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This Case is No 'Red Herring' : How Fishermen are Set to Take Down the Administrative State

In January 2024, the Supreme Court of the United States will make two key decisions in their opinion for Loper Bright Enterprises v. Raimondo. The first: whether a reasonable interpretation of the Magnuson-Stevens Fishery Conservation and Management Act allows the National Marine Fisheries Service (NMFS) to require herring fishermen to pay the salary of an onboard safety officer. The second: whether or not to kill the administrative state.


The latter question calls into doubt the delicate balance of power stuck up between the branches of the U.S. government–namely, Congress and the Presidency–and the unwritten yet rigid tradition of executive agencies and their President-appointed leaders that make up the so-called ‘administrative state.’ These bureaucratic administrators stand as the de-facto custodian of most rules, regulations and standards that everyday citizens interact with. Congress empowers these agencies with specific aims and purviews, and from there, unelected officials write up the fine print of everything from carbon emissions standards to corn and wheat subsidy goals. These regulations undergo public comment periods, but are ultimately left up to bureaucratic discretion.


Within the context of Loper Bright, the Magnuson-Stevens Act empowers the NMFS to regulate domestic marine fisheries for the purposes of preventing overfishing, protecting native fish habitats and promoting the safety of human life at sea. The act provides that “any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, may [...] require that one or more observers be carried on board a vessel of the U.S engaged in fishing.” Loper Bright Enterprises and the three other plaintiffs–all of whom are family-owned fishing companies–argue that the Act does not provide the NMFS with the power to force their boats to carry an additional safety officer, and that the salary of such officers would significantly impact their already thin profit margins. In a petition to the Supreme Court, they argue “that kind of draconian financial burden is difficult for even the largest companies to bear, but it is especially crushing for small or family-owned businesses, whose futures are now in peril.”


The petitioners, backed by conservative legal juggernauts like the Federalist Society and the Cato Institute, ask the Court to consider the merits of the Chevron Deference doctrine to remedy this perceived injustice. Amici curiae briefs filed by these institutions paint a picture of the underdog small business, cruelly wiped out by unfair regulations from out-of-touch Washington bureaucrats. This narrative belies their true motivations: wiping out the Chevron deference to deconstruct the modern administrative state as we know it.


The Chevron Deference, a method of interpretation pioneered in 1984, instructs courts to allow agencies broad deference within their establishing statutes. As Justice John Paul Steven writes in his majority opinion for Chevron v. Natural Resources Defense Council, “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” While the Supreme Court has yet to hear oral arguments, the popular consensus is clear: the Court is ready to put the administrative state to bed. Justice Brett Kavanaugh has already written extensively about his desire to overturn the decision in Chevron, and his five conservative colleagues are expected to follow suit.


Overturning Chevron has massive implications for the balance of power between the branches. Congress–who has proven in the past week that cooperation, or even efficiency, is no longer a part of their job description–will have to be more specific and technical in their legislative scope. The President will have less say over the regulations passed under his tenure. Bureaucrats will have to tread even more lightly when attempting to achieve their aims. There is one clear winner, however, from this decision: the Supreme Court. Without a precedent of deferring to true experts in their respective fields, the (conservative supermajority) Supreme Court will be empowered with the final say in all bureaucratic statutory questions. As the Chamber of Commerce points out in its own brief, the Chevron Deference is “rooted in respect for the separation of powers.” Undoing that deference threatens to throw the balance of power into melee, with nine Justices–all of whom are serving life terms–as the clear winners.

Given the tanking popularity of the Supreme Court following a slew of decisive decisions that include revoking abortion rights and further limiting states’ abilities to implement gun safety legislation, it seemed that the 2023-2024 term was a good time to keep the Justices’ profiles low. These nine Justices, however, seem destined for the spotlight. Accusations of corruption by Associate Justices Clarence Thomas and Samuel Alito have only amplified over the past month. Alito’s refusal to recuse himself from an upcoming case despite his conflicts of interest has caused uproar from legal ethics scholars, fellow federal judges, and even a few Senators. The choice to take up this case, during this term, may seem baffling at first: it promises nothing but trouble for the Supreme Court’s reputation. Nevertheless, they soldier on in pursuit of power. Anything for that herring, right?

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