Is a ‘Coroner’s Certificate’ for Chevron Deference on the Supreme Court’s Docket?

The high court takes up the question of whether administrative agencies are owed deference by courts.

AP/Gene J. Puskar, file
A Chevron sign at a Bradenton, Florida, gas station, February 22, 2022. AP/Gene J. Puskar, file

The Supreme Court’s granting of certiorari in a case that centers on marine fishing regulations could lead to the slaying of the white whale of those who seek to run the administrative state ashore: the high court doctrine known as “Chevron deference,” after the case from 1984 where it found first articulation.  

The justices will hear that case, Loper Bright Enterprises v. Raimondo, with an ear to whether Chevron should be overruled as Roe v. Wade was, or, short of that, whether statutory silence amounts to the kind of ambiguity that triggers its protocol. 

The Legal Institute defines Chevron deference as ordaining that “when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.”

This means that when it comes to second guessing agency decisions, the Supreme Court tied its own hands and those of lower court judges across America. This deference is only extended to agency interpretations reached through formal proceedings with the force of law, not to informal rulings and opinions.  

The Sun spoke to a professor at Columbia Law School, Philip Hamburger, who has led the charge against judges genuflecting to administrative agencies. He notes, “I have long described Chevron as the living dead. The Supreme Court stopped relying on it years ago. But now we need a coroner’s certificate. That would put it (and us) out of its misery.” 

Mr. Hamburger adds that the “justices should forthrightly reject Chevron. It prevents them from saying what the law is, which is their duty. And it requires them to be biased between parties, which is forbidden by the due process of law.”

Against those — on and off the court — who worry that Chevron’s demise would throw American governance into disarray, Mr. Hamburger reassures: “There may be some consequences if Chevron is overruled,” but “nothing that can’t be fixed by Congress. The agencies never had a right to rely on a doctrine as corrupt as Chevron; in contrast, we have a right to rely on the Constitution.”

The facts of the case that could end Chevron deference are straightforward. Loper Bright Enterprise, a herring fishing company, was ordered by the National Marine Fisheries Service to allow an additional person on board its boats to serve as a monitor, tracking compliance with federal regulations. The monitor cost about $700 a day, and was eating into Loper’s profits at a rate of 20 percent. 

Loper challenges the lawfulness of the imposed monitor, arguing that the relevant statutes make no such demand, and that in imposing it the National Marine Fisheries Service is exceeding its authority. The government retorts that its requirement is permitted by Chevron, and the riders of the Court of Appeals for the District of Columbia Circuit agreed. When the case is heard, Justice Ketanji Brown Jackson will recuse herself, as she was involved with it below. 

Justice Jackson’s former colleague and the lone appellate dissenter, Justin Walker, footnotes an American literary classic, Ernest Hemingway’s “Old Man and the Sea,” for the proposition that “Fishing is a hard way to earn a living.”

The New York Sun

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