The National Marine Fisheries Service, part of the U.S. Department of Commerce, thinks the fishing industry should help pay for monitoring the Atlantic herring fishery — and it has implemented a regulation requiring such payment.
The authority for the regulation is a federal statute permitting fishery management plans to “require that one or more observers be carried on board a vessel […] for the purpose of collecting data necessary for the conservation and management of the fishery.” That sentence doesn’t say who should pay for the monitoring, and no other statutory language clearly requires or forbids industry to help pay. As often in such gap-filling situations, the Service made a judgment call that the best answer is for industry to pay for part of the monitoring. Regulated parties often bear the costs of complying with regulatory requirements, as the D.C. Circuit held in deferring to the Service’s conclusion.
Out of this herring pot (or, perhaps, trawler) of a case, the Supreme Court has now granted review on an issue larger than who pays for fishery monitoring. The case, Loper Bright Enterprises, Inc. v. Raimando, threatens to upend the regulatory state as we know it.
The underlying question is whether a nearly 40-year-old Supreme Court precedent, Chevron v. NRDC, should be overruled. Written by Justice John Paul Stevens, the unanimous Chevron opinion reconfirmed what had already been the case: When a statutory term is vague or ambiguous, fleshing out the statute is best understood as a matter of policy, best made by a political administrative agency and not by an apolitical court.
Much of the debate about Chevron has been over how to best interpret statutes. That debate often yields differences of judicial opinion; sometimes a court majority believes there is no clearly correct answer and thus defers to the relevant agency. When the agency’s policy choice is then implemented, separation of powers is well served.
A court has three options in such a situation. It can remand the matter to Congress, but such an order would face separation of powers concerns about courts dictating what Congress must do. It can resolve the matter itself, which, if traditional tools of statutory construction have run out, would involve implementing a judicial policy choice. Or, per the Chevron holding, it can defer to an agency’s reasonable reading, accepting that the reading represents the policy choice of the executive branch. Although Justice Clarence Thomas has argued that “Chevron compels judges to abdicate the judicial power without constitutional sanction,” this critique inaccurately describes the typical problem that Chevron addresses: that the judicial role — interpreting the law — has ended, and that the administrative role — making policy — has begun.
Thus, the real objection to Chevron is not that agencies are improperly displacing the courts’ judicial role to say what the law is. The real objection is what lies behind Chevron: significant delegations of power from Congress to administrative agencies, which then make policy choices when statutory terms are unclear.
As signaled in the 2019 case Gundy v. United States, the anti-regulatory wing of the court seems eager to reinvigorate the moribund “nondelegation doctrine,” whereby the court would invalidate federal statutes as too open-ended and as delegating excessive power to the executive branch. Many federal statutes are written with clear directives and others with more open-ended terms, meant to let expert administrative agencies, through proper process, work out the details. With this commonsense understanding, the court hasn’t used the nondelegation doctrine to invalidate a statute in nearly 90 years. If the court’s anti-regulatory wing has its day, and the doctrine returns, many important federal statutes may be invalidated.
The real fight in the fishery case is not over Chevron. If we allow Congress to delegate significant power to agencies, then we should allow agencies, not courts, to flesh out legislative policy when a statutory term is unclear. Rather than the faux fight over Chevron, let us have the real fight over the permissible scope of delegated power from Congress to agencies. This would force the anti-regulatory wing of the court to reveal its true colors as it seeks to cut back on the post New Deal administrative state.
Abner S. Greene teaches and writes about constitutional law at Fordham Law School. He clerked for Justice Stevens from 1987-1989.