Herring fishermen don’t ordinarily catch the big one. Herring is a bait fish, not the prize catch.
However, some fishermen from New Jersey set in motion a challenge to environmental protections and the authority of federal agencies to interpret laws that goes far beyond the fate of the 10-inch herring.
On May 1, the U.S. Supreme Court agreed to hear a case on whether the U.S. Department of Commerce has the authority to require fishermen to allow inspectors on board — and require the fishermen to pay those inspectors. As my colleague James Goodwin said in a recent Politico article, “This has the potential to be one of the most destabilizing decisions this court has issued.”
The case, Loper Bright Enterprises v. Raimondo, will be heard next term, which starts in October. While the fishermen are challenging specific rules guarding against overfishing, at stake is the ability of agencies to write regulations that reasonably interpret laws even when they are ambiguous.
In the 1984 case Chevron v. Natural Resources Defense Council, the court ruled that as long as an agency is working within the parameters of its statutory authority, courts must “defer” to the agency given its expertise and procedural due process. This is known as Chevron deference, and it has guided court review of agency actions for nearly 40 years and is the most cited Supreme Court opinion in history.
Chevron deference is a critical pillar of governance because Congress often passes laws that establish goals for regulatory programs but leave agencies room to fill in the details. That’s what implementing regulations do. Indeed, on average, 18 regulations accompany each law.
Federal agencies, not Congress, are better able to respond with appropriate actions regarding future, unanticipated, and dramatically changing events because they are designed to be nimble and work through a process of learning and revision. For example, the landmark Clean Air Act of 1970 did not anticipate the climate crisis, yet it has been the primary law for federal regulation of greenhouse gases, such as regulating vehicle emissions.
Should the Supreme Court overturn Chevron — a reasonably likely outcome given the court’s conservative majority — the impact will be dire. Judges will be able to rule against any regulation that does not align with their policy preferences, and conservative litigators will certainly shop for such activist judges. At risk are protections to our water, air, and environment, as well as health and safety standards for workers and consumers, financial regulations for banks, and our civil liberties.
Without apology, the plaintiffs’ lawyers in Loper seek to shackle the government’s ability to do its job. Representing the fishermen is the Cause of Action Institute, whose mission is to “limit the power of the administrative state.” A preceding case by herring fisherman in Rhode Island was filed by the National Civil Liberties Union, which believes that the “Administrative State is an especially serious threat to constitutional freedoms” and that “no other development in contemporary American law denies more rights to more Americans.”
Seriously? No other development? Not even mass incarceration? Or the constant legal attacks against LGBTQ+ Americans? Or overturning Roe v. Wade, which threatens access to abortion for 33 million women?
With Justice Ketanji Brown Jackson recused from the Loper case, and justices such as Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas already favoring Chevron’s demise, good governance may already be caught in a herring net. Biden-era regulations, including banning the sale of ghost guns, fuel economy standards, restoring protections under the National Environmental Policy Act, and dozens more may be at risk.
Those who support overturning Chevron claim that it will force Congress to write legislation that more clearly prescribes how federal agencies should implement its provisions. If the debt ceiling impasse is any indication, this argument is rooted in fantasy. The more likely scenario is that no protective legislation will ever be passed — the very outcome the “dismantle the administrative state” crowd is hoping for.
As a striper fisherman myself, I hope we don’t lose herring to overfishing. And as a citizen of this proud republic, we cannot afford to lose the ability of the government to protect and defend the common good.