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A real threat to the administrative state

A case brought by fishermen may rein in overbearing bureaucracies

A commercial fishing boat heads out of Portland Harbor in Portland, Maine. Associated Press/Photo by Robert F. Bukaty

A real threat to the administrative state
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Coda is a beautiful movie about a young woman making her way in the world while working in the New England fishing industry alongside her parents and brother, all of whom are deaf (CODA is an acronym for child of deaf adults). She leaves the family fishing boat at the same time the federal government mandates that a government observer go on their boat to monitor the size of their catch. This leads to a Coast Guard encounter and fine, but that part of the story is not all fiction. The federal government has imposed a rule requiring fishing boats to bring aboard government observers and inspectors, and sticking fishermen with the bill (sometimes upwards of $700 per day). That fisheries rule is now at the center of a much bigger fight, as the U.S. Supreme Court considers what deference federal courts owe to government agencies as they interpret rules and statutes.

On Wednesday of this week, the Court heard oral argument in two cases—Loper Bright Enterprises and Relentless, Inc.—on the future of so-called “Chevron deference.” The doctrine’s title comes from a 1984 decision written by Justice John Paul Stevens known as Chevron U.S.A., Inc. v. Natural Resources Defense Council. In that decision, the Court said that federal judges should defer to a federal agency’s interpretation of federal law as long as Congress had not spoken directly to the precise question involved and the agency’s answer as not unreasonable. Though that may sound dry, the doctrine has tremendous importance for the lives of real people like the fishermen forced to pay for inspectors aboard their boats.

The core principles at issue are pretty straightforward. The case boils down to three concerns, all of which were posed to the lawyers as questions from the justices. First, isn’t it the job of Congress to write the laws, and do we want to encourage Congress to write vague laws by allowing agencies to fill in the details through their interpretations of broad terms? Second, isn’t it the job of judges to decide what the words mean in statutes and rules, and why should judges give an automatic preference to the interpretations of government bureaucrats over everyday citizens governed by that law? Conversely, don’t agencies have an expertise in their area of responsibility, and doesn’t it make sense to defer to that expertise when interpreting statutes in that area?

The lawyer for the fishermen pointed out that granting the government agency automatic deference is “not consistent with the rule of law.”

The cases point to deeper divides between the right and left in American life. The cases were brought by conservative and libertarian lawyers who are deeply skeptical of the modern administrative state, the behemoth in Washington that governs so much of our lives and economy. Thus, the lawyer for the fishermen pointed out that granting the government agency automatic deference is “not consistent with the rule of law. If we have the best view of the statute, we should win this case.” Instead, Chevron puts a thumb on the scale for the government, meaning its interpretation wins as long as it’s not unreasonable, regardless of whether it is the best interpretation.

Liberals, meanwhile, trust the modern administrative state, especially those agencies charged with protecting the environment and consumers. Justice Kagan called Chevron at oral argument “a doctrine of humility,” meaning that courts recognize the limits of their role to make policy or exercise a specialized expertise. That is a legacy of the progressive tradition, with its emphasis on expertise, that can trace all the way back to Woodrow Wilson.

The justices did not indicate an initial vote in the case, and a full decision is not expected until late June. Even with a conservative majority on the Court, the fishermen face an uphill battle, as they seek to overturn a well-established precedent of 40 years. Still, it seems highly likely the majority will at least cut back on Chevron, putting more of a burden on the agency to provide the persuasiveness of its interpretation, rather than giving its reading controlling effect as long as it’s not obviously wrong. That is absolutely the right direction to go. Citizens deserve a fair day in court, and Congress should fulfill its singular role writing the nation’s laws with clarity.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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