Welcome to scot Discast, a project of the Federalist Society for Law and Public Policy Studies. Our contributors join us from around the country to bring you expert commentary on US Supreme Court cases as they are argued and the decisions are issued. The Federalist Society takes no position on particular legal or public policy issues. All expressions are those of the speaker. Hello, and welcome to scot Discast. I'm your host, Kyle hammernis On behalf of the Faculty division
of the Federalist Society. Today we have a moderated discussion on Relentless Incorporated versus Department of Commerce and Loperbright Enterprises versus Rimando, in which the Supreme Court issued a sixty three and sixty to two decision, respectively, on June twenty eighth, twenty twenty four. It is my honor to introduce our moderator and our guests today. Our moderator is Professor Kristin Hickman.
Kristen is a distinguished mcnight University Professor and Harlan Albert Rogers Professor in Law at the University of Minnesota Law School. Our first guest is Professor Ronald M. Levin Ronald is the William R. Orthwine Distinguished Professor of Law at the Washington University in Saint Louis School of Law. Our second guest is John J. Veccioni. John is Senior Litigation Council
at the New Civil Liberties Alliance. He's the council record for Relentless, and with that, I would like to turn things over to Christen to give us the background of the case.
The Lower Bright and Relentless cases which we're here to talk about today involved a challenge to a National Marine Fishery Service interpretation of the Magnuson Stevens Fishery Conservation and Management Act. That statute establishes a system for developing fishery management plans that includes requiring government observers to be carried
on board domestic fishing vessels. To ensure compliance with the plans, the agency adopted a rule requiring the fishermen themselves to pay for the observers if federal funding was.
Not available to cover that cost.
Unsurprisingly, phishing boat owners were not happy with that rule, and they challenged it in court, both the DC Circuit in Loberbright and the First Circuit and Relentless upheld the agency's rule as a reasonable interpretation of an ambiguous statute under Chevron's step two. The Supreme Court took the case expressly for the purpose of considering whether to overturn or
clarify the deferential Chevrons standard of review. I think probably everyone is familiar with the Chevrons standard, which called on courts first to determine whether the meaning.
Of the statute issue was clear. But if that statute wasn't clear.
If it was ambiguous, then the Chevron's step two called on courts to defer to reasonable or permissible interpretations by the agency of the statue.
Justice Jackson was.
Recused from Lopobright but not from Relentless, and in his six ' to three decision, the Supreme Court did in fact overrule Chevron by name, holding that deference that the difference that Chevron requires cannot be squared with the Administrative Procedure Act because Chevron defies the APA's command that the Court is to decide all relevant questions of law and interpret statutory provisions. The Court did not resolve the challenge to the Fishery Service regulation in question.
Instead, the Court remanded.
The cases back to the circuits for reconsideration. Justice Thomas wrote a separate concurring opinion in which he reiterated his view that Chevron also violates violates separation of powers principles. Justice Gorsuch wrote a concurring opinion to discuss his views regarding starry decisives and common law understanding of.
The judicial rule.
Justice Kagan wrote the dissenting opinion, joined by Justice Sotomayor, and with respect to the Relentless case, Justice Jackson. So there's a lot to talk about in these opinions. I have my own thoughts that I can and will share as we go along. But first I want to turn the microphone over to Ron and then to John to share their perspectives regarding these decisions. So Ron, why don't you start us off?
Please?
All right? Thank you, Kristin. I'm grateful to the Federal Society for inviting me to be part of this well. The advent of Chevron in ninety eighty four was the combination of the long line of precedents in which the Court articulated a strong expectation the Court should give great way to administrative interpretations or language similar to that, and that expectation was just one factor in the interpretive equation, but it was an important element of the administrative common law.
In the modern era, courts are more formalists. They don't like over administrative common law. So in Chevron that principle was reformulated as a presumption about what Congress would probably intend for courts to do when they encounter an ambiguous statute. I don't think that was a drastic departure from prior law, but just a reformulation. So what is this long standing law? Well, it's always been agreed that if a court finds a clear message in a statute, it should follow it. Chevron
reaffirmed that point. But the important question has always been if Congress has not taken a clear stand it self, who should fill in the gap. Should it be the administrating agency or should it be the reviewing court of the dissent in Loberbright argued there were several good reasons to assume it. In this situation, Congress would generally want
the agency to make that call. For one thing, an agency tends to be experienced with the subject matter of the appeal, which can be quite specialized or complex, and generalist judges usually don't have the same level of familiarity
with the agency's challenges. And for another thing, an agency has a congressionally assigned responsibility to implement the program to achieve its goals, it needs flexibility to deal with emerging challenges that Congress may not have anticipated, and it's start to assume that Congress would want it to have that flexibility. And further more, as Chevron brought into the debate, agencies are politically accountable for their interpretations of ambiguous statutory interpretation.
They answer to the President. They answered to the legislative branch through oversight carryings and the budget process and so forth, so indirectly they answer to the people. But unelected judges have no such accountability. They can be entirely out of touch with public sentiment. Now, I would argue, that's exactly what's happening in these days, and that may not be the kind of language that wins hearts and minds in a federal society event. But even if you don't agree
with me about current events, the structure difference is clear. Now. At the same time, Chevron was always a presumption which could be rebutted, so that doctrine was refined over time to allow for significant judicial controls over agency action. Now, lovel Wright does not try to exclude those practical considerations from judicial review entirely, but suggests that reviewing courts can display and so called respect to administrative interpretations under the
so called Skidmore test. Well. As our moderator's excellent scholarship has demonstrated, Skidmore has been applied in very different ways at different times by different judges, and Roberts seems to envision a very weak version of Skidmore in which a court has the option of showing respect to the agency's news, but there's no strong expectation that he should, as Chevron
would have suggested. As I read the lower right opinion, if the judge says, in a given case, I don't respect the agency at all, and I never have, and so I won't give any way to its views, that would not be reversible. There. I think that's suggested a change the lower bride as rad I've given the Chevron provided a stable framework on which countless decisions have been predicated for four decades or so. What reasons does the
court give for abandoning it? The Court relies on the language of the Administrative Procedure Act and I've done a fair amount of scholarship on that exact issue, and I consider the court's rationale. If I can use a technical term, speeches have not preposterous or since this is the case about fishing, it's kind of a red herring. The Act provides that a viewing court shall the sign relevant questions of law, but it doesn't say how to decide them.
The Court reads into those words a prohibition on deference, but that reading was not supported by the congressional sponsors of the Act, no by the courts and the immediate regulars enactment. They knew very well that the Act was not intended to change the law of judicial difference, so they went on applying difference principles just as they had
been doing before the Act passed. And nor was the lover Bride view shared by three generations of judges in the interviewing years, including leading judges and Leena Biddle, a bit to the right like Henry Friendly and William Rehnquist
and answermin Scalia and Ray Randolph and countless others. So the data over interpretation of the court and now endorses never got traction until the rise of the anti government movement of about a dozen years ago, and so I view the APA argument the Court makes as more of an excuse than a serious justification. Another argument in the lower Bread opinion is that the Chauvren doctor became too complicated and loaded down with refinements. But I think Roberts
has the argument backwards. Those distinctions were part of a very commendable, continuing effort to refine the doctrine and strike a balance between the judicial state of steers. But now lover Bright has thrown out that body of president, which is this rate of lawyers understood fairly well, and everything will be up for grams. In the coming years. We're going to see endless arguments about whether to apply strong shift, skid more, is weak skid more of something in between.
It'll be very disruptive, I think. I think the real explanation for what's going on here is that it's part of a campaign by the Supreme Court to challenge the administrative state on a number of fronts. If you put together with the past terms of decisions in Jocracy and Ohio guest EPA, and the recent creation of the Major Questions doctrine, lober Bright also speaks reluctance and maybe refusal
to share interpretive power with another branch of government. It's no wonder that some people are calling this decision of paragram. I might not choose that language myself, but I agree that it be speaks the majorities overconfidence in its own judgment. I'm pretty sure John's going to tell us in a few minutes that the decision restores the separation of powers. But to my mind, lover Bright will tend to undermine checks and balances and so birth the separation of powers.
And these are radical moves that I would not call conservatives.
So I'll leave it with that, John, go ahead, please, So I'll add to the professor's list as to judge Silverman, who is more than I know, unlike.
Stalia, showed no sign of changing his views on Chevron before he passed away last year.
So there was a lot. There was a lot of that.
And now I should I have to change my federalist society bio because I'm also a counsel of record in Relentless and counsel of record for the most of the individual plane of su Murphy. So it's been a big term and I was in I happened to guess right, and I was in the courthouse on Friday morning to watch it come down, and I think I did not get the impression either there or upon reading the case that skidmore respect is as in as perilous condition. As
the professor has remarked. I'm going to have to read it again because that's interesting to me. But here's my views, and I'll just say when I was at Cause of Action, we started the local Bright case, and Cause of Action decided not to do third party cases anymore. So when I went to NCLA, I did relentless. So I was involved in both of these from pretty much the inception, and we filed up in Rhode.
Island with relentless. They were in DC for Low for Bright.
One of the things that's interesting about this, and I think shows the weakness of Chevron, is if you want to talk about how different courts looked at it, the District Court in oprah Bright found the statute was clear and the government won because this was perfectly allowed under the statue without reference to Chevron.
The first circuit, in.
What I think is a classic Chevron I think, I excuse me. The d C circuit, I think wrote a very strong opinion on how you're supposed to do Chevron and.
Found only with Chevron desperance, it's not clear. There's ambiguity.
So the government wins. Of course, there was a strong descent which probably got this taken by the Supreme Court. Then in the first Circuit, Judge Smith, chief Judge of Rhode Island, he did almost the exact same thing as the d C Circuit did. But then it went up to the First Circuit, and the first Circuit wrote what I call a Mushi opinion.
They didn't say.
Whether clearly whether it was because it's clear or because of ambiguity, but they invoked Chevron.
And they invoked the steps. So I think they invoked Chevron.
And I obviously am thrilled with the result, and I am thrilled with the reasoning as well, because what this does is there is no.
Expertise in the agency. You talk about a power graph.
Congress refused in nineteen ninety in this case, the magazine Stevensonak was amended by Congress to add to make clear that observers could come on fishing boats to make sure you're catching the right amount of fish and the right kinds and the size. All the vari's laws that the magazine Stephens Snack gives the Secretary of Commerce, and it is a very powerful law.
It says the Secretary may or, the Secretary.
Musk like scores of times, so he has lots of power. But what he didn't like, what the agencies didn't like, is Congress did not use its funding power and the power of the purse in the way the agency wanted. They wanted more money for observers. Congress would not give them more money for observers. So what you had was an agency at odds with the chief funding organization of the United States, without which you should not be able to spend a penny, getting in a fight with Congress
and saying, you know what we're going to do. We're going to charge the regulated for these observers. My clients and the lower bright, the clients of Cause of Action, had no chance to oppose this in before Congress, before their elected representatives, because when that amendment went in the nineteen nineties that the observers had to go on the boat, all the fishermen shrugged and said, yeah, I guess they
have to. There was no opposition to it, none, not from any of the fishing organizations, not from any of the Congressmen who are very sensitive to these fishing issues, because no one thought it would cause this funding problem because it's not in the statue.
So then what happened.
You come forward twenty years, the agency decides, you know what we have, Chevron, We're going to say that we need more observers.
So we're going to create these observers.
We're going to make the industry contract with these observers.
And pay them and pay them more.
There are sections of the Maxis Stevenson Act that allow observers to be paid by industry in various means. One is up in the Northern Pacific, which if you watch the most dangerous catch, that's where they are. It's highly capitalized, the most profitable fishery in the world, and they allowed this something like this to happen, but they said, but it's capped. You can't no more than three percent. And the same with another section, which are laps where the fishermen split all the fish in an.
Area, that too was capped by the Congress three percent.
And then the foreign fisheries because they don't pay any taxes and they're using our resources. They also have an at a place where they have to pay, but.
Each of these and I think that's cap too. So when Congress was looking at it, they capped it.
They said what a reasonable rate was where they allowed it and they didn't allow it here. But because of Chevron, the agencies thought, well, we'll slip it in and there's nothing the fishermen can do because they're then going to have to be moving through Congress because we will give them a fade of complete So I think the power grab was on the administrative side, and I think it's easily demonstrated because who pays is not something that Congress
can't figure out. Who pays is an er congressional question that the administrative agencies in this case had seized. That
was our argument, and I think it prevailed. The other thing that's going on here that I don't think Local Bride gets rid of, which is interesting from a textualist and an originalist position, is they want to give the court seems to be very upset both at oral argument in the here of if you could, if the agency has a reasonable construction of a statute and what regulation can do they as long as it's reasonable, they can change the law.
One hundred and eighty degrees.
Every administration there seems to be very upset about this. I mean, Brand X isn't explicitly overruled, but Brand X is getting to them.
I'm pretty sure.
So what I think that the opinion does is when we're looking for the meaning of the regula of the statute and what regulations allows. If you're the administration that got that law passed and you start implementing regulations at that time, though, the interpretations at that time I think are going to be given some kind of weight, if not difference. They're going to look at it and say, well, they got it passed. They kind of knew what it means.
We better have a good reason not to. So I did not see any step away from the original interpretations of statutes when they're first done. They do not like this back and forth without any Congressional input and making one hundred and eighty returns.
I think so.
The other aspect of this that cass Sunstein has pointed out.
I don't want to grab.
His glory because I had not thought of this when I first read it, But he notes that Roberts goes out of his way to say that Congress can allow certain kinds of deference or respect certain on certain issues of expertise. It's not clear what he means by that, but I'm sure that those with Professor Levin's views are
going to try and run a truck through it. And because it is interesting, because if they'll go back to the statute and find where maybe it's there, if not in the APA, we at NCLA had argued to beat the band that this was unconstitutional and urged them to reach the constitutional question. They did not reach the constitutional question. They did this statutorily, which I think again is a
humility and not a power graph. They have not told Congress you may not do this constitutionally, which I wish they had, but they've said if you, why don't you start looking at what you want these agencies to do and then you put in a statute what you want these agencies to do, and.
If you do that will take another look.
So I think is as Professor Eskridge sometimes talks about in his legislative an now's it's something of a chat between the branches on on this issue.
So we're very happy, you know, we go back down.
We'll go back down to have this looked at without Chevron and it's going to be interesting.
It's going to be interesting what the courts do.
Because, as I said, the DC District Court thought the law was clear, and Judge Smith thought, you know, without Chevron, I think he thought, I don't want to put words in his mouth. But my impression is without Chevron, you don't get this. So we may be back up. I do think that the anti government movement started in this in this aspect in seventeen eighty nine and not a
few years ago. So I do think it is returned to those type of principles, and I do welcome it, but I don't But part of our differences may just be that I don't think that they're going to be They're not going to be hostile to what I'll call real expertise. When the Nuclear Regulatory Committee Commission says this many rockins are bad for people, I don't see the
courts not giving that high skidboard respect. And similarly, if one is highly concerned about the fate of the Washington Western Grace squirrel, I think that once again, whatever science went into figuring out whether that is a distinct species or not. As Justice Kagan was concerned about that type of science, once again, there's going to have to be
something on the other side. This idea that courts with all these liberal arts majors who took government and English and stuff are going to be saying, no, that's not how DNA works. Is I'm highly skeptical of. I think it's going to be more in this vein where the administrative agency wants to do something that Congress itself at not done in the statue.
Thank you for listening to this episode of SCO Discast. SCO Discast is a project of the Federalist Society, a not for profit educational organization of conservative and libertarian law students, law professors, and lawyers, founded upon the principles that the state exists to preserve freedom, that the separation of governmental power is essential to our constitution, and that it is emphatically the province and duty of the judiciary to say
what the law is, not what it should be. Don't forget to subscribe to our podcast series, including SCO Discasts and Practice Group podcasts, on iTunes or Google Play. For an archive of past podcasts, as well as audio and video of past Federalist Society events, please visit our website at FEDSOC dot org slash Multimedia that's fed SOOC dot org slash Multimedia.
This has been a FEDSOC audio production