How a fishing case fits into a long-standing effort to undermine business regulation
The Supreme Court on Wednesday heard arguments in a series of cases that could pave the way for its conservative supermajority to undermine the way American society imposes rules on corporations, furthering a key goal of the conservative legal movement.
Such a ruling would make it easier to challenge regulations in a range of areas, such as keeping the air and water clean, ensuring that food, medicine, cars and consumer products are safe and much more.
The court is expected to rule by the end of its term, most likely in June. But it remains unclear how far-reaching a ruling – and its consequences – would be. Here's a closer look:
What is going on?
The plaintiffs in the case are asking the Supreme Court to overturn an important 1984 precedent. Chevron v. Natural Resources Defense Council. The decision outlines a framework that federal judges — especially at the district and appellate court levels — have used for decades to resolve the myriad legal challenges to regulations.
People who don't like certain rules can file lawsuits, arguing that an agency has exceeded the limits of the authority Congress has given it. Under the precedent set in Chevron, judges must turn to the agency when part of the law Congress wrote that empowers a regulatory agency is ambiguous but the agency's interpretation is reasonable.
In the cases argued Wednesday, owners of commercial fishing vessels are challenging a National Marine Fisheries Service regulation. It requires commercial fishermen to pay the costs of monitors that prevent overfishing. An appeals court upheld the rule based on the Chevron methodology, and the plaintiffs are asking the Supreme Court to overturn that — and undo Chevron.
Why is the case important?
While the question of who pays fisheries monitors primarily affects only a handful of commercial fishermen, the principle laid out in the case could have a profound impact on how the government imposes regulations on a range of companies.
Critics of Chevron argue that this approach puts too much power in the hands of executive agencies, and that courts abdicate their authority to interpret the law. Proponents argue that without such a filter, courts will micromanage a host of extremely technical issues that judges have no expertise to resolve.
“If Chevron disappears,” says Jody Freeman, a law professor at Harvard University who specializes in administrative and environmental law, it could become “a free space for judges to delve into the nitty-gritty of everything agencies do” and “ an invitation for interest group lawyers to try to tie the agencies in legal knots.”
Notably, the lawyers representing commercial fishing industry plaintiffs in Wednesday's case are backed by petrochemical billionaire Charles Koch. He and his brother, David Koch, who died in 2019, have funded libertarian-oriented conservative causes for decades.
What are the possible outcomes in this case?
It is widely believed that the Supreme Court's controlling conservative bloc brought the case with the intention of restricting Chevron. But it's unclear how far the court would go, what the consequences would be or what regulations could be overturned, as there are a number of avenues the justices could take.
At the modest end of the spectrum, the court could simply narrow Chevron's reach. For example, it might say that an agency is not free to interpret ambiguous statutes unless Congress has indicated that it has specifically given that agency this discretion—for example, if a statute says that the agency will adopt a “reasonable” approach to achieve its objectives. mission.
At the aggressive end of the spectrum, the court could quash Chevron entirely and prohibit judges from submitting to an agency's interpretation of the statutes under any circumstances.
What about cases that have already been decided?
Looming over Wednesday's arguments was what a ruling that would curb or even overturn Chevron would mean for past cases decided based on the doctrine.
Although the Supreme Court has rarely invoked Chevron, lower courts have relied on Chevron's methodology thousands of times to enforce regulations by finding that agencies' understandings of ambiguous statutes were reasonable.
An attorney for the plaintiffs, Roman Martinez, told the justices Wednesday that he did not believe overruling Chevron would be particularly disruptive because of the legal principle of not reopening already resolved legal issues. But the attorney general, Elizabeth B. Prelogar, warned the justices that “endless litigation” would follow.
“Litigants are going to come out of the woodwork and try to open up these decisions and claim that they haven't really addressed what they now say is the relevant question,” she predicted.
Where does the conservative legal movement fit?
The Supreme Court's conservative supermajority has eroded the authority of the administrative state, which took shape as part of President Franklin D. Roosevelt's New Deal. It is the primary way modern American society imposes regulations on corporations: Congress creates agencies staffed by technical experts to study different types of problems and gives them the power to issue legally binding regulations.
Such regulations are intended to benefit society at large, but can erode the profits of individual entrepreneurs.
Following the consumer safety and environmental movements of the 1960s, there was a backlash from the business community, where critics argued that government officials unaccountable to voters were enacting regulations whose costs outweighed their benefits. (Elected lawmakers who control agency budgets have a process to overturn specific regulations, and agencies are led by presidential appointees.)
Pushing back the regulatory state became a central ideological goal of the ensuing conservative legal movement. And since President Donald J. Trump consolidated a conservative supermajority by appointing judges who emerged from that movement, the country has moved to do just that.
In June 2020 for example The five Republican appointees then on the court passed a law that Congress had sought to protect the head of the Consumer Financial Protection Bureau from being fired by a president without good cause, such as misconduct. Since Trump's third appointee joined the court, the majority has moved on.
In particular, in June 2022the court expanded and enshrined what conservatives call the “big questions doctrine,” under which judges can strike down rules that have a significant impact if they believe Congress was not explicit enough in authorizing agencies to take such actions.
Against that backdrop, toppling or gutting Chevron seems most likely their next step.