Legal Docket: Deep sixing the deep state?

NICK EICHER, HOST: It’s Monday morning, July 10th and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Well, the Supreme Court ended its term in June. If you listened each Monday, you’d have heard something about every oral argument and opinion.

So now we turn to legal disputes bubbling up in the lower courts.

And one of those lower court disputes has now reached the Supreme Court. The justices in May accepted a case that could overturn a 1984 decision.

EICHER: That nearly 40 year old case is called Chevron versus National Resources Defense Council. It’s become known in the courts as the Chevron doctrine. It’s a legal principle that critics say expands government power with no political accountability.

It allows federal agencies to take an ambiguous law and write unambiguous rules that Congress never specified, and Chevron is what prevents the courts from checking the power of the administrative state. The key word in Chevron deference is deference.

And courts give that deference so long as the agency’s interpretation of the ambiguous law is “reasonable.”

REICHARD: And that’s where a lot of challenges have come from. What does “reasonable” mean? And what if a statute is silent about powers expressly granted elsewhere? How much “deference” hands over too much power to an unelected agency?

I called up a lawyer who filed a petition for certiorari with the high court, in another challenge to Chevron. That’s a request for the court to review a lower court opinion for error.

The facts and the law are similar to the case the court has already accepted for review. The two may wind up consolidated into one case.

EICHER: John Vecchione is senior litigation counsel at the New Civil Liberties Alliance, a nonprofit law firm. He represents a few small businesses whose primary industry is commercial fishing.

JOHN VECCHIONE: So these are fishing companies. They fish off New England and mid Atlantic, as far south as, as you know, New York, New Jersey, but primarily New England. They operate out of Rhode Island.

The small fishing operations are wholly owned by Seafreeze Fleet, LLC. They fish for four different types of fish, including herring and squid.

VECCHIONE: They're a freeze operation. They're kind of unique in this area, because they take fewer fish every day, because they freeze the fish on board, and they process it and freeze it. So they're taking less herring and everything else.

REICHARD: Fish in federal waters are managed under the Magnuson-Stevens Act by the National Marine Fisheries Service, ultimately under the U.S. Department of Commerce.

The National Marine Fisheries Service manages and restores fish and their habitat. The agency can require vessels to carry federal observers on board to make sure the agency’s regulations are being carried out.

But that’s where the problem lies.

VECCHIONE: So the issue is this. The National Marine Fishery Service has passed a rule that the observers that the statute says they have to allow on their boat to make sure they're catching the right amount of fish and doing the right sort of thing with the fish they don't keep and all of that, following the regulations. The statute does say that those observers can be on the boat and no one's ever complained about that. But then 20 years after that statute was passed, they passed a regulation that said those observers, some of them called "at sea monitors" now is what they were going to call them. Those would be paid by the fishing boats. They'd be paid by the people who are being watched, like, like as if you were paying for your state trooper to pull you over. And so it would be over $700 a day— this is for herring, if you go herring fishing, so that could be out all day, and they might not make that much money in a day. So they would be losing money to fish.

There are days when the fishing boats leave port that the fishermen have to say what they’re going to fish for.

But the problem is they don’t really know.

VECCHIONE: And so they go out and they go out not for two or three days, like most herring fishermen. They can go up to two weeks. Sometimes they fish for squid, sometimes for butterfish, sometimes for herring, and then they freeze them and set them up for packaging, and then they come back two weeks later.

EICHER: One exception to the rules says if you take less than 50 metric tons of herring per trip, you don’t have to have an observer. But Vecchiones’ clients stay out to sea for a long time, so that rule doesn’t make a lot of sense.

VECCHIONE: But we want it to be per day because everybody else can go out, get 50 tons of herring, come back, no monitor. Go out the next day. 50 tons, come back, no monitor. So other boats could be taking a lot more herring than our boats, and yet, they're not paying $710 a day, it's kind of ridiculous.

For two weeks, they have to keep that observer on their boat, they have to give him a berth, they have to give him a place to eat, a place to do their work. And so it's a big intrusion as it is and to ask them to pay for it is an insult to injury.

EICHER: So the fishing companies sued the agencies. But they lost in lower courts that had relied upon the Chevron doctrine. They held that because the law creating these agencies provides for federal observers, this gives the agencies carte blanche to demand payment from the fishing companies for the cost of the observers. And because the agencies interpreted silence in the law as to who pays, it must be ok to charge the fishing companies.

VECCHIONE: So in the District Court in Rhode Island, the court found that the statute was unclear. Ambiguous is what he said. So when there's an ambiguous statute, he says, well, it doesn't say that they can charge for this. But it doesn't not say they can charge for this. It's kind of silent in the whole issue. So I have to, under this Chevron doctrine, which is that an agency if it comes up with a regulation that the court finds is a reasonable interpretation of the statute, the court has to take that interpretation, rather than the best interpretation of the statute.

And that’s because if the court can’t say the agency’s view was unreasonable, it must take that view as well.

That’s what these disputes are about: whether the Supreme Court should outright overrule Chevron or at least clarify that when a statute is silent, that doesn’t constitute an ambiguity that requires deference to the agency.

VECCHIONE: So we want to get rid of this idea that if Congress doesn't say anything, suddenly the agency has power if it wants it, that can't be right. So we either want Chevron to be removed, because it's a judicially created doctrine. Congress didn't say that, in fact, we think the Administrative Procedure Act says the exact opposite.

REICHARD: I did ask the National Marine Fisheries Service for comment, but it declined, citing this pending litigation.

The other outstanding question is what the federal law Magnuson Stevens Act means when it says agencies can pursue the objectives of a law with regulations that are—key phrase—“necessary and appropriate.”

VECCHIONE: And some courts, in the fifth circuit, says that “necessary and appropriate” is limiting. The court gets to say, is that necessary? Is that appropriate? Or are they just saying it because they want it? And other courts say no, that gives them any power they want. So once again, we want to limit that power, so that the words mean what they say.

EICHER: Vecchione says many Americans don’t understand what’s at stake with what is called the administrative state, or sometimes, the deep state. That conspiracy-theory-sounding term refers to agencies working with lobbyists, while supposedly watchdog media sleep, and all that enables bureaucrats to act as a sort of unelected shadow government.

VECCHIONE: I think that most people think the agencies are doing what Congress said to do in the statute. And under Chevron, that's not true. If Congress is silent, then the agency seemed to be able to get away with anything they want to get away with. That's certainly what happened in this case. So many times the agencies are not following what I think most lay people would call "the law." Here, I read this statute. My people read the statute when it came out. And they didn't oppose it because it looked like the observers were going to be paid for by the Government. So, you know, they weren't against the observers. Just paying for them. But you but they couldn't be American citizens to complain their congressman about this bill coming up, because it didn't say you're going to pay for it.

REICHARD: The fishing companies hope the Supreme Court will end Chevron, or at least end it when Congress is silent on an issue.

Justice Clarence Thomas has been a vocal critic of Chevron, as have Justices Samuel Alito and Neil Gorsuch. Next term we’ll find out who else joins them in that thinking.

A quick sidebar: a movie on Apple TV from 2021 dealt with this very dilemma. It’s called CODA and it’s about a family’s struggling fishing business. But interestingly, while filming, the crew had to abide by those fishing regulations. Example: One day an at-sea monitor had to be on board so one crew member had to get off as the boat could only hold 10 people.

Just going to show that even Big Hollywood is no match for Big Government.

And that’s this week’s Legal Docket.

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