Welcome to scot Discast, a project of the Federalist Society for Law and Public
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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.
Thank you for listening to this episode of SCO Discast. SCO Discast is
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