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 hammernus On, behalf of the Faculty division of
the Federalist Society. We are here today to discuss Relentless Incorporated versus Department of Commerce and Lower Bright Enterprises versus Rimondo, which were both argued before the Supreme Court on January seventeenth, twenty twenty four. It is my honor to introduce our guests today, John J. Veccioni. John a senior litigation council at New Civil Liberties Alliance, and he's the council record for Relentless. And with that, I'd like to turn things over to our guests to summarize how the
he's got to the Supreme Court and to discuss the oral arguments. All right, thank you very much for that kind introduction, and I want to thank the Federal Society. This is always, I think useful for anyone who has an interest in the Supreme Court. These are always a good opportunity to ask questions which you wouldn't normally get. So we had two cases argued before the Supreme Court. Relentless versus Commerce, which was our case at New Civil Liberties,
was argued by Romance Roman Martinez of Lathanman Watkins. And then there was the Lower Bride case, which was brought by my old friends at cause of action and that emerged from the DC circuit, merged from the first circuit, and it was argued by Paul Klement. And so the way it worked, which is a little unusual, was that we went first and we had regular
argument. Then this Justice Jackson, who was recused because she had heard the oral argument of Eric Bollander cause of action in the DC circuit, and they normally recuse in those circumstances. So it was an eight member bench when when lober Bright came up, but the questions were continuous from one argument to the next. One interesting thing the Supreme Court did in this case was allow all the Amichi briefs in lower Bright to be read in relentless and so and I
think and I think they saved a lot of trees that way. So we had our own amechi as well. But any anybody who filed in Loper Bright, it's in our case. So that's the setup of how how the two cases worked. And now I just want to give a slight synopsis of what the cases were about and what the question presented was the court. I think most people tuning into this will have some idea, but just to put us
all on the same page. Loper Bright was filed in the District of Columbia and there their clients were fishermen primarily from New Jersey Cape May, New Jersey herring fishermen. And in the local Bright case, the district court had found that the text was clear that the agency was allowed to put at SE monitors. There are people go on the boat and count fish and make sure everything's
being all the rules are being followed, that sort of thing. They could put these ATC monitors on the herring boats and they could charge they could force each of those boats, which are all small businesses, to enter into contracts with ATC monitors who do nothing for the boats. They only report to the government information the government wants. These are not even though they're making more than fishermen in a lot of cases, they are not doing anything for the boat.
They're a burden to the boat. And the Magazine Stevens Act, which is that issue, was amended in nineteen ninety to say that observers. Each boat could be forced to carry observers, and these the course of determined these are a subset of observers kind of observer. But they didn't say who paid for it. But for twenty years, the federal government paid for observers. They appropriated money, and that appropriation paid for the observers. The agencies and
National Fisheries and Noah and Commerce kind of all work on this. They all determined that they wanted more of these monitors. So they made a ce monitors who have slightly less training than the former observers, and they were going to force the herring boats to carry them and pay for it. And it's nowhere in the statute. In fact, there are three places in the statute that has cost shifting to the to the industry, and it's not in the New
England herring fishery. So but the the DC District Court judge said, oh, yes, it's clear, and she's the only that's the only one. Because it went up to the d C Circuit and they said, no, this is ambiguous, and they went through all the Step one processes and they used all the candidates and that is ambiguous. So we're going to use Chevron, and under Chevron, surprise government wins. So that is the posture went up out of d C to the Supreme Court with the question should the Supreme
Court overrule or modify Chevron. There was a question that does Chevron apply if the statute is silent? But the and the Supreme Court took that question in the first circuit where we were relentless. The District Court also found it ambiguous. Chief Judge Smith went through it in an opinion with a lot of phish puns, and he went through the statute. He found it ambiguous. He did almost the exact same analysis as the DC Circuit did. He didn't have
he didn't have the benefit of that that hadn't happened yet. But it goes up to the first circuit. In the first circuit said well, under step one or step two, they didn't do any kind of They didn't do that. I don't think they did the analysis that the Supreme Court keeps saying in both these arguments, you're about to hear about that that you're supposed to do. But they said, yeah, go ahead and do that in the first circuit. So we petitioned for CIRT and because of how brilliant for CCHERA was,
they took our case as well. And I'm sure the fact that Justice Jackson was recused and low forer Bright was not as important as how brilliant that petition was. But in all seriousness, they wanted the opportunity to have a nine member bench, so they took the case. And so it gets the Supreme Court two cases, should Chevron continue or should it be overruled? And they denied taking any question either for Loper Bright or for us on any other
matter. We wanted relentless. I wanted the necessary and appropriate language of the Madison Stevenson Act to be I wanted them to say that that is not another license for the agencies to do whatever they want. They didn't take that. There are a lot of questions about that sort of thing. So that's how
the case, that's how the case has come. Are our clients are also herring fishermen, but they fish on freezer boats and they fish for things like the two kinds of squid and butterfish, so they're not just herring fishermen, and this regulation hit them, I think worse than anyone because because they're freezer boats they take out, they stay out at sea from ten to fourteen days rather than three or four days, so they've got these guys on their boat
for a longer period of time, and sometimes they're not even fishing for herring, but they've got their herring monitor board. So they're paying for this very expensive guy seven hundred and ten dollars a day out of revenues from some other
fish that that isn't monitored. So it was extremely burdensome for the client, and we were hit very bad by this regulation that is nowhere in the statue because the last thing I want to say about how it got here was is that when this was amended in nineteen nine, as far as I can tell, nobody opposed putting observers on the boats. There is no certainly my clients didn't. I haven't seen any of the local bride clients. Nobody said we
were not going to take observers. That's not what this is about. Twenty years later, the agency makes up this at sea monitors being paid by the fishermen, and it's nowhere in the statute. So the problem is you'd have no chance to oppose this law. So we get to the Supreme Court and it was a very very hot bench. I put in my notes. Thomas asked the first question, which is his first question, is we had a
constitutional argument. I think that we focused on neither party disagreed with the other party on any matter of law, but we were focused more on the Constitution rather than the APA, because there's lots of reason Chevron's back and our reasons were Article three judges say what the law is, not agencies, and also do process in that you're in litigation with a party that's telling the judge what the law is, and and that is the unfairness of that should be manifest
in our view. And so Thomas's first question was is any difference allowed under Article three? I think that's what he was getting at, and so he was looking ahead and a lot of these questions I'm gonna I'm gonna show are good just because everyone's asking what happens when we overrule Chevron? What comes next down the line? And I thought, as I listened to all those questions that even people who weren't given the game away were kind of given the game
away. I'm heartened by the fact that they wanted to know what happens in the absence of Chevron and all all the justices asked those questions. I'm pretty sure, but certainly Thomas did. Do we have to get rid of all all deference? And then I'll just go through the justices because they asked the same type of questions of Roman and our relentless as they did for Paul and Low for Bright but the other. Then Kagan came out of the gate.
And I put in my notes, Well, she came to fight because she she loves expertise, she loves the agencies having the ability to move this way and that, and she does not believe that some some legal questions are binary. And so she she peppered Roman with those questions. She later did Paul as well, And I think they showed that there really is a difference between law and policy and and but but Kagan was unshakable on that. Then you
will then Gordon as she's doing this. Gorsts jumped in and he played his hand open. He does not like Chevron. It's known since he was on the Circuit Courd he didn't like it. He's put it in there and yesterday was no exception. He explained. I think in the most poignant terms, and I think you'll be seeing a lot of this because it's true and because it's something that doesn't get said a lot, he said, I and other
appellate judges see that Chevron is for agency capture. If an industry has captured the agency, they like it. But in social security disability that disabled don't capture agencies. Veterans don't capture the agencies when they're trying to get the ones trying to get benefits, and immigrants certainly can't capture agencies. And all these people are routinely hurt by agency deferring to agencies or a position that is not the best reading of the law. And Gorsuch is very clear on it.
And I would add Fickerman or another one who don't control agencies. Judge Jackson very worried about judges making policy decisions. She thinks that there is a democratic need to have an elected branch make these decisions, and she is fearful that elective branches won't be making policy if you get rid of Chevron. We respond to that, We certainly don't believe that's the case, but that's what happened. Barrett and Alito. I'm going to use their questions together because they're kind
of interesting. Barrett, is, tell me what happens. What's the difference between law and policy? Was her first question, sort of riffing off Jackson. She wants to know where the lines are, and she wants to know, from her other questions, what's going to happen when Chevron's gone? And how big a deal is this? The chief also, how big a deal
is this? How often is it used? And both Raman and Paul just told the lower courts use it all the time, and they don't use it the way you people are saying about oh all is rigor, And I think that I think the fact that the first circuit had no rigor at all is a good fact for the side that wants to explain to the court that Chevron has failed below it's failed as a doctor. And so Alido went back to, well, why do we have Chevron? Why was it so great,
Why was it so important? And why if we get rid of it it will be okay. Now. Answer that question was, now the whole court is textless and originalists. You're not allowed to make up policy as you were in the sixties and seventies. The way I always put it is is that you know, judging in the sixties is seventy A lot of things came out bell bottoms, pet rocks that didn't stand the test at time. And I think that that type of judging that Chevron was meant to correct is out the
window now. And then side of my r wanted to know about Starry decisis both she and Kagan were very big on what happens to all these cases? What happens to all the cases that have relied on Chevron? Is it all a jump ball? Do we all have to do it again? And the
Chief was concerned about that too. The answer is no, there's statutory interpretations, and the Court is very strong that however a statute was defined by the Court, it's going to stick except under brand X. And I'll end with this aspect of it because I think I know there'll be questions and I can get to what all the other justices did through questions, but brand X came
up. And if those of you may know that brand X is a ruling which allows the agency to make one ruling on what the law is, what the law requires, and then a court to say rule on it and say if it's right or wrong, and then the agency then can make another ruling and the court has to follow their ruling. They can actually change a court
decision. And I was very close and it looked to me, you can't hear the justice, but it looked to me like sod of my arm turns to Thomas and they're having a I think it seems to me from the time of the questions that she was saying, here, I am defending your opinion because Thomas wrote it, and I think he was in, don't defend me. And Gorset gets in and they all start laughing. I mean it was it was a nice moment. But brand X got no love, not even
from the Solicitor General. So Siter General pre Legar was her normal tremendous advocate. She was hitting these things hard, but even on I don't think she gave a full court press for brand X. There was no love for that case. From anybody. So where does it stand. It stands where we think that it was a very favorable day. You don't know exactly what's going to happen. There are concerns, but I think it's going to be a big case, come they or June. Thank you for the summary of the
case in the oral arguments, John. The first question I have is whether a decision in favor of the fisherman potentially jeopardizes other federal regulatory programs that mandate the presence of on site regulators with provisions provided for them, such as federal meat inspection agents or air marshals. So that's this case is not about getting rid of observers. It's a matter of who pays for it. So nobody, neither the local right folks or we have ever opposed having monitors observers because
it's a government job. The government paid for it, except even in the magazine Stevenson Act. It has a fee based program. In the Northern Pacific eye some of you may watch the most Dangerous Catch, right, it's the most productive and profitable of fishery in the world up there. And Congress made the decision that those observers would be paid by a fee based mechanism. They put in a foreign fishermen because they're going to be gone, and Kegan pointed
this out. She says, they're going to leave, so those observers are put on those boats, and they have to contract those observers or have fees shifting. None of those observers are going to go. They're all going to be on the ships. They're all going to be looking at fish. There's another there's a thing called a lap where all the fishermen split the catch in a certain area. Those are also a fee based mechanism, and as Paul Clement pointed out, all of those have caps on how much they can charge
the fishermen because Congress was really looking at it. But all of them can go in same with air marshals if the statute says they're paid by the industry. That doesn't have a Chevron problem. The problem is when the agencies are trying to get away from congressional power, because in these cases they're getting away from the appropriation's power, getting away from the lawmaking powder. They are trying to escape congressional control, and that's not what we want. So all of
the regimes that have inspectors paid for by the government will still exist. And these the observers, like in the Magaiza Stephen Act in Alaska and Alaska Waters, they'll still have it as well. Congress said, So this doesn't put any of those regulations in danger. The next question I have is multi part. What would be the benefit of getting rid of Chevron? Would new cases be available to push back against agency decisions? And what are major industry areas
where you expect new litigation to follow if Chevron is overturned. So much of what's good about getting rid of Chevron will never see And here's what it is. The agencies, the bureaucrats themselves will not do so something like this. They won't go, Hey, how do we get around all the powers of Congress and what the words say, and how do we write a law that we want that we can't get through Congress and then just show a court that
it's a reasonable interpretation of those words. You're going to see a lot less freelancing by the agencies, by the bureaucrats because they know that they will have to make this argument to the court. The statute requires or allows this, not the statute doesn't say I can't do this. Right. So those incentives are going to mean that a lot of bad and oppressive administrative agency regulations are not going to be tried, and we won't see that. We won't know,
but I think it's a good thing that will happen. In litigation. Once again, the question is will not be the government will not be saying to you when you're in a suit with them, oh, we found ambiguity, and now our view has to be the law. Because we've found some ambiguity and we've convinced the court there's ambiguity. The question for judge should not be is this ambiguous? It should be what does this law say? And
so they'll go back to that. So I have stressed very strongly in my writings and my statements on this that Chevron makes every actor in our tripart system act badly. It makes Congress not write clear laws because they figure, oh, there's an ambiguous If my guy's in the White House, then I can get a law I could never get passed just by putting ambiguity and making an agency do it. Or if it's something I don't like, I can say,
hey, I didn't write that. So it gets rid of congressional responsibility. It makes the agency and an executive think they can do everything that they've got congressional and executive power, and that they can't be stopped by the citizens who are affected. And it makes judges lazy, so they don't do everything I have to do to determine what the law says. So what I think you'll get is better actions by every part of our tripart government if we get
rid of Chevron. The next question concerns Chevron, and sorry deciss Does Chevron itself receive story decisis respect? Why or why not? That's a great question. I believe that Chevron does not deserve story decisives effect, certainly not strong. Story decisis strong. Story decisis is its strongest in the statutory context.
If the Supreme Court has told you what a statute means, very unlikely to turn it in case I love and the reason I really think that all the Chevron based statutory interpretations are not going to be overturned is an international baseball which is case from the twenties where the Supreme Court, even in the twenties with Babe Ruth running around, they determined that base ball was a local activity and it wasn't subject to the antitrust laws, and nobody thinks that's right. Baseball
is a big business. They're all over the plot. Nobody thinks it right. But it went back fifty years later to the Supreme Court and Justice Stevens, who wrote Chevron wrote this whole pan to baseball and how it's emerged under this thing, and they didn't overturn it. Then it's never been overturned. They love statutory story decisives. This isn't that constitutional law. When they've made a real bad constitutional error, this court feels that they can overturn it.
And there's strong decisive people like Justice Kagan, and there's weaker like Justice Thomas, but they all think it has some effect. Here. This is neither a constitutional ruling, nor is it a statutory ruling. It's how the court interprets things, how they actually go about doing the law, and that is totally in their wheelhouse. And so I think that they've changed how they look at things anti trust law. Paul Clement brought up the fact that you don't
have implied causes of action anymore. They've done all this stuff without even mentioning story decisis. And I think Chevron's in that bucket. The next question I have is why won't people who lost previously under Chevron come back to the court if they are still experiencing harms. So they lost, there was a regulation put in, it got appeled under Chevron. Why won't they get it? Well, I have a number of reasons for that. First, I believe
those will be starry decisives. The ruling of the court on that regulation, whether it applies to that, whether the statute allows that, is going to be a story decisives. So there's going to be an impediment there. The other one is, look, we brought a case, a cause of action called the Gafel case about this exact same issue in the mackerel fishery and under the Maxison Stevenson Act, if you don't challenge a regulation thirty days after it's
promulgated, the statual limitations ran out. First Circuit told us statue limitations ran out. Well, no fisherman was bothered by this law because the agencies kept delaying it. They put it, they issued it, and then they said, oh, it's not going to apply. It's not going to go by until the statual limitations was gone many many years. So a lot of it. There'll be a lot of statual limitations, and there will be new regulations
that'll come out, and those will then be adjudicated without Chevron. So I think that there might be a couple of cases where they try to overturn something, but I think they'll be swiftly disabused of that. If the Court chooses to limit Chevron instead of fully overturning it, what would the limiting principle be? WHOA Let me think about that. So you know, from the last question, General's preligar was was arguing chaos to the court as you're saying,
it's going to be chaos, and I don't think it will be. But
now you've brought into question is if they don't get rid of Chevron. There was a lot of talk yesterday of kaiserizing Chevron, and the Kaiser case kept our difference, which is the difference the Court owes an agency about what its own regulations mean, and they Kaiser has one thing that comes to mind, and our difference is one thing that comes to mind that Chevron doesn't have, and which sort of dovetails into Keg and certainly side of my rs view,
and that's this you have to show agency expertise was involved. They extraducized it, and you got agency expertise. They could limit Chevron to only times when the agency has expertise. In this case, you know, the agency has no expertise. Who pays is a congressional question. That's what they do. That's what they argue about up there all. You know. Dirkson used to say, don't tax you, don't tax me, tax that fellow behind the tree. That the fact is, that's what they're arguing all the time.
Who pays? That's not something an agency has special knowledge of. They could do that. I think that would be not useful because then we'd be going, oh, is this expertise? That not expertise. I also think that the silence issue sort of dropped out. No one really asked about it. Both both advocates said that's the question they took. No one wanted to do that. So I'm hoping against kaiserzation, but I think many of the things they'd have to do. They have to do this line drawing, and the
question of what's law and what's policy was big. It would be a return to that. For our last question today, John, will the court overturn Chever on six to three. We'd love six three. But what they're going to say about Chevron right now, I do think that they're poised to get rid of the doctrine or vastly you know, change it. But both Barrett and the Chief keep their cards extremely close to the vest, so you're not even sure they're playing poker. So I don't I you know, I can't
predict those two. I think I'm very sure Justice Kagan likes Chevron the way it is. Justice Soto my R likes it the way it is. Justice Gorsicic is like Chevron. Delenda sked. And then I can't tell you exactly where the rest of them exactly are because Alito asked a lot of questions about why we had Chevron, showing that there were benefits to it. He didn't. He didn't He wasn't as hostile as Gorsic to the why Chevron us here.
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