The Supreme Court’s conservative majority in Wednesday’s arguments appeared ready to reel in a legal precedent challenged by a group of fishermen who say the decades-old doctrine gave the administrative state too much power over their business.
On Wednesday morning, the high court heard a set of two cases stemming from lawsuits brought by New Jersey fishermen and herring fishermen from Rhode Island who argued that a regulation issued by the National Oceanic and Atmospheric Administration (NOAA) requiring them to pay $700 a day for an “at-sea monitor” is out of the bounds Congress set for the federal agency.
The core of their arguments, presented Wednesday by the New Civil Liberties Alliance (NCLA) and veteran Supreme Court litigator Paul Clement, is what’s known as the Chevron doctrine — a legal theory established in the ’80s that says anytime a federal regulation is challenged, the courts should defer to the agency’s interpretation of whether Congress granted them authority to issue the rule.
“How do we determine how much deference is too much deference?” asked Justice Clarence Thomas in the roughly four-hour-long arguments. “How do we know where the line is?”
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New England and New Jersey fisherman rally outside the Supreme Court Wednesday morning. (New Civil Liberties Alliance and Cause of Action)
Justices Neil Gorsuch and Brett Kavanaugh appeared the most skeptical of the Justice Department’s counterarguments to let Chevron stand, with Gorsuch at one point questioning Chevron’s “disparate impact” on classes of people who have “no power to influence agencies.”
“The cases I saw routinely on the courts of appeals—and I think this is what niggles at so many of the lower court judges—are the immigrant, the veteran seeking his benefits, the Social Security disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking,” stated Gorsuch.
“[I] didn’t see a case cited, and perhaps I missed one, where Chevron wound up benefiting those kinds of peoples. And it seems to me that it’s arguable—and certainly the other side makes this argument powerfully—that Chevron has this disparate impact on different classes of persons,” he said.
Gorsuch called Chevron a “recipe for instability.”
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Supreme Court Associate Justices Neil Gorsuch and Brett Kavanaugh. (Doug Mills/The New York Times via AP, Pool)
“You’ve left open the possibility that a judge, if left to his own devices, would say the fairest ruling is in favor of the immigrant, it’s in favor of the veteran, and it’s in favor of the Social Security Disability applicant, but because of a fictionalized statement about what Congress wanted when it didn’t think about the problem, the government always wins,” he said.
There are nearly 200,000 pages of federal regulation on the books today that govern nearly every aspect of American life. Solicitor General Elizabeth Preloger argued that overturning Chevron would “upend” the framework on which “Congress, agencies, states, regulated parties and the American public” have relied on for decades, and that it would be a “disruption” to the legal system.
But Justice Kavanaugh retorted that federal agencies controlled by different political parties when they change hands make new and retract old rules unfettered is like a “shock to the system.”
“[T]he reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes, whether its communications law or securities law, or competition law or environmental law, it goes from pillar to post,” Kavanaugh said.
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Members of the New England Fishermens Stewardship Association hold signs outside the Supreme Court on Wednesday. (New Civil Liberties Alliance and Cause of Action)
“You just pay attention to what happens when a new administration comes in at EPA, at SEC, at FTC, you name it. It’s just massive change that is at war with reliance, and that is not stability. I think to hold up stability and reliance is a little tough given just watching how it operates every four years,” he added.
Justice Elena Kagan argued that overturning Chevron would mean courts deciding on policy and political issues without expertise.
“Will courts be able to decide these issues as to things they know nothing about? Courts that are completely disconnected from the policy process, from the political process, and that just don’t have any expertise and experience in an area?” she questioned.
Chief Justice John Roberts and Justice Amy Coney Barrett asked tough questions of both sides, at times suggesting a scaled back ruling — a “course correction” as was suggested in court — narrowly favoring the fishermen, might be the best approach.
The fishermen say that the mandated cost of at-sea monitors cuts into 20% of their business. Many of them are stewards of fourth- and fifth-generation small family businesses, and say that a legal victory would mean securing their livelihoods they feel have been on the brink.
“It’s pretty much unfathomable,” Jerry Leman, founder of the New England Fishermen’s Stewardship Association (NEFSA), told Fox News Digital in an interview, speaking of the financial burden on the boats for at-sea monitors.
NEFSA is a bipartisan, nonprofit alliance of fishermen off the coast of New England fighting to limit erroneous government regulations.
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“We’ve never really had a say,” Aaron Williams, captain of the F/V Tradition in Stonington, Connecticut, said of the mandate. “It would just be nice to have our voices heard.”
James Valvo, executive director of Cause of Action which represents the New Jersey fishermen said, “nowhere are the perverse, and often punitive, consequences of Chevron more apparent than they are in this case.”
“Requiring these fishermen to pay the salaries of at-sea monitors is neither feasible nor fair, The petitioners are seeking to make a modest living through hard and often dangerous work. They have carried monitors aboard their vessels for decades and are dedicated contributors to NOAA’s conservation efforts and research,” Valvo said in a statement.
Valvo added that unlike fishermen, monitors receive consistent pay regardless of catch size and even when there is no catch at all.
“The substantial costs for each fishing trip and unpredictable yield mean that fishermen would often make less than the monitors or even lose money under this rule,” he said.
Mark Chenoweth, president of NCLA representing the herring companies, said that the Court’s questions “showed that it has a thorough grasp on the constitutional questions at issue in this case, the Administrative Procedure Act issues, and why Chevron deference needs to be ended not improved.”
“We are cautiously optimistic that the Court is prepared to take the final step that is necessary to restore the judicial role in legal interpretation and reverse Chevron,” he said.
The cases are Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Rulings are expected by late June.
Fox News’ Bill Mears and Shannon Bream contributed to this report.
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