From our high school government classes, we remember that Congress passes bills, and the President signs them. But there’s more to the story. Congress has delegated an enormous amount of its legislative power to Executive Branch agencies in order to “fill in the gaps” in the statutes. It might use a word that needs defining, or offer only the barebones of a certain process, and leave it to the agencies to flesh out the true reach of the statute.
But what if an agency goes too far? Do courts step in? In Loper Bright Enterprises v. Raimondo, we will get some long over-due clarification. What is on the line in Loper Bright?
The question in front of the Supreme Court is essentially whether the Court should put an end to the federal courts’ extreme deference to Executive Branch agencies. This deference is often called “Chevron deference,” named for a case involving the company Chevron U.S.A. back in the 1980s. In Chevron, the Supreme Court announced a deferential methodology for resolving disputes where federal regulators and private parties disagree on the correct interpretation of a statute.
Specifically, in 1984, the Court was confronting questions regarding one of the earliest Environmental Protection Agency (EPA) regulations to implement the then-new Clean Air Ac., Yet the Supreme Court could not make heads-or-tails of what Congress meant when it instructed the EPA to regulate “stationary sources” of pollution, because Congress never told the EPA what a “stationary source” is., So, the Court decided, once all of the “tools” of statutory interpretation yield no result, why not ask the EPA what it thought Congress meant.
This all might have been reasonable. Courts use last-ditch tools of statutory interpretation all the time. But over the decades, the courts’ use of “Chevron deference” has taken a bad turn. Too often, the lower federal courts—often because they have lacked clear guidance from the Supreme Court—embraced “Chevron deference” as an easy way to resolve cases: just make it the first tool in the statutory-interpretation toolbox, and then favor the federal regulators against the private parties.
At Mountain States, we object to that anti-liberty framework, and we have filed a brief in the Loper Bright case asking the Supreme Court to provide clear guidance to the lower courts that they can only use the “Chevron deference” tool—if at all—after they have exhausted all other traditional means of determining what the law is, and even then, only where its interpretive weight supplies an answer that is clearly better than the potential answers supplied by any other interpretation methods that are relevant to the issue before the court.
Case Background
In Loper Bright, a different agency—the National Marine Fisheries Service (NMFS), instead of the EPA this time—claims that its new Funded Monitoring Rule is directed at sustainability within the fishing industry. This monitoring rule charges fishermen a fee to be monitored by a government agent. The reality is that small business fishermen now must pay a price that severely cuts into their profit margins, and places their businesses in jeopardy.
NMFS has said that the new rule was justified for the purposes of sustainability within the fishing industry, and that Congress had allowed NMFS to charge fees for monitors in other contexts (such as when foreign vessels are fishing in U.S. waters. So—according to NMFS—the fact that Congress was silent about forcing mom-and-pops to pay for monitors surely must mean that Congress meant for NMFS to have unchecked discretion to do whatever it wanted.
The appellate court in Washington, D.C., reflexively used the “Chevron deference” tool before bothering to use other tools to figure out what Congress said, and sided with the federal regulators. That outcome defies the fairness principles baked into the Constitution.
Here is what the mom-and-pops needed: a neutral arbiter to interpret Congress’s law, because they did not agree with the federal regulators’ interpretation. What did they get instead? A judiciary that reflexively sided with the federal regulators under the guise that it had no choice because of “Chevron deference.”
We are working to put an end to that, and we said so in our brief at the Supreme Court.
To understand Loper Bright, it helps to understand another “tool” that courts often use to decide cases. That tool is a Latin phrase called stare decisis, which means “to stand by things decided.” Stare decisis generally means that courts will follow their previous rulings, and is meant to enhance predictability within the U.S. legal system. When the Supreme Court decides what the law is, future cases dealing with the same law generally adhere to the Court’s decision.
Now that takes us to the topic of “Chevron deference.” In Chevron, U.S.A., Inc. v. National Resources Defense Council, the Supreme Court announced the “Chevron deference” tool. But we argue that the Court’s use of this “tool” was not itself a decision that is entitled to precedential weight. Instead, it was just a tool, or a methodology, that can always be revisited.
Specifically, in our brief, we argue that (1) “Chevron deference” is not precedent, because (2) “’Chevron deference” was not a decision made by the Court about what the law is; instead, it was the way the Court came to its decision in the Chevron case.
So, how do stare decisis and “Chevron deference” intersect? If “Chevron deference” is treated as precedent, then it is entitled to precedential weight in Loper Bright. Essentially, in cases involving a federal agency interpreting their governing statute, the agency’s interpretation would be deferred to automatically because “Chevron deference” would be treated as precedent, rather than the court being able to look at a statute and make a determination without deferring to the agency. We do not tolerate that outcome, and neither does the Constitution. When our clients disagree with federal regulators regarding what a federal law says, our clients have a right to an unbiased tribunal, and the Constitution imposes an obligation on the federal judges to be neutral and decide for themselves what the law is. The courts abdicate this constitutional obligation when they reflexively favor the federal regulators.
Federal agencies should not receive extreme deference when it comes to statutes and rules that they themselves enforce. When foxes guard henhouses, there are inevitably serious problems!
And when our clients disagree with federal regulators regarding what a federal law means, our clients have a right to an unbiased tribunal, and the Constitution imposes an obligation on the federal judges to be neutral and decide for themselves what the law is. The courts abdicate this constitutional obligation when they reflexively favor the federal regulators.
So how does this impact the context of the Loper Bright Enterprises v. Raimondo case? Well, if “Chevron deference” is accepted as precedent, this would massively impact the decisions that get made in cases such as Loper Bright. Loper Bright Enterprises is a family-owned herring fishing company that operates in New England waters. The regulations set forth by the National Marine Fisheries Service (NMFS), particularly the new Funded Monitoring rule, threaten their business for a couple of reasons. First, herring fishing is done on a small boat. The regulations set forth by NMFS would require an extra person to be on the boat to serve as a monitor. Second, the regulation requires the vessel that wants to fish to cover the cost of the monitor, which is around $700 per day. Overall, Loper Bright Enterprises predicts this will lower their profits by about 20%. If upheld, this type of regulation hurts small businesses like Loper Bright Enterprises and also encourages agencies to impose costs on those that they govern, even if the costs may be unduly burdensome. If the agency is deferred to in this situation because “Chevron deference” is treated as precedent, and therefore must align with stare decisis, Loper Bright Enterprises and many other small fishing businesses will be put in jeopardy. But, perhaps more importantly, the Court passing on the opportunity to state a clear rule for when to apply “Chevron deference” will have the effect of continuing confusion in agency deference cases. The NMFS should not be deferred to in this case because they have overstepped the authority that has been granted to them by their governing statute. The Court should decide what the law is in this case without deferring to the agency and while simultaneously declaring a rule for when “Chevron deference” should be applied. The new rule put into effect by NMFS is costing small businesses the ability to stay afloat and automatically deferring to them in this case would be a disservice to Loper Bright Enterprises and also to future private entities who challenge the regulations of administrative agencies in the United States.
Join the Fight
Since 1977, MSLF has fought to protect private property rights, individual liberties, and economic freedom. MSLF is a nonprofit public interest legal foundation. We represent clients pro bono and receive no government funding. Make your 100% tax deductible contribution today and join the fight.
What’s at Stake
Loper Bright is an opportunity to revisit “Chevron deference” and how much courts must defer to agencies. can or should be applied. Receiving clarity on the use of “Chevron deference” would settle a debate that has been happening for decades and would also impact the Court decision in the Loper Bright case as it would mean that the interpretation of the statute at issue that NMFS asserts would not be automatically deferred to. This would then mean that the new regulation would have a chance of being struck down in this case. This would allow small fishery businesses like Loper Bright Enterprises to have a chance of retaining their profit margins that would allow them to stay in business rather than being at the mercy of agency decisions. A ruling in favor of our position could go a long way to slowing down the ever-increasing administrative state as some power would be taken away from agencies and given back to the courts. This would mean that federal agencies would be kept in check and would no longer be able to keep overstepping the power that has been granted to them. A ruling in favor of our position on “Chevron deference” would also provide a level of protection to individual citizens who are fighting with federal agencies as they would now have a chance of winning the battle to preserve their freedom. We do not want the agency to be automatically deferred to in this case or in any other agency deference case. “Chevron deference” should only be used as an additional tool for the interpretation of statutes and not used a precedent warranting stare decisis.
