
A herring fisherman named Bill Bright spoke about the case, which will be argued Wednesday and could lift what he said was burdensome fishing regulation and erase the most important precedent on the power of executive agencies, a long-sought goal of the movement. conservative legal.
As workers cleaned squid and salt air hit the docks, Bright, who has been fishing for 40 years and whose family business is one of the plaintiffs, said he recognized the impact the case could have.
“I can see why this case is such a political issue,” he said. “But for me, it's not political. “This is my livelihood.”
Bright has the backing of a conservative group with ambitions that go far beyond fishing regulations. Its goal is to end a seminal 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law.
The conservative legal movement and business groups have long objected to the ruling, partly out of a general hostility to government regulation and partly out of a belief, based on the separation of powers, that agencies should have only the power they Congress has explicitly granted them. them.
Reversing the decision could threaten regulations on the environment, health care, consumer safety, nuclear energy, government benefit programs and weapons. It would also shift power from agencies to judges.
Bright raised the basic question of his case.
A 1976 federal law requires herring boats to carry federal observers to collect data needed to prevent overfishing. That was fine with him.
“There's nothing wrong with monitors,” he said. “They are actually collecting information that is valuable to us.”
But a 2020 rule interpreting the law that required his company to pay for monitoring, at a rate of about $700 a day, was another matter. “I don't think it's fair,” he said, adding that Congress had not authorized the agency to impose the fee.
He did the math. On a good week at sea, he said, “we could catch $100,000 worth of herring, which would make us happy.” The monitor's fees would add up to 5 percent of that amount, about the same as the $5,000 claimed for each of the four crew members, who can spend weeks without pay preparing for a trip. He added that not all weeks at sea are good.
“That tax,” he said, referring to the monitor's fees, “is going to be very burdensome for a business that at the beginning is very burdened with all the high costs of fuel, all of our supplies, our networks, our equipment.”
Bright did not dispute that Congress could impose such a fee. But he said – and this is the central issue in the Supreme Court case – that it is for judges, not regulators, to decide whether the 1976 law allows it.
The Chevron decision established the framework attacked in Mr. Bright's case, ruling that courts must defer to agencies' reasonable interpretations of ambiguous statutes.
That statement may seem dry, but it has dictated the results in countless disputes, including Mr. Bright's case, Loper Bright Enterprises v. Raimondo, No. 22-452, and a nearly identical one involving Rhode Island herring fishermen, Relentless v. Department of Commerce, No. 22-1219, which will be discussed along with it.
In both cases, the appeals courts (one in Washington, the other in Boston) ruled that the deference demanded by the Chevron decision required a government decision. The U.S. Court of Appeals for the District of Columbia Circuit in Washington ruled that the agency's interpretation of the 1976 law “to permit industry-funded monitoring was reasonable.” The First Circuit, in Boston, said that “at a minimum” the agency's interpretation of the 1976 law was “certainly reasonable.”
Judge Ketanji Brown Jackson is recused from the first case because she had participated in it as a federal appeals court judge. The Supreme Court agreed to hear the second case in October, five months after agreeing to hear the New Jersey case.
If the Supreme Court is going to overturn an important precedent, the justices apparently calculated, the decision would be better off coming from a nine-member court.
The cases are curious in one respect, as the Biden administration explained in a brief defending Chevron. “In practice, the monitoring provisions of the 2020 rule have had no financial impact on regulated vessels,” the brief said, adding that the program was suspended last year and the agency reimbursed the monitoring costs in which it had been incurred under it.
Mr. Bright's company is represented by the Cause of Action Institute, which says its mission is to “limit the power of the administrative state.” The plaintiffs in the Rhode Island case are represented by the New Alliance for Civil Liberties, which says its goal is “to protect constitutional liberties from violations by the administrative state.” Both groups have financial ties to the network of foundations and advocacy organizations funded by Charles Koch, a billionaire who has long supported conservative and libertarian causes.
In their briefs, the two groups noted that Chevron has fallen out of favor with the Supreme Court in recent years and has been criticized by several justices.
Justice Clarence Thomas, in a 2015 concurring opinion, wrote that Chevron “wrests from the courts the ultimate interpretive authority to say what the law is and hands it over to the executive.”
Justice Neil M. Gorsuch echoed this point in a 2022 dissent. “Instead of saying what the law is,” he wrote, “we tell those before us to go ask a bureaucrat.”
The Supreme Court, which had invoked Chevron at least 70 times to decide cases, has not done so since 2016.
“The question is not whether this court should strike down Chevron,” Paul D. Clement, one of Bright's attorneys, told the justices, “but whether it should allow lower courts and citizens to learn the news.”
Although it has ignored Chevron, the Supreme Court has increasingly relied on the “important issues doctrine,” which requires Congress to speak especially clearly when authorizing the executive branch to address issues of political or economic importance.
Forty years ago, when Chevron was decided by a unanimous but short six-member Supreme Court, with three justices recused, it was generally considered a victory for conservatives. Responding to a challenge from environmental groups, the justices upheld a Reagan-era interpretation of the Clean Air Act that relaxed emissions regulation, saying the Environmental Protection Agency's reading of the statute was “a reasonable interpretation” that he had “the right to deference.” “
The modern conservative attack on Chevron, its supporters say, is an attack on regulation and the expertise and independence of administrative agencies.
Clement responded that the question in Bright's case and others like it do not require specialized knowledge.
“Chevron is not limited to thorny technical and scientific issues, as this case well illustrates,” he wrote. “No scientific or technical expertise is needed to determine whether a cash-strapped agency has the legal authority to expand its law enforcement regime, forcing the governed to foot the bill.”
The challengers in the Rhode Island case added that experience does not confer the power to interpret statutes. “No one believes that Congress can force the courts to defer to the United States Chamber of Commerce in trade cases, or to the NAACP in cases of racial discrimination, or to the American Medical Association in public health cases,” his brief said, “simply because these groups have experience in each subject area.”
The brief raised another objection, saying that Chevron systematically favors the government and therefore violates due process.
The Biden administration, represented by Attorney General Elizabeth B. Prelogar, defended the decision, adding that executive agencies, unlike courts, are politically accountable.
“The executive branch,” he wrote, “is controlled by the president, elected by the American people. “When a court applies Chevron, it is giving effect to decisions made by the American people as an exercise in self-government.”
In recent years, the Supreme Court has thrown out important precedents, particularly those related to the constitutional right to abortion and the permissibility of racially motivated admissions to higher education. Prelogar urged the court to preserve Chevron, calling it a “cornerstone of administrative law.”
“Overturning Chevron would be a convulsive shock to the legal system,” Prelogar wrote.
In Cape May, Bright said he recognized the impact his case could have.
“The government's role has been good overall, because we know that without it most of us would not be fishing today,” he said. But he added that there must be limits.
“I don't want to end the observer program,” he said. “I'd just like to keep what we're doing without the added cost.”
Hiroko Tabuchi contributed with reports.
