by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Margot Cleveland of the Federalist explains why Supreme Court cases this week involving fishing regulations could sink a rotten plank of American legal doctrine. The case involves competing interpretations of the Magnuson-Stevens Fishery Conservation and Management Act of 1976.
The lower courts concluded the MSA was ambiguous concerning whether the Commerce Department could require the fishing companies to pay the cost of the observers. The courts, nonetheless, upheld the final rule by applying the legal doctrine of Chevron deference.
Chevron deference, which was born from the Supreme Court decision in Chevron v. Natural Resources Defense Council, requires courts to defer to an agency’s interpretation of an ambiguous statute, so long as the agency’s interpretation is “reasonable.” Courts owe such deference to the agency’s interpretation even if there is a more reasonable interpretation of the statute, a court had previously interpreted the statute in a contrary way, or the agency had previously interpreted the statute differently.
The effects of Chevron deference cannot be overstated because deference often dictates outcome. And that outcome is whatever the unelected bureaucrats of the more than 430 federal agencies and other regulatory agencies say it is — so long as they sound reasonable.
So while you may not care about fisheries, you should care about Relentless and Loper Bright because the justices granted certiorari (review) in those cases to decide whether to overrule or narrow Chevron deference.
It is difficult to imagine anything that could be more consequential to the deconstructing of the administrative state than overturning Chevron. First, it would end the practice of agencies making important policy decisions that Congress failed to, or refused to, address. Relatedly, it would remove from the executive branch the power to use administrative agencies to force through extreme policy decisions. Further, reversal of Chevron would likely lead to the end of the related doctrine of Auer/Seminole Rock deference, which requires courts to defer to an agency’s interpretation of its own ambiguous regulations — another legal doctrine girding the administrative state against legal challenges.