Will four fishermen take down the administrative state?
Conn Carroll
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Can a federal agency force fishermen not only to carry fishing monitors on their boats but also pay their salary, even if Congress never specifically authorized such a requirement?
That is the question the Supreme Court will address when it hears the case Loper Bright Enterprises v. Raimondo.
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In 1976, Congress passed the Magnuson-Stevens Act, which granted authority to the National Marine Fisheries Service to develop “fishery management plans” for each of the nation’s regional fisheries. In 2020, the service issued new regulations for the Atlantic herring fishery that set a goal of placing fishing monitors on 50% of all herring fishing trips taken every year.
But Congress did not provide the service the funds necessary to pay for such an intrusive regulatory regime. Rather, the statute states that the service “may require” fishing boats to carry fishing observers. The statute never explicitly states that the service has the power to force fishermen to pay for the observers, but another section of the statute says the “fishery management plans” shall contain the “management measures … necessary and appropriate for the conservation and management of the fishery.”
The service argues that, taken together, these two portions of the statute give it the power to force fishermen to pay the cost of the plan’s monitoring regime. And it is a heavy cost. Both sides agree that monitors cost $710 per day and that, on an annual basis, this can reduce a fisherman’s profits by about 20%.
After the regulation was published, four family-owned fishing companies from New Jersey sued the National Marine Fisheries Service in federal court. They argue that because the act explicitly authorizes the service to force fishermen to pay for observers in certain other fisheries, that demonstrates that Congress never intended for some implicit power to let the service force this expense upon them as well.
Both the district court and the appeals court sided with the service. They ruled that because it was unclear whether Congress intended to give the service power to force fishermen to pay for their own observers, a Supreme Court case called Chevron v. NRDC empowers the service to interpret the statute however it wants.
There is a certain logic behind Chevron: Federal agencies are supposedly staffed by experts in their fields who have more knowledge and experience than federal judges when it comes to complex questions of regulation. Federal judges should therefore not make a habit of overruling regulators when it comes to how regulatory schemes are implemented.
However, federal agencies can take and have taken this “Chevron deference” too far. They sometimes even invent ambiguities in order to stretch statutes far beyond their originally intended purpose. And that is what seems to have happened here.
The fishermen petitioners would have the Supreme Court overturn Chevron entirely, or at least to narrow its holding to “at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”
As the fishermen argue in their brief:
Silence is not ambiguity, especially when the extraordinary power of making the citizenry pay for the cost of regulatory enforcement is expressly granted in three limited and obviously inapplicable circumstances. If Chevron really requires deference in these circumstances, then Chevron can no longer be ignored, but must be overruled so that lower courts stop abdicating their responsibility to interpret statutes sensibly whenever they confront any difficulty that can be labeled an ambiguity. But whether to clarify that agencies cannot force the governed to foot the bill for agency enforcement or to reconsider Chevron more broadly, this Court should not allow the extraordinary decision below to stand.
Recent Supreme Court rulings have been increasingly skeptical of Chevron’s holding, and it may be overturned some day. But it looks like in this case, the Supreme Court has an easy out to limit the power Chevron gives federal agencies without upending the entire administrative state in the process.