One of the most highly anticipated cases on the Supreme Court’s docket this year is Loper Bright Enterprises v. Raimondo. The case, for which the Court heard oral arguments in January, involves a dispute between fisheries and the Department of Commerce. Loper is significant less for its immediate details than for its potential to overrule the Court’s 40-year-old Chevron precedent. While legal scholars across the ideological spectrum have evaluated Loper’s statutory and constitutional arguments, few have considered the potential Pandora’s box of bureaucratic power that would be opened if the Court fails to rule in the fisheries’ favor.

The Chevron deference principle implicated in Loper stems from a landmark Supreme Court decision in Chevron USA, Inc. v. National Resources Defense Council, Inc. (1984). The ruling empowered administrative agencies, absent direct congressional guidance, to interpret federal statutes, provided that courts did not deem their interpretation “unreasonable.” Subsequent decisions narrowed the scope of agencies’ power to interpret federal law, but bureaucrats still wield significant influence in the rulemaking process.

The facts in Loper present the Chevron deference principle in action. A group of fisheries sued the National Marine Fisheries Service, a branch of the Department of Commerce, claiming that it lacks the statutory authority to require fisheries to pay the costs of the government’s at-sea monitoring program. Since the 1976 Magnuson-Stevens Fishery Conservation and Management Act does not explicitly require the government to pay the costs associated with the act’s increased regulation and monitoring of fisheries, the NMFS forces fisheries to pay the agency’s own regulators, who board the fishers’ private boats. According to the plaintiffs’ certiorari petition, NMFS “forces a wide variety of domestic vessels to foot the bill for the salaries of the monitors they must carry to the tune of 20% of their revenues.”

If the Court allows the NMFS rule to stand, agencies will be emboldened to interpret statutes without regard for the costs or regulatory burden their rules impose on private businesses. Such overreach typically bothers libertarian-minded conservatives, but should also worry progressives, who typically support the administrative state.

Imagine, for example, that Donald Trump wins the 2024 election and wants to use federal power to crack down on ESG-based investment funds for failing to act in accord with their fiduciary duties. If Loper is not struck down, the Court would effectively give the Securities and Exchange Commission the green light not only to regulate these funds more closely but also to require them to pay for the potentially high costs associated with those regulations. Those progressives who advocate upholding the rule in Loper would be wise to consider how it could be used against them when the executive is controlled by a Republican president.  

To avoid such scenarios, the Supreme Court should strike down Loper. Only a strongly worded opinion from the justices that clearly delineates agencies’ power to interpret federal statutes can prevent regulatory overreach in this and future cases. Even if the high court balks at the opportunity to overturn its Chevron precedent, though, it should strike down the rule in Loper and give fisheries financial relief.

Photo by Jemal Countess/Getty Images for Women's March


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