Time for SCOTUS to 'Jettison' Chevron Doctrine, Say Loper Petitioners

A group of commercial fishing companies is urging the U.S. Supreme Court to do away with the Chevron doctrine, in a brief filed Monday in Loper Bright Enterprises v. Raimondo. Many observers consider SCOTUS likely to eliminate or severely limit Chevron deference (see 2306290063). The lead lawyer on the brief (docket 22-451) is Paul Clement, U.S. solicitor general under George W. Bush.

The case doesn’t raise issues of interest to the communications sector -- the fishing companies are challenging a federal rule requiring that industry to pay the costs of observers who monitor compliance with fishery management plans. But it is being closely watched because of the implications for the Chevron doctrine (see 2305050038).

“A six-Justice Court -- the bare minimum for a quorum,” petitioners argue, decided Chevron in 1984: “Ever since, judges, litigants, and scholars have struggled not only to apply Chevron, but to reconcile it with the Constitution, the Administrative Procedure Act (APA), and the historical record. This Court is no exception.” The current court “has spent years issuing decisions that sought to resolve the Chevron debate du jour, but those efforts generated only more debates and more confusion, leading many Justices to question the whole enterprise,” the brief argues. It notes that SCOTUS no longer cites Chevron “even when it would seem to govern.”

But the doctrine “remains on the books” and “administrative agencies continue to churn out regulations premised on aggressive, newfound readings of statutes, and lower courts continue to feel obligated to afford agencies ‘Chevron deference’ unless and until this Court explicitly says otherwise,” the brief said.

The National Marine Fisheries Service (NMFS) decided to require commercial fishing vessels to carry federal observers onboard to enforce agency regulations and pay the costs, even though Congress “expressly sanctioned such payments only in three narrow circumstances and capped the payment obligations for domestic vessels at 2-3% of the value of their hauls,” petitioners argue. But “seizing on the statute’s ‘silence’ and purported ‘ambiguity,’ NMFS declared that domestic vessels in the Atlantic herring fishery would have to cede upwards of 20% of their returns to pay observer salaries,” the brief said. The U.S. Court of Appeals for the D.C. Circuit upheld the rule, citing Chevron.

“That result is intolerable, and the Court should jettison Chevron altogether -- or at least narrow its scope,” petitioners said: “At a bare minimum, the Court should clarify that statutory silence does not trigger Chevron, least of all when the silence concerns the grant of a controversial power that Congress has explicitly but narrowly conferred elsewhere.”

The Atlantic Legal Foundation and the Pacific Legal Foundation filed amicus briefs in support of petitioners (see 2307140044 and 2307170063).

A very different Supreme Court decided Chevron in 1984. The doctrine requires a two-part test to be applied by the court, where appropriate. First, the court determines whether Congress has spoken directly to the precise issue at question, and second, "whether the agency's answer is based on a permissible construction of the statute." Justice John Paul Stevens wrote the 6-0 decision. Justices William Rehnquist, Sandra Day O'Connor and Thurgood Marshall didn’t participate in the decision.

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail,” Stevens wrote: “In such a case, federal judges -- who have no constituency -- have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.”