Media interested in Supreme Court decisions


The Supreme Court has been releasing a flurry of decisions at the end of term this year. This is an annual occurrence, but it seems that the media is taking more of an interest in the court’s decisions than usual. Part of this is due to the fact that several decisions by the court have carried political implications and relate to presidential politics. Part of this is also the court’s willingness to be involved in politics in general which it has historically eschewed and left to the other branches of government.

Two jointly released decisions have garnered more attention this year than they would have likely earned in a non-presidential year. In the cases of Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce the Supreme Court curtailed the power of the executive branch and shifted authority back to Congress overruling the court’s 40-year-old precedent established in the case of Chevron v. Natural Resources Defense Council. Much of the media coverage I have read seems to accuse the court of favoring big business in these decisions over protection of the little guy. Careful reading of these decisions might show otherwise.

First, let’s take a look at the facts of these recent decisions. Some years ago the federal government, through the National Marine Fisheries Service, created a rule that required many fishing boats in the North Atlantic to carry an observer on board to make sure that the fishing boat was complying with various federal regulations which were primarily established to prevent overfishing and for other environmental reasons. The government went one step further and required these fishing boats to pay the salary of the government employee they were required to bring on board. The companies that brought this case owned two small fishing boats, and the cost of the federal observers’ salary on their boats amounted to about 20% of their gross income and nearly totally wiped out any profit made on many of the fishing trips taken by their boats. The federal regulation made their small business unprofitable, and when they looked into it further it did not appear that Congress had ever given authority to the Fisheries Service to require these small business to pay the salaries of government employees. So they sued, and they requested the regulation be stricken.

As most of us learned in elementary civics, in general the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. However, and particularly at the national level, the legislature (Congress) often passes broad legislation concerning particular areas like the environment or the stock market, and it gives executive agencies authority to pass specific regulations within the framework established by Congress that are enforceable as though Congress put those regulations into the law to begin with. That is what happened in this case.

Congress passed a law back in 1976 that granted very broad and general authority to the Marine Fisheries Service. Using this authority, the Fisheries Service created this regulation a few years ago. After the rule was created, these small businesses sued claiming the regulation went beyond the powers given to the Fisheries Service by Congress, and it has taken many years for these cases to work their way through the court system and eventually up to the Supreme Court.

Back in 1984, the large oil company Chevron made a similar argument in a case titled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. That case also made it all the way to the Supreme Court, and back then the court ruled that if the law passed by Congress was ambiguous as to whether or not the federal agency has the power to do whatever it was trying to do with its regulation, then the court will defer to the executive agency.

Not surprisingly, the governmental agency rarely agrees with any argument that says the agency doesn’t have the power to do the thing that it has already done, and consequently, this “Chevron Defense” has resulted in most federal regulations being upheld as within the power granted by Congress. This new ruling by the court overturns the ruling made in Chevron and says if the law passed by Congress is ambiguous, the tie goes to the citizen and the federal agency does not have the power to do whatever they were trying to do.

Supporters of the Chevron Defense say that Congress does not have the time, expertise or clairvoyance to legislate on every possible detailed aspect of health policy, workplace safety, social security, food and drug safety, land use, environmental policy, and all of the other areas of our lives that the federal government regulates. Supporters say that executive agencies have experts in their respective fields that understand these issues and they should be allowed free reign to craft regulations in these fields unless Congress specifically says they can’t. Opponents complain that the executive branch should not have the power to create laws, and giving unelected bureaucrats unchecked power creates a dangerous situation where the rights of ordinary citizens are subject to the will of federal agencies that are accountable to no one.

The conservative majority in the Supreme Court has now overturned the prior ruling in Chevron and federal agencies are no longer given any say in whether or not they have the power to do the things they are doing. It is up to Congress to make the law, and it is up to Congress to give the federal agencies power create regulations. If the law passed by Congress is not clear, then it will be up to the courts to interpret the law and determine whether or not the agency has the power to do whatever it is trying to do. That’s it. That’s the ruling.

The court hasn’t ruled that big business can now do whatever they want without federal regulation. The breathless hyperbole about the end of the regulatory state seems to be a bit of an overreaction. If Congress meant to give the Fisheries Service the power to require fishermen to pay the salary for federal observers, then Congress is free to pass a law that gives the agency this power. As Congress has not yet passed such a law, then the Fisheries Service is not allowed to simply create a regulation out of thin air and require small businesses to pay for government employees’ salaries.

John Judkins is a Greenfield attorney.

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