Momentous Supreme Court cases sometimes arise from more pedestrian events. The justices will hear oral arguments for one such case on Wednesday. Loper Bright Enterprises v. Raimondo has to do with commercial fishing. A national law passed in 1976 requires federal observers to accompany fishing boats. These observers make sure those vessels and their crew comply with “fishery management plans,” which the fishermen are obligated to obey.
Starting in 2020, bureaucrats began reading the law as obligating the boats and their companies to foot the bill for the monitors, writing an agency regulation to that effect. This new reading can cost these fisherman thousands of dollars a week when many already operate on thin margins in a business on which their livelihood depends.
Lower courts upheld the agency’s reading, and thus the new financial burden, under what is known as the “Chevron Deference.” That judicial doctrine comes out of a 1984 Supreme Court case, Chevron USA v. Natural Resources Defense Council. That case said that when the text of a federal law is found to be ambiguous, courts should defer to agency interpretations of the law so long as that agency interpretation was “reasonable.”
Lawyers for the fishermen are seeking to overturn this precedent, with the Supreme Court expressing willingness to consider the proposition.
This attempt to overrule “Chevron” makes the case much bigger than a debate over a particular law, regulation, and their effect on one industry. Indeed, the case might prove a fundamental moment in the battle against the administrative state.
The Constitution delegates the exercise of the public’s political power to a national government. That government consists of three branches, each assigned a particular function and duties mostly related to that function. We call this system, which gives legislative functions to Congress, executive to the president, and judicial to the courts, by the name of separation of powers. Our founders saw this system as essential to orderly popular rule that also guarded against tyranny.
Our governments, state and national, currently operate in a very different manner. They give a significant portion of their political power to bureaucrats working in various governmental agencies, such as the Environmental Protection Agency. Though Congress passes laws, it cedes most concrete decision-making to these bureaucrats, who not only write the regulations but engage in enforcing them and adjudicating disputes about them. In other words, the same agency exercises legislative, executive, and judicial power.
This way of doing things clearly violates the constitutional separation of powers, undermining the benefits we receive from the founders’ wise structuring of government. It also dilutes our republican form of government. The people rule in republics, doing so through representatives they choose and can, when needed, reject. But these bureaucrats get hired, not elected. And they usually retain their jobs regardless of shifts in congressional majorities or presidential administrations. They have become an entrenched, elite class whose governance often ignores and even contradicts public opinion.
If the Supreme Court overturns “Chevron Deference,” it will demand a shift in the balance of power between the bureaucrats and the constitutional elements of the government. If courts do not defer to agency interpretations of law, then judges will grab back an important element of the judicial power the Constitution gives to them, not to agencies. They will interpret and apply the law as they should.
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Moreover, not deferring to agencies should make Congress take a bigger role in legislating. Our legislative branch should not pass off the hard policy choices but express the people’s will in laws that spell out all substantive policy and structural decisions. That change would return more power to the people through the enhanced action of their representatives.
While the oral arguments will take place on Wednesday, we likely won’t know the result until June. Here’s hoping the Supreme Court will take this chance to overturn “Chevron.” It would strike a major blow for republican government, for separation of powers, and for the Constitution.
Adam Carrington is an associate professor of politics at Hillsdale College.
