Fishing baws take on the Deep State

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While you may not care about fisheries, you should care about Chevron deference, which gives too much power to unelected bureaucrats.

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The United States Supreme Court will hear oral arguments Wednesday in two companion cases that could put an end to our totalitarian administrative state: Relentless Inc. v. U.S. Dept. of Commerce and Loper Bright v. Raimondo. Here’s your lawsplainer to understand the cases, the legal doctrine at issue — Chevron deference — the oral argument, the punditry surrounding the cases, and the significance of what, on its surface, may appear to be narrow and nerdy issues of administrative law.

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Relentless and Loper Bright: the Facts


In both Relentless and Loper Bright, commercial fishing companies sued the U.S. Department of Commerce, challenging a federal administrative rule that requires businesses to pay the cost of government-mandated monitors who travel aboard their vessels during fishing expeditions. To understand how this administrative rule came about, one must move through the bowels of the federal bureaucracy, beginning first with Congress’s enactment of the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

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Congress Didn’t Authorize the Final Rule

The plaintiffs in Relentless and Loper Bright filed separate lawsuits against the secretary of commerce, arguing the MSA did not authorize the Department of Commerce to charge the fishing companies for the cost of observers. It’s important to understand that “[a]dministrative agencies are creatures of statute” and “accordingly possess only the authority that Congress has provided.” Thus, “an agency literally has no power to act … unless and until Congress confers power upon it.” In passing the MSA, Congress expressly provided that a fishery management plan may “require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting data necessary for the conservation and management of the fishery.” But the MSA was silent on whether the management plan could mandate commercial fishing companies to pay for the cost of the observers.

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Chevron to the Administrative State’s Rescue

The lower courts concluded the MSA was ambiguous concerning whether the Commerce Department could require the fishing companies to pay the cost of the observers. The courts, nonetheless, upheld the final rule by applying the legal doctrine of Chevron deference.

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Chevron Deference Is a Big Deal

The effects of Chevron deference cannot be overstated because deference often dictates outcome. And that outcome is whatever the unelected bureaucrats of the more than 430 federal agencies and other regulatory agencies say it is — so long as they sound reasonable.

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