This week, the U.S. Supreme Court will consider a request from commercial fisherman to defray the costs of a government-managed fish conservation program. The case presents the court’s conservative justices with another opportunity to limit the regulatory authority of federal agencies.
In the two cases up for argument on Wednesday, fishing businesses are arguing that the National Marine Fisheries Service was not authorized by Congress to create an industry-funded program to check for overfishing of herring off the coast of New England.
In a broader sense, the corporations have asked the court, which has a 6-3 conservative majority, to limit or reverse a 1984 rule known as “Chevron deference,” which requires judges to yield to federal agency interpretation of U.S. laws.
The commercial fishermen’s bid, backed by a wide array of corporate and conservative interest groups, is a component of the conservative movement known as the “war on the administrative state,” which aims to undermine the federal agency bureaucracy that carries out executive action, creates regulations, and interprets the law.
According to legal scholars Jonathan Gould of the University of California, Berkeley Law School and Gregory Elinson of Northern Illinois University, “Chevron can help either party, but overall Democrats have more to lose than Republicans from its demise.”
Chevron Amid Fire
The fishing companies, headed by Relentless Inc. in Rhode Island and Loper Bright Enterprises in New Jersey, are contesting lower court decisions that support the federal government. The government of Democratic President Joe Biden is defending the conservation initiative, which is managed by the National Marine Fisheries Service and was started in 2020 under Republican former President Donald Trump.
The relevant regulation required certain fishermen to pay for the at-sea services of U.S. government contractors while they monitored the catch, and to bring them aboard their vessels. The U.S. Commerce Department’s Fisheries Service published the regulations governing the fishing of New England herring.