This Supreme Court term, a group of fishermen are poised to undo an injustice
Judicial deference to agencies is particularly troubling given that so much of our lives is now governed by the administrative state. Agency employees aren’t legislators; they are politically unaccountable and sometimes unremovable agency bureaucrats.
The Supreme Court's recent blockbuster cases have had to do with hot-button issues like abortion, racial preferences and guns. But this year, one of the court's most highly anticipated cases has to do with fishermen and administrative law. Don’t be fooled. It may sound dry, but it’s a fascinating case that could upend a deep injustice in the way that courts treat people who find themselves at odds with powerful executive agencies.
In Loper-Bright Enterprises v. Raimondo, the court will consider whether to do away with a doctrine called Chevron deference. Chevron states that when resolving cases between administrative agencies and individuals, judges don’t engage in typical judging. Rather than applying their own considered judgment about a case, where the relevant law is “ambiguous,” the court must defer to an agency’s “reasonable” interpretation of the statute.
Put another way, where an agency is prosecuting someone and threatening them with ruinous fines or penalties, and the person alleges that the agency got the law wrong, the court must defer the agency’s interpretation so long as it’s reasonable — even if an objectively better interpretation exists.
Defenders of Chevron deference say the doctrine prevents courts from replacing the technical expertise of executive agencies with their own personal preferences. But this rationale gets judging fundamentally wrong.
There’s a difference between deciding whether something is good policy (a decision that belongs with the legislature) and whether an executive agency has the authority to enact that policy in the first place, or gotten the law wrong. The latter two are plainly decisions that belong with courts, as the facts of the Loper-Bright case illustrate.
Loper-Bright concerns a statute that requires fishermen to carry a federal monitor onboard to check for potential violations of the law. The statute sets out three instances where the National Marine Fisheries Service may also require fisherman to pay for the monitor’s salary.
Though none of these circumstances apply to the fishermen in this case, the Service nonetheless issued a rule requiring them to pay. Four family-owned, family-operated fishing companies then brought a lawsuit arguing that the agency lacks the authority to pay the monitors’ salary.
The stakes are high for the plaintiffs, who face cramped conditions onboard and already negligible profit margins, and thus stand to lose a significant portion of their livelihoods if the Service wins.
Under normal circumstances, a judge would look at the applicable statute and decide whether it gives the Service power to pass its regulation. But because of Chevron, an appellate court deemed the law ambiguous and deferred to the Service’s purportedly “reasonable” interpretation. In practice, courts almost always deem the agency’s interpretation “reasonable” under Chevron — thus handing them the win. A recent survey found that among the cases where appellate courts found the statute ambiguous, agencies won over 77 percent of the time.
Loper-Bright requires no expertise in maritime policy and has nothing to do with whether forcing small businesses to carry the costs of a federal monitor is a good idea. Instead, it asks the straightforward legal question of what the relevant statute says. It makes little sense to delegate this legal question to an administrative agency, let alone an agency that is a party to the case.
What’s more, there’s reason to believe that rather than being a beacon of technical expertise, agencies have become overcome with purely partisan politics. In many instances, agencies have spent years considering and passing a rule only to see it immediately overturned when a new administration takes office. This has wreaked havoc on small businesses, which rely on certainty in the law.
Judicial deference to agencies is particularly troubling given that so much of our lives is now governed by the administrative state. Agency employees aren’t legislators; they are politically unaccountable and sometimes unremovable agency bureaucrats. And yet they regulate everything from gas stoves to Greek yogurt — often prosecuting people before their own in-house judges with far less due process than courts, making the agency judge, jury and executioner.
Judicial review of agency cases is already very circumscribed. Chevron deference tilts the playing field even farther in favor of the agency. Rather than putting vastly important policy decisions back with the politically accountable Congress, and allowing judges to stand as a check on governmental overreach, Chevron deference encourages Congress to pass these difficult decisions off to their politically unaccountable friends in the executive branch and then leaves those decisions free of judicial review.
But aside from any of these technical arguments about Chevron, there’s a more basic principle at play. If you walk into court, who do you want judging your cause: the people prosecuting you or neutral judges? It’s not just the fishermen, but all of us who should want the latter.
Anastasia Boden is a senior attorney with the Pacific Legal Foundation, where she represents individuals pro bono in civil rights lawsuits against the government.