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Will a Herring Fisherman Sink the Administrative State?
Clarice Feldman • 03 May, 2023 • 4 Min Read
No survivors, please.
Unable to continue to rule the nation through the dictates of a once predominately liberal Supreme Court, the American Left is trying with the aid of a supportive media to delegitimize the court’s rulings. The campaign to undermine the Court is likely to be amped up now that there is a real possibility the wings of the Administrative State will soon be clipped.
The appellant is a herring fishing company. A National Marine Fisheries Service (NMFS) regulation requires it to have an additional person on boat at the company’s expense to monitor compliance with federal regulations. This would substantially decrease the company’s already slim profit margins and it contends the agency exceeded its authority in demanding it pay the monitor’s salary. The NMFS left the ruling in place after hearing Loper’s challenge. The U.S. Court of Appeals for the D.C. Circuit also deferred to the NMFS after finding the law at issue was ambiguous on the question of who was responsible for paying the agency monitors.
This week the Supreme Court granted certiorari to hear one question in the case: "Whether the Court should overrule Chevron or 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.” Prior to Chevron it was general law that Administrative fact rulings after hearings were to be accorded the same deference given to lower court findings of fact. Higher courts rarely disturb fact resolutions by lower courts and administrative agencies. That’s not their job in the absence of clear error. Their job is to see that the law was followed.
Increasingly Congress has passed legislation which provides no more than general guidance on significant issues, leaving vast areas of national life — environment, labor, securities, and much more — to unelected administrators to fill in the blanks as they choose. The Chevron case required the Court to determine how much deference to give to the interpretation of a statute under its administration. The Court chose to give great deference to the agencies’ interpretations of an ambiguous statute if they constituted “a permissible [that is “rational” or “reasonable”] construction of the statute” where Congress had not addressed the issue. (The Court has also limited application of Chevron deference to cases where there has been formal adjudications or notice and comment rulemaking—it was held not to apply to such things as opinion letters or policy statements.)
The Chevron case has upended the Constitution, granting to the regulatory agencies the power vested in Congress. As John Fund explained in the New York Post,
The job of Congress is to pass laws that are detailed and limiting to the executive. The executive’s job is to execute laws, not write them. And there was a time when some liberals worried the Chevron doctrine encouraged unchecked executive authority. In 1986, Stephen Breyer, a future Supreme Court justice then serving on a federal appeals court, called Chevron an “abdication of judicial responsibility” because the Constitution gives judges, not agency bureaucrats, the power to interpret federal law.
Three years ago Justice Clarence Thomas rendered an 11-page dissent from the denial of certiorari in a case called Baldwin v. United States. It was newsworthy because Thomas was sharply critical of his own majority opinion in a 15-year old telecommunications case (National Cable & Telecommunications Association v. Brand X Internet Services) stating inter alia:
The rule in Chevron thus differs from historical practice in at least four ways. First, it requires deference regardless of whether the interpretation began around the time of the statute’s enactment (and thus might reflect the statute’s original meaning). Second, it requires deference regardless of whether an agency had changed its position. Third it requires deference regardless of whether the agency’s interpretation has the sanction of long practice, And fourth, it applies in actions in which courts historically have interpreted statutes independently. Even if Chevron deference were sound, I have become increasingly convinced that Brand X was still wrongly decided because it is even more inconsistent with the Constitution and traditional rules of statutory interpretation than Chevron. By requiring courts to overrule their own precedent simply because an agency later adopts a different interpretation of a statute, Brand X likely conflicts with Article III of the Constitution. The Constitution imposes a duty on judges to exercise judicial power.
He's not alone among the justices signaling an intent to claw back Chevron and thus rein in the administrative state. All three Trump appointees to the Court appear in accord with Thomas and Alito on this issue. And, further dashing the Liberals hope in this case, the newest member of the Court, Biden appointee Ketanji Brown Jackson, has recused herself from participating because she had heard arguments on it while a member of the D.C. Circuit.
A year ago in West Virginia v. EPA the Court signaled its movement away from the Chevron doctrine, indicating that if the issue in question had broad economic or social impact (the Major Questions Doctrine) the agency cannot act unless explicitly authorized to do so under the empowering legislation.
The public statements of the Court’s majority and its recent backpedaling from the broad deference policy in Chevron, suggest strongly that the Chevron case doctrine is likely to be severely restricted if not discarded when Loper is decided. If so, that will be a significant step in the battle to restore the separation of powers set forth in the Constitution. That would not merely limit bureaucratic authority, but require Congress to actually draft in laws clear language – to legislate and not just delegate – issues of concern to unelected functionaries.
As our editor Michael Walsh has argued, we would be better off as a nation if Congress were to abolish the permanent bureaucracy altogether. But neutering it, as this case has the potential to do, would be a step in the right direction.
Clarice Feldman is a retired attorney living in Washington, D.C. During her legal career she represented the late labor leader Joseph ("Jock") Yablonski and the reform mine workers against Tony Boyle. She served as an attorney with the Department of Justice Office of Special Investigations, in which role she prosecuted those who aided the Nazis in World War II. She has written for The Weekly Standard and is a regular contributor to American Thinker.