August 14, 2024 • 23 mins
On June 28, 2024, the Supreme Court issued its 6-2 decision in Loper Bright Enterprises v. Raimondo and its 6-3 decision in Relentless Inc. v. Department of Commerce. These decisions overturning Chevron v. NRDC (1984) may notably change the nature of the administrative state and the role of judges in reviewing agency actions moving forward.
Join us as we will discuss and break down the decision and the potential future impacts of this sea change in administrative law.
Featuring:
Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
(Moderator) Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
Join us as we will discuss and break down the decision and the potential future impacts of this sea change in administrative law.
Featuring:
Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
(Moderator) Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
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
(00:23):
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
(00:45):
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.
(01:05):
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
(01:27):
things over to Christen to give us the background of
the case.
Speaker 2 (01:32):
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
(01:53):
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.
Speaker 3 (02:05):
Not available to cover that cost.
Speaker 2 (02:07):
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
(02:27):
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.
Speaker 3 (02:44):
Of the statute issue was clear. But if that statute
wasn't clear.
Speaker 2 (02:49):
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.
Speaker 3 (03:01):
Justice Jackson was.
Speaker 2 (03:02):
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
(03:23):
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.
Speaker 3 (03:35):
Instead, the Court remanded.
Speaker 2 (03:37):
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.
Speaker 3 (03:58):
The judicial rule.
Speaker 2 (04:00):
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
(04:21):
share their perspectives regarding these decisions. So Ron, why don't
you start us off?
Speaker 3 (04:26):
Please?
Speaker 4 (04:27):
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
(04:49):
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.
(05:12):
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,
(05:33):
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
(05:53):
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
(06:13):
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
(06:35):
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
(06:57):
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
(07:18):
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
(07:38):
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
(07:59):
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
(08:20):
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
(08:43):
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
(09:06):
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
(09:28):
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
(09:50):
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,
(10:14):
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
(10:36):
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
(10:58):
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.
Speaker 5 (11:19):
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.
Speaker 6 (11:30):
Stalia, showed no sign of changing his views on Chevron
before he passed away last year.
Speaker 3 (11:35):
So there was a lot. There was a lot of that.
Speaker 6 (11:38):
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
(11:58):
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
(12:19):
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,
(12:40):
and we filed up in Rhode.
Speaker 3 (12:44):
Island with relentless. They were in DC for Low for Bright.
Speaker 6 (12:49):
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.
Speaker 3 (13:11):
The first circuit, in.
Speaker 6 (13:13):
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.
Speaker 3 (13:22):
Found only with Chevron desperance, it's not clear. There's ambiguity.
Speaker 6 (13:26):
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.
Speaker 3 (13:46):
They didn't say.
Speaker 6 (13:46):
Whether clearly whether it was because it's clear or because
of ambiguity, but they invoked Chevron.
Speaker 3 (13:52):
And they invoked the steps. So I think they invoked Chevron.
Speaker 6 (13:56):
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.
Speaker 3 (14:07):
Expertise in the agency. You talk about a power graph.
Speaker 6 (14:12):
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
(14:34):
is a very powerful law.
Speaker 3 (14:36):
It says the Secretary may or, the Secretary.
Speaker 6 (14:38):
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
(15:00):
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
(15:24):
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
(15:46):
because it's not in the statue.
Speaker 3 (15:48):
So then what happened.
Speaker 6 (15:49):
You come forward twenty years, the agency decides, you know
what we have, Chevron, We're going to say that we
need more observers.
Speaker 3 (15:57):
So we're going to create these observers.
Speaker 6 (15:59):
We're going to make the industry contract with these observers.
Speaker 3 (16:03):
And pay them and pay them more.
Speaker 6 (16:06):
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
(16:26):
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.
Speaker 3 (16:35):
Area, that too was capped by the Congress three percent.
Speaker 6 (16:39):
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.
Speaker 3 (16:49):
Each of these and I think that's cap too. So
when Congress was looking at it, they capped it.
Speaker 6 (16:54):
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
(17:18):
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
(17:39):
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.
Speaker 3 (17:56):
One hundred and eighty degrees.
Speaker 6 (17:57):
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.
Speaker 3 (18:05):
I'm pretty sure.
Speaker 6 (18:07):
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
(18:27):
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
(18:48):
one hundred and eighty returns.
Speaker 3 (18:50):
I think so.
Speaker 6 (18:51):
The other aspect of this that cass Sunstein has pointed out.
Speaker 3 (18:55):
I don't want to grab.
Speaker 6 (18:56):
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
(19:17):
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.
(19:40):
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.
Speaker 3 (19:59):
If you do that will take another look.
Speaker 6 (20:01):
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.
Speaker 3 (20:12):
So we're very happy, you know, we go back down.
Speaker 6 (20:16):
We'll go back down to have this looked at without
Chevron and it's going to be interesting.
Speaker 3 (20:23):
It's going to be interesting what the courts do.
Speaker 6 (20:25):
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
(20:48):
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
(21:12):
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
(21:35):
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
(21:57):
administrative agency wants to do something that Congress itself at
not done in the statue.
Speaker 1 (22:03):
Thank you for listening to this episode of SCO Discast.
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power is essential to our constitution, and that it is
(22:24):
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(22:50):
org slash Multimedia.
Speaker 5 (22:57):
This has been a FEDSOC audio production
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
(00:23):
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
(00:45):
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.
(01:05):
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
(01:27):
things over to Christen to give us the background of
the case.
Speaker 2 (01:32):
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
(01:53):
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.
Speaker 3 (02:05):
Not available to cover that cost.
Speaker 2 (02:07):
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
(02:27):
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.
Speaker 3 (02:44):
Of the statute issue was clear. But if that statute
wasn't clear.
Speaker 2 (02:49):
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.
Speaker 3 (03:01):
Justice Jackson was.
Speaker 2 (03:02):
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
(03:23):
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.
Speaker 3 (03:35):
Instead, the Court remanded.
Speaker 2 (03:37):
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.
Speaker 3 (03:58):
The judicial rule.
Speaker 2 (04:00):
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
(04:21):
share their perspectives regarding these decisions. So Ron, why don't
you start us off?
Speaker 3 (04:26):
Please?
Speaker 4 (04:27):
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
(04:49):
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.
(05:12):
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,
(05:33):
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
(05:53):
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
(06:13):
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
(06:35):
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
(06:57):
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
(07:18):
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
(07:38):
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
(07:59):
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
(08:20):
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
(08:43):
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
(09:06):
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
(09:28):
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
(09:50):
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,
(10:14):
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
(10:36):
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
(10:58):
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.
Speaker 5 (11:19):
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.
Speaker 6 (11:30):
Stalia, showed no sign of changing his views on Chevron
before he passed away last year.
Speaker 3 (11:35):
So there was a lot. There was a lot of that.
Speaker 6 (11:38):
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
(11:58):
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
(12:19):
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,
(12:40):
and we filed up in Rhode.
Speaker 3 (12:44):
Island with relentless. They were in DC for Low for Bright.
Speaker 6 (12:49):
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.
Speaker 3 (13:11):
The first circuit, in.
Speaker 6 (13:13):
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.
Speaker 3 (13:22):
Found only with Chevron desperance, it's not clear. There's ambiguity.
Speaker 6 (13:26):
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.
Speaker 3 (13:46):
They didn't say.
Speaker 6 (13:46):
Whether clearly whether it was because it's clear or because
of ambiguity, but they invoked Chevron.
Speaker 3 (13:52):
And they invoked the steps. So I think they invoked Chevron.
Speaker 6 (13:56):
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.
Speaker 3 (14:07):
Expertise in the agency. You talk about a power graph.
Speaker 6 (14:12):
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
(14:34):
is a very powerful law.
Speaker 3 (14:36):
It says the Secretary may or, the Secretary.
Speaker 6 (14:38):
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
(15:00):
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
(15:24):
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
(15:46):
because it's not in the statue.
Speaker 3 (15:48):
So then what happened.
Speaker 6 (15:49):
You come forward twenty years, the agency decides, you know
what we have, Chevron, We're going to say that we
need more observers.
Speaker 3 (15:57):
So we're going to create these observers.
Speaker 6 (15:59):
We're going to make the industry contract with these observers.
Speaker 3 (16:03):
And pay them and pay them more.
Speaker 6 (16:06):
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
(16:26):
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.
Speaker 3 (16:35):
Area, that too was capped by the Congress three percent.
Speaker 6 (16:39):
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.
Speaker 3 (16:49):
Each of these and I think that's cap too. So
when Congress was looking at it, they capped it.
Speaker 6 (16:54):
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
(17:18):
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
(17:39):
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.
Speaker 3 (17:56):
One hundred and eighty degrees.
Speaker 6 (17:57):
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.
Speaker 3 (18:05):
I'm pretty sure.
Speaker 6 (18:07):
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
(18:27):
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
(18:48):
one hundred and eighty returns.
Speaker 3 (18:50):
I think so.
Speaker 6 (18:51):
The other aspect of this that cass Sunstein has pointed out.
Speaker 3 (18:55):
I don't want to grab.
Speaker 6 (18:56):
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
(19:17):
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.
(19:40):
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.
Speaker 3 (19:59):
If you do that will take another look.
Speaker 6 (20:01):
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.
Speaker 3 (20:12):
So we're very happy, you know, we go back down.
Speaker 6 (20:16):
We'll go back down to have this looked at without
Chevron and it's going to be interesting.
Speaker 3 (20:23):
It's going to be interesting what the courts do.
Speaker 6 (20:25):
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
(20:48):
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
(21:12):
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
(21:35):
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
(21:57):
administrative agency wants to do something that Congress itself at
not done in the statue.
Speaker 1 (22:03):
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
(22:24):
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
(22:50):
org slash Multimedia.
Speaker 5 (22:57):
This has been a FEDSOC audio production
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