Family-run fishing businesses face a fraught and competitive environment, even independent of burdensome regulations. But one such outrageous regulation is now before the Supreme Court, in a case with significance far beyond our nation’s fisheries.

The National Marine Fisheries Service (NMFS), part of the Department of Commerce, promulgated a rule that pertains to most herring boats, such as those portrayed in the Oscar-winning movie CODA. If a vessel is determined to need a federal monitor and has not already been assigned one under a federally funded program, it must pay for the monitor itself. The cost of doing that for most herring boats exceeds $710 per sea day.

Four family-owned and -operated fishing companies contend that the industry-funding requirement—not explicitly authorized by the 1976 Magnuson-Stevens Fishery Conservation and Management Act—will have a devastating economic impact on the herring fleet and will disproportionately affect small businesses, destroying historic communities. They sued the government to get the rule voided as beyond NMFS’s lawful authority.

The district court ruled for the government, finding that various provisions of the Magnuson-Stevens Act together conferred broad authority on the NMFS to implement regulations to manage fisheries. The court also found that, even if the statute were ambiguous, the government’s reading would be “reasonable” and thus worthy of judicial deference under a doctrine established by the 1984 Supreme Case Chevron U.S.A. v. Natural Resources Defense Council.  

A divided panel of the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling, reasoning that the Magnuson-Stevens Act’s authorization for the placement of monitors left room for agency discretion regarding the program’s funding mechanism. The Supreme Court took up the case, not to nitpick lower-court interpretations of fishing regulations but to consider whether to overrule Chevron—or at least to clarify whether statutory silence concerning controversial powers expressly but narrowly granted constitutes an ambiguity requiring deference to the agency on broader assertions of authority. Originally a little-noticed decision that was supposed to insulate executive decision-making from judicial meddling, Chevron has ballooned to be the central facet of administrative law that allows bureaucratic rule.

The Manhattan Institute filed an amicus brief in this blockbuster case, joined by professors Richard Epstein, Todd Zywicki, Gus Hurwitz, and Geoffrey Manne. We argue that the Court should take this opportunity to overhaul the Chevron-deference regime because this experiment in rebalancing the relationship between presidential administration and judicial review has failed. It has led to agency overreach, haphazard practical results, and the diminution of Congress. Though intended to empower Congress by limiting the role of courts, Chevron has instead empowered agencies to aggrandize their own powers to the greatest extent plausible under their operative statutes, and often beyond.

Congress has proved unequal to the task of responding to this pervasive agency overreach and now has less of a role in policymaking than in the pre-Chevron era. Courts, in turn, have become sloppy and lazy in interpreting statutes. It’s a vicious circle of legislative buck-passing and judicial deference to executive overreach.

Chevron deference rests on the presumption that Congress won’t over-delegate and that agencies will be loyal agents. But the past 40 years have shown that Congress loves passing the buck and that agencies are actually principals who pursue their own interests. The time has come for the Court to revisit Chevron, whether it chooses to overrule it explicitly or keep it nominally under a newly restricted standard. Indeed, the Court did the latter in the 2019 case Kisor v. Wilkie, where it preserved judicial deference to agency reinterpretation of its own regulations as devised in the 1997 case Auer v. Robbins. Kisor reworked Auer deference so completely that both Chief Justice John Roberts, who joined Justice Elena Kagan’s majority opinion, and Justice Brett Kavanaugh, who joined Justice Neil Gorsuch’s effective dissent, noted that there wasn’t much difference between Kagan’s explication and Gorsuch’s evisceration.

Regardless of what the Court does in Loper Bright Enterprises v. Raimondo, it will be a whale of a legal tale.

Photo: TamaraV/iStock


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