The Fishermen Who Could End Federal Regulation as We Know It

from New York Times I'm Michael babbaro. this is the. [Music]. daily this week the Supreme Court heard. a case that on its surface appears to be. a routine dispute over a government fee. in reality it could transform how every. industry in the country is. regulated.

my colleague Adam lipac. explains it's Friday January. [Music]. 19th Adam welcome back to the show hello. Michael So Adam remind us of the. essential facts of this case that just. ended up before The Supreme Court a few. days ago a case that I know you see as. among the most important and. consequential of this Supreme Court term. what on page paper is it about so this.

case is about Herring fisherman in Cape. Main New Jersey I went to visit them and. among the people I talked to was a. fisherman named Bill brigh well I'm I'm. actually a first generation fisherman. I've been fishing for 40 years I. actually quit my union job to try. fishing and I've been fishing ever since. can I ask you how old you are. 64 I'm 63 so you're older than me not.

probably not. wiser and they told me that they have. long been living under a 1976 law that. requires them to take Federal observers. out with them on their fishing trips. they go out for a week at a time and. those observers gather data to prevent. over fishing what has the role of. government been over the years the role. of the government has slowly been. increasing.

which has been warranted in a lot of. situations because we do need quotas for. every fishery we know that and what they. told me was that they they like The. Observers they think The Observers are. valuable they're on board so to speak. with The. Observers so overall fisheries. management and the role of the. government has been a good thing overall. because we know without that most of us. would not be fishing today but come 2020.

the agency in charge of this program. called the national marine fisheries. service takes a turn and says not only. do you have to take The Observers out. with you but you have to pay for the. privilege H why partly because the. agency was low on funds partly because. they wanted to expand the program and. the fishermen had a problem with that. they had a practical problem they told. me give me a sentence of the actual.

dollars and cents how how much did they. want you to pay for the monitors how and. what percent you know at at the time but. this is pre pandemic price was $700 a. day because that is a significant cut of. their profits that's the monitor would. get $5,000 that's pretty close at 5% of. a good trip that a crew member would get. so he would get the same on a good trip. that a crew member would get but on a.

bad trip he still gets a five grand and. they get next to nothing right and they. have a kind of philosophical legal. problem with it too they say the 1976. law doesn't authorize these payments and. that the agency shouldn't be allowed to. interpret the law to say that it does so. what's what's your reaction to the idea. that you should not only host the. monitor but pay for the. monitor I don't think it's fair.

and I also now with everything that we. have going with the rising cost. especially after the. pandemic to tack that on to us that tax. is going to be very burdensome to a. business that's very burdened in the. beginning So Adam this feels like a. pretty small scale dispute over. basically who should pay for the. implementation of this government. regulation that there be monitors on. these boats yeah it barely feels like a. Supreme Court case right right it's a.

routine legal dispute but it has. embedded in it a huge question and. that's the question of who gets to. decide what this 1976 federal law means. or what any federal law means is it the. agency in charge of implementing it or. should it be a judge without giving any. particular kind of deference to the. agency and that takes us to a 1984.

Landmark Supreme Court case one of the. most cited most influential cases in our. history called Chevron versus natural. defense Resources. Council that case gave rise to a concept. called Chevron deference which is not. about deferring to Chevron the oil. company but about the precedent set out. in that case about who should get. Defence Chevron Defence says that if a.

statute passed by Congress is. ambiguous the agency gets to interpret. what it means so long as its. interpretation is reasonable and courts. have to defer to the agency's. interpretation that is judges who are. ordinarily in charge of saying what the. law means and what statutes mean have to. put the thumb on the scale in favor of. federal agencies expert agencies on what. Congress enacted statutes mean so under.

the Chevron Defence Doctrine these. fishermen don't really seem to have much. of a legal case here right the doctrine. says that if that 1976 law is in any way. unclear on the question of who pays for. these monitors a government agency is. going to make that call and a government. agency has made the call that the. fishermen pay so that's more or less. that that's right and when they sue a. federal appeals court says the statute's. ambiguous that means the agency gets the. side the agency has decided we judges.

are not going to do our own work in. figuring out what the correct legal. answer is we're going to defer to the. agency got it and as you say Michael. this case in itself is not super. important but this concept is woven. through American law and has done work. for decades to resolve cases on things. like protecting the environment. workplace safety Consumer Protection.

nuclear power almost everything you. could imagine from all of the many. federal. agencies the entire legal system is. rooted in this idea that in cases where. a statute is. ambiguous agencies rather than courts. are going to be kind of at the front. line in deciding what the law. means. [Music].

because the thinking goes they're the. experts they know their subject matter. areas and they should have a role in the. process of deciding what Congress meant. to do Congress of course can't. anticipate every development and the. thinking behind Chevron is that it has. at least implicitly delegated to. agencies the opportunity to fill in the. gaps and make statutes work on the.

ground it's very clear to me Adam how. this Doctrine benefits the executive. branch and the dozens of agencies within. it and all their experts because it. forces judges to defer to them however. if I'm in an industry being regulated by. these agencies and these government. workers like these fishermen I clearly. view this differently right business. groups especially are very hostile to. Chevron hostile to what they call the.

administrative State the power of. executive agencies generally and they. have been looking for some time now to. find the perfect vehicle to take down. the Chevron Doctrine to do away with it. for practical reasons they don't like. being regulated for philosophical. reasons they think judges should take. the leading role in saying what the law. is and these fishermen in New Jersey. along with another group in Rhode Island. are represented by well funded.

conservative groups with financial ties. to Charles kooch the conservative. billionaire and this case seems to be a. very likely vehicle to undo the key. precedent in this area of the law got it. so we should not be viewing this case as. simply the story of local fishermen who. don't want to pay for the monitors on. their boats who are counting up how many. fish they catch we should view it in the.

much broader landscape of an ongoing. conservative effort to dismantle. regulation and prevent the government. from playing the role that it does in. regulating the companies like the ones. that Charles KO runs yeah this case is. both small and easy to understand and. huge and a little complicated but. extremely consequential.

because if the fishermen win it will be. on the ground that Chevron difference. goes out the window and all of American. law based on the activities of countless. federal agencies becomes reshaped and. power is shifted from agencies to an. extent to Congress to a probably larger. extent to the courts and regulation. becomes harder to implement across the.

board in every imaginable Federal. setting. yeah we'll be right. [Music]. back So Adam how do these oral arguments.

in the case unfold so Wednesday morning. we'll hear argument first this morning. in case. 22219 the court hears arguments starting. with Roman Martinez a lawyer for the. fisherman Mr chief justice and may have. please the court for too long Chevron. has distorted the judicial process and. undermined statutory interpretation who. makes a couple of basic points article 3. empowers judges to say what the law is. it requires them to interpret Federal.

statutes using their best and. independent judgment Chevron undermines. that Duty it the separation of powers. gives the Judiciary in article 3 of The. Constitution the obligation to say what. the law is and that Chevron was wrong. from the start there's no reason to. think that Congress intends every. ambiguity and every agency statute to. give agencies an ongoing power to. interpret and reinterpret federal law in.

ways that override its best meaning and. can be overruled not withstanding the. usual rule that the Supreme Court should. not discard precedents unless they were. egregiously wrong and have proved. unworkable if we have the best view of. the statute we should win this case I. welcome the Court's. questions so Martinez's argument is that. the Chevron deference Doctrine is. egregiously wrong and should be.

discarded and that under it far too much. power to interpret regulations is being. automatically given to government. agencies rather than judges that's right. let me give you a few more examples. along the same lines Mr Martinez and. that almost immediately gets pushed back. from the liberal justices who do. everything they can to try to save the. doctrine and one of the things they do. which is what judges do is throw out.

hypothetical questions testing what the. world would look like if we didn't have. Chevron so I was thinking um what is the. next big piece of legislation on the. horizon and who knows don't have a. crystal ball but I'm going to say um uh. I'm going to guess that it's artificial. intelligence Justice Elena Kagan. imagines not a huge feet of imagination. that Congress May sometime. pass a law addressing artificial.

intelligence Congress knows that there. are going to be gaps because Congress. can hardly see a week in the future with. respect to the subject let alone a year. or a decade in the future and that law. would by Nature have to be General have. to contain ambiguities because it's such. a fast evolving part of Modern Life does. the Congress want this court to decide. those questions policy lated questions. of artificial intelligence I don't think.

Congress want and Congress would. probably. expect that she says an expert agency. would interpret it fill in the gaps make. it applicable make it useful and not. some random judge somewhere in the. country with no expertise at all and. what she's really getting at Adam is. that the virtue of a Shevon Doctrine is. that it ensures that subject matter. experts Within these agencies are going.

to take the Reign when Congress. inevitably writes that necessarily. ambiguous Rule and she's picking AI. because it's a perfect test case of the. most complicated area in the universe in. which you'd want that subject matter. expert to weigh in that's right and in. truth many statutes are necessarily. ambiguous and can't anticipate the. future but that doesn't answer the. question of who should decide under our.

constitutional system and what Roman. Martinez says is listen you can take. account of what the agency says but it's. the judge's job in the end to make the. decision without he would say abdicating. the judicial role to I'm going to put. words in his mouth an unelected. bureaucrat my point is it's really. convenient for some members of congress. not to have to tackle the hard questions. and to rely on their friends in the. executive branch to get them everything. they want also another lawyer Paul.

Clement representing the fisherman made. the point that Chevron also makes life. too easy for congress but ambiguity is. not our as a delegation and more often. what ambiguity is I don't have enough. votes in Congress to make it clear so. I'm going to leave it ambiguous and then. we'll give it to my friends in the. agency and they'll take it from here and. that that Congress is. incentivized to pass ambiguous laws when. it could pass more careful ones. and that Congress kind of likes that.

because it is easier and gets them in. less political trouble if they say. General things rather than specific. things and Congress should not kind of. delegate to the Executive Branch the. lawmaking function H it's an interesting. argument and it puts a whole lot of. confidence in members of the United. States Congress as a matter of political. Theory it makes a lot of sense as a. matter matter of political reality in.

2024 it's pretty hard to imagine that. this Congress is going to be able to. enact many sensible laws at all much. less intricate ones closely addressing. the major problems of our time General. preer Mr chief justice and may it please. the court and when the lawyer for the. government solicitor general Elizabeth. progger gets up defending the Chev on. Doctrine she says that undoing a system.

we've lived with for some 40 years would. result in chaos Congress agencies States. regulated parties and the American. public have all relied on Chevron and. the regulations upheld under it to make. important decisions that could be. upended by overruling that framework and. the court should not lightly make that. step when Chevron she says has served us. well and pre logger also points out that.

the court has heard cases like this. before at least in a related setting and. it is declined to overrule precedents. that would cause so much chaos the court. observed that it would be the rare. overruling that would introduce so much. instability into so many areas of the. law all in one blow overruling Chevron. would be an even greater and unwarranted. shock to the legal system I welcome the. Court's questions all right General uh.

section 7 and what's the response from. the justices that overturning this. Doctrine would basically create the. legal equivalent of an earthquake that. would kind of shatter the system well. one interesting response came from Chief. Justice John Roberts Council um you. began by saying Chevron is foundational. we get a lot of statutory. interpretations from uh agencies uh and. I don't know whether it was 14 or 16. years we haven't relied on Chevron uh.

over that time I I mean have we. overruled it in practice uh even if. we've who sort of said what's the big. deal we haven't cited Chevron in years. it's sort of dead to us. already and that's true and that's. because the court as we've often talked. about Michael has shifted to the right. and one of the projects of the. conservative legal movement they' placed. recent conservative justices on the. court has been hostility to the.

administrative State and to Chevron so. in a sense this is already happening at. the Supreme Court level and you can see. this from some sharp questions from one. of Donald Trump's appointees Justice. Brett Kavanaugh but the reality of how. this works is Chevron itself ushers in. shocks to the system every four or eight. years when a new Administration comes in. whether it's Communications law or. Securities Law or competition law or.

environmental law and goes from Pillar. To Post like Prof he says the idea that. Chevron is a force for stability is. exactly backwards that executive. agencies change their positions as. administrations change every four or. eight years he says you get a different. answer to the question of what does the. law. mean that is not stability and so I. think to hold up stability and Reliance. is a little tough given just watching.

how it operates every four years well. let me it feels like there could be some. truth to that what is the government. lawyers response to what Kavanagh is. claiming here preer responds that if. there's authentic ambiguity in the law. that Congress passed then Congress would. know that different presidential. administrations might have different. ways of thinking about it and she says. there's nothing inherently wrong with. that she says getting rid of Chevron. though would create a whole new level of.

instability but there are 800 district. court judges around the nation and I. think it's fair to say they will likely. have different takes about how to. ultimately fill the Gap in administering. the statute and that's if you let every. district court judge in the country. decide for him or herself what a given. regulation means that's going to give. rise to a kind of chaos to a kind of. Patchwork where people in Georgia are. subject to different regulations than. people in California mhm and that's not. a desirable result she says thank you.

your honors thank you Council the case. is submitted okay so Adam this is the. part of any oral arguments episode where. I need to ask you to kind of cut through. the two sides of the argument and the. liberal interrogations of the lawyers. and the conservative interrogations of. the lawyers and tell us with your. predictive eye how this case is likely. to be decided is the Chevron Doctrine. basically dead Chevron is either dead or.

will survive in a kind of zombified. hollowed out version where it doesn't do. very much work or it does work in a very. narrow band of cases but the short. answer is that this is probably the case. this term that overrules a major. precedent like affirmative action in the. last term like abortion in the previous. term the right side of the Court usually. has one big project and I think this is. the project for the current term that.

project being to overturn Decades of. deference to government agencies and. clear a path. for pretty sweeping deregulation in the. United States right so the conservative. legal movement has kind of social. aspects to it and abortion and roie Wade. was long a Target but Chevron is the. equivalent for that part of the. conservative legal movement that really.

hates what they call the administrative. State and taking down Chevron would be a. huge victory for them Adam there's. something distinct about this case if as. it turns out it's the latest victory for. the conservative movement I mean. overturning row was about discouraging. abortion which the conservative movement. up ending affirmative action. banned racial preferences which. conservatives View as unfair this case.

if conservatives win it is going to end. up giving a tremendous amount of power. to the Judiciary as you've explained and. if you know anything about the American. conservative movement you know that for. the longest time it has complained that. unelected judges especially they say. liberal judges already have far too much. power so there's a kind of irony to the. fact that this is a case that's going to. put even more power into the hands of.

Judges that's a good point and it may be. irony or it may be opportunism the right. was unhappy with liberal judges when. there were a lot of liberal judges and. when the court was reaching liberal. results now that the right controls the. Supreme Court and is very powerful the. lower courts it may take a different. View. it's also the case that the Supreme.

Court in. general likes to be the. decider it seems to decide every. consequential social issue in the land. and getting rid of Chevron among other. things increases judicial power which. the Supreme Court likes this Supreme. Court likes that's. [Music]. right. [Music]. well Adam thank you very much we.

appreciate it thank you. [Music]. Michael we'll be right. back here's what else you need to know. day on Thursday for the fifth time in. just a week the United States attacked. houthi military sites inside Yemen to.

stop what it said was an imminent attack. on ships in the Red Sea despite repeated. us attacks American officials say they. have damaged or destroyed only about 20. to 30% of the houthi offensive. capability suggesting that the group's. attacks are likely to. continue and Mr President we have good. news for America there will not be a. shutdown on Friday on Thursday Congress.

passed a lastminute short-term funding. bill that barely avoided a partial. government shutdown the bill which would. fund the government through March was. adopted over the strenuous opposition of. far-right Republicans who have demanded. deep cuts to spending and it marks the. third time this fiscal year that. Congress unable to pass a long-term. budget has extended spend ending on a. temporary.

basis today's episode was produced by. Will Reed Michael Simon Johnson and AA. chur it was edited by John Ketchum. contains original music by Dan Powell. and Marian Lozano and was engineered by. Chris Wood our theme music is by Jim. brunberg and Ben Lanser of. wonderly.

[Music]. that's it for the daily I'm Michael. Babar see you on. Monday.