Speaker 1: Welcome to scot Discast, a project of the Federalist Society
Speaker 1: for Law and Public Policy Studies. Our contributors join us
Speaker 1: from around the country to bring you expert commentary on
Speaker 1: US Supreme Court cases as they are argued and the
Speaker 1: decisions are issued. The Federalist Society takes no position on
Speaker 1: particular legal or public policy issues. All expressions are those
Speaker 1: of the speaker. Hello, and welcome to scot Discast. I'm
Speaker 1: your host, Kyle hammernis On behalf of the Faculty division
Speaker 1: of the Federalist Society. Today we have a moderated discussion
Speaker 1: on Relentless Incorporated versus Department of Commerce and Loperbright Enterprises
Speaker 1: versus Rimando, in which the Supreme Court issued a sixty
Speaker 1: three and sixty to two decision, respectively, on June twenty eighth,
Speaker 1: twenty twenty four. It is my honor to introduce our
Speaker 1: moderator and our guests today. Our moderator is Professor Kristin Hickman.
Speaker 1: Kristen is a distinguished mcnight University Professor and Harlan Albert
Speaker 1: Rogers Professor in Law at the University of Minnesota Law School.
Speaker 1: Our first guest is Professor Ronald M. Levin Ronald is
Speaker 1: the William R. Orthwine Distinguished Professor of Law at the
Speaker 1: Washington University in Saint Louis School of Law. Our second
Speaker 1: guest is John J. Veccioni. John is Senior Litigation Council
Speaker 1: at the New Civil Liberties Alliance. He's the council record
Speaker 1: for Relentless, and with that, I would like to turn
Speaker 1: things over to Christen to give us the background of
Speaker 1: the case.
Speaker 2: The Lower Bright and Relentless cases which we're here to
Speaker 2: talk about today involved a challenge to a National Marine
Speaker 2: Fishery Service interpretation of the Magnuson Stevens Fishery Conservation and
Speaker 2: Management Act. That statute establishes a system for developing fishery
Speaker 2: management plans that includes requiring government observers to be carried
Speaker 2: on board domestic fishing vessels. To ensure compliance with the plans,
Speaker 2: the agency adopted a rule requiring the fishermen themselves to
Speaker 2: pay for the observers if federal funding was.
Speaker 3: Not available to cover that cost.
Speaker 2: Unsurprisingly, phishing boat owners were not happy with that rule,
Speaker 2: and they challenged it in court, both the DC Circuit
Speaker 2: in Loberbright and the First Circuit and Relentless upheld the
Speaker 2: agency's rule as a reasonable interpretation of an ambiguous statute
Speaker 2: under Chevron's step two. The Supreme Court took the case
Speaker 2: expressly for the purpose of considering whether to overturn or
Speaker 2: clarify the deferential Chevrons standard of review. I think probably
Speaker 2: everyone is familiar with the Chevrons standard, which called on
Speaker 2: courts first to determine whether the meaning.
Speaker 3: Of the statute issue was clear. But if that statute
Speaker 3: wasn't clear.
Speaker 2: If it was ambiguous, then the Chevron's step two called
Speaker 2: on courts to defer to reasonable or permissible interpretations by
Speaker 2: the agency of the statue.
Speaker 3: Justice Jackson was.
Speaker 2: Recused from Lopobright but not from Relentless, and in his
Speaker 2: six ' to three decision, the Supreme Court did in
Speaker 2: fact overrule Chevron by name, holding that deference that the
Speaker 2: difference that Chevron requires cannot be squared with the Administrative
Speaker 2: Procedure Act because Chevron defies the APA's command that the
Speaker 2: Court is to decide all relevant questions of law and
Speaker 2: interpret statutory provisions. The Court did not resolve the challenge
Speaker 2: to the Fishery Service regulation in question.
Speaker 3: Instead, the Court remanded.
Speaker 2: The cases back to the circuits for reconsideration. Justice Thomas
Speaker 2: wrote a separate concurring opinion in which he reiterated his
Speaker 2: view that Chevron also violates violates separation of powers principles.
Speaker 2: Justice Gorsuch wrote a concurring opinion to discuss his views
Speaker 2: regarding starry decisives and common law understanding of.
Speaker 3: The judicial rule.
Speaker 2: Justice Kagan wrote the dissenting opinion, joined by Justice Sotomayor,
Speaker 2: and with respect to the Relentless case, Justice Jackson. So
Speaker 2: there's a lot to talk about in these opinions. I
Speaker 2: have my own thoughts that I can and will share
Speaker 2: as we go along. But first I want to turn
Speaker 2: the microphone over to Ron and then to John to
Speaker 2: share their perspectives regarding these decisions. So Ron, why don't
Speaker 2: you start us off?
Speaker 3: Please?
Speaker 4: All right? Thank you, Kristin. I'm grateful to the Federal
Speaker 4: Society for inviting me to be part of this well.
Speaker 4: The advent of Chevron in ninety eighty four was the
Speaker 4: combination of the long line of precedents in which the
Speaker 4: Court articulated a strong expectation the Court should give great
Speaker 4: way to administrative interpretations or language similar to that, and
Speaker 4: that expectation was just one factor in the interpretive equation,
Speaker 4: but it was an important element of the administrative common law.
Speaker 4: In the modern era, courts are more formalists. They don't
Speaker 4: like over administrative common law. So in Chevron that principle
Speaker 4: was reformulated as a presumption about what Congress would probably
Speaker 4: intend for courts to do when they encounter an ambiguous statute.
Speaker 4: I don't think that was a drastic departure from prior law,
Speaker 4: but just a reformulation. So what is this long standing law? Well,
Speaker 4: it's always been agreed that if a court finds a
Speaker 4: clear message in a statute, it should follow it. Chevron
Speaker 4: reaffirmed that point. But the important question has always been
Speaker 4: if Congress has not taken a clear stand it self,
Speaker 4: who should fill in the gap. Should it be the
Speaker 4: administrating agency or should it be the reviewing court of
Speaker 4: the dissent in Loberbright argued there were several good reasons
Speaker 4: to assume it. In this situation, Congress would generally want
Speaker 4: the agency to make that call. For one thing, an
Speaker 4: agency tends to be experienced with the subject matter of
Speaker 4: the appeal, which can be quite specialized or complex, and
Speaker 4: generalist judges usually don't have the same level of familiarity
Speaker 4: with the agency's challenges. And for another thing, an agency
Speaker 4: has a congressionally assigned responsibility to implement the program to
Speaker 4: achieve its goals, it needs flexibility to deal with emerging
Speaker 4: challenges that Congress may not have anticipated, and it's start
Speaker 4: to assume that Congress would want it to have that flexibility.
Speaker 4: And further more, as Chevron brought into the debate, agencies
Speaker 4: are politically accountable for their interpretations of ambiguous statutory interpretation.
Speaker 4: They answer to the President. They answered to the legislative
Speaker 4: branch through oversight carryings and the budget process and so forth,
Speaker 4: so indirectly they answer to the people. But unelected judges
Speaker 4: have no such accountability. They can be entirely out of
Speaker 4: touch with public sentiment. Now, I would argue, that's exactly
Speaker 4: what's happening in these days, and that may not be
Speaker 4: the kind of language that wins hearts and minds in
Speaker 4: a federal society event. But even if you don't agree
Speaker 4: with me about current events, the structure difference is clear. Now.
Speaker 4: At the same time, Chevron was always a presumption which
Speaker 4: could be rebutted, so that doctrine was refined over time
Speaker 4: to allow for significant judicial controls over agency action. Now,
Speaker 4: lovel Wright does not try to exclude those practical considerations
Speaker 4: from judicial review entirely, but suggests that reviewing courts can
Speaker 4: display and so called respect to administrative interpretations under the
Speaker 4: so called Skidmore test. Well. As our moderator's excellent scholarship
Speaker 4: has demonstrated, Skidmore has been applied in very different ways
Speaker 4: at different times by different judges, and Roberts seems to
Speaker 4: envision a very weak version of Skidmore in which a
Speaker 4: court has the option of showing respect to the agency's news,
Speaker 4: but there's no strong expectation that he should, as Chevron
Speaker 4: would have suggested. As I read the lower right opinion,
Speaker 4: if the judge says, in a given case, I don't
Speaker 4: respect the agency at all, and I never have, and
Speaker 4: so I won't give any way to its views, that
Speaker 4: would not be reversible. There. I think that's suggested a
Speaker 4: change the lower bride as rad I've given the Chevron
Speaker 4: provided a stable framework on which countless decisions have been
Speaker 4: predicated for four decades or so. What reasons does the
Speaker 4: court give for abandoning it? The Court relies on the
Speaker 4: language of the Administrative Procedure Act and I've done a
Speaker 4: fair amount of scholarship on that exact issue, and I
Speaker 4: consider the court's rationale. If I can use a technical term,
Speaker 4: speeches have not preposterous or since this is the case
Speaker 4: about fishing, it's kind of a red herring. The Act
Speaker 4: provides that a viewing court shall the sign relevant questions
Speaker 4: of law, but it doesn't say how to decide them.
Speaker 4: The Court reads into those words a prohibition on deference,
Speaker 4: but that reading was not supported by the congressional sponsors
Speaker 4: of the Act, no by the courts and the immediate
Speaker 4: regulars enactment. They knew very well that the Act was
Speaker 4: not intended to change the law of judicial difference, so
Speaker 4: they went on applying difference principles just as they had
Speaker 4: been doing before the Act passed. And nor was the
Speaker 4: lover Bride view shared by three generations of judges in
Speaker 4: the interviewing years, including leading judges and Leena Biddle, a
Speaker 4: bit to the right like Henry Friendly and William Rehnquist
Speaker 4: and answermin Scalia and Ray Randolph and countless others. So
Speaker 4: the data over interpretation of the court and now endorses
Speaker 4: never got traction until the rise of the anti government
Speaker 4: movement of about a dozen years ago, and so I
Speaker 4: view the APA argument the Court makes as more of
Speaker 4: an excuse than a serious justification. Another argument in the
Speaker 4: lower Bread opinion is that the Chauvren doctor became too
Speaker 4: complicated and loaded down with refinements. But I think Roberts
Speaker 4: has the argument backwards. Those distinctions were part of a
Speaker 4: very commendable, continuing effort to refine the doctrine and strike
Speaker 4: a balance between the judicial state of steers. But now
Speaker 4: lover Bright has thrown out that body of president, which
Speaker 4: is this rate of lawyers understood fairly well, and everything
Speaker 4: will be up for grams. In the coming years. We're
Speaker 4: going to see endless arguments about whether to apply strong shift,
Speaker 4: skid more, is weak skid more of something in between.
Speaker 4: It'll be very disruptive, I think. I think the real
Speaker 4: explanation for what's going on here is that it's part
Speaker 4: of a campaign by the Supreme Court to challenge the
Speaker 4: administrative state on a number of fronts. If you put
Speaker 4: together with the past terms of decisions in Jocracy and
Speaker 4: Ohio guest EPA, and the recent creation of the Major
Speaker 4: Questions doctrine, lober Bright also speaks reluctance and maybe refusal
Speaker 4: to share interpretive power with another branch of government. It's
Speaker 4: no wonder that some people are calling this decision of paragram.
Speaker 4: I might not choose that language myself, but I agree
Speaker 4: that it be speaks the majorities overconfidence in its own judgment.
Speaker 4: I'm pretty sure John's going to tell us in a
Speaker 4: few minutes that the decision restores the separation of powers.
Speaker 4: But to my mind, lover Bright will tend to undermine
Speaker 4: checks and balances and so birth the separation of powers.
Speaker 4: And these are radical moves that I would not call conservatives.
Speaker 5: So I'll leave it with that, John, go ahead, please,
Speaker 5: So I'll add to the professor's list as to judge Silverman,
Speaker 5: who is more than I know, unlike.
Speaker 6: Stalia, showed no sign of changing his views on Chevron
Speaker 6: before he passed away last year.
Speaker 3: So there was a lot. There was a lot of that.
Speaker 6: And now I should I have to change my federalist
Speaker 6: society bio because I'm also a counsel of record in
Speaker 6: Relentless and counsel of record for the most of the
Speaker 6: individual plane of su Murphy. So it's been a big
Speaker 6: term and I was in I happened to guess right,
Speaker 6: and I was in the courthouse on Friday morning to
Speaker 6: watch it come down, and I think I did not
Speaker 6: get the impression either there or upon reading the case
Speaker 6: that skidmore respect is as in as perilous condition. As
Speaker 6: the professor has remarked. I'm going to have to read
Speaker 6: it again because that's interesting to me. But here's my views,
Speaker 6: and I'll just say when I was at Cause of Action,
Speaker 6: we started the local Bright case, and Cause of Action
Speaker 6: decided not to do third party cases anymore. So when
Speaker 6: I went to NCLA, I did relentless. So I was
Speaker 6: involved in both of these from pretty much the inception,
Speaker 6: and we filed up in Rhode.
Speaker 3: Island with relentless. They were in DC for Low for Bright.
Speaker 6: One of the things that's interesting about this, and I
Speaker 6: think shows the weakness of Chevron, is if you want
Speaker 6: to talk about how different courts looked at it, the
Speaker 6: District Court in oprah Bright found the statute was clear
Speaker 6: and the government won because this was perfectly allowed under
Speaker 6: the statue without reference to Chevron.
Speaker 3: The first circuit, in.
Speaker 6: What I think is a classic Chevron I think, I
Speaker 6: excuse me. The d C circuit, I think wrote a
Speaker 6: very strong opinion on how you're supposed to do Chevron and.
Speaker 3: Found only with Chevron desperance, it's not clear. There's ambiguity.
Speaker 6: So the government wins. Of course, there was a strong
Speaker 6: descent which probably got this taken by the Supreme Court.
Speaker 6: Then in the first Circuit, Judge Smith, chief Judge of
Speaker 6: Rhode Island, he did almost the exact same thing as
Speaker 6: the d C Circuit did. But then it went up
Speaker 6: to the First Circuit, and the first Circuit wrote what
Speaker 6: I call a Mushi opinion.
Speaker 3: They didn't say.
Speaker 6: Whether clearly whether it was because it's clear or because
Speaker 6: of ambiguity, but they invoked Chevron.
Speaker 3: And they invoked the steps. So I think they invoked Chevron.
Speaker 6: And I obviously am thrilled with the result, and I
Speaker 6: am thrilled with the reasoning as well, because what this
Speaker 6: does is there is no.
Speaker 3: Expertise in the agency. You talk about a power graph.
Speaker 6: Congress refused in nineteen ninety in this case, the magazine
Speaker 6: Stevensonak was amended by Congress to add to make clear
Speaker 6: that observers could come on fishing boats to make sure
Speaker 6: you're catching the right amount of fish and the right
Speaker 6: kinds and the size. All the vari's laws that the
Speaker 6: magazine Stephens Snack gives the Secretary of Commerce, and it
Speaker 6: is a very powerful law.
Speaker 3: It says the Secretary may or, the Secretary.
Speaker 6: Musk like scores of times, so he has lots of power.
Speaker 6: But what he didn't like, what the agencies didn't like,
Speaker 6: is Congress did not use its funding power and the
Speaker 6: power of the purse in the way the agency wanted.
Speaker 6: They wanted more money for observers. Congress would not give
Speaker 6: them more money for observers. So what you had was
Speaker 6: an agency at odds with the chief funding organization of
Speaker 6: the United States, without which you should not be able
Speaker 6: to spend a penny, getting in a fight with Congress
Speaker 6: and saying, you know what we're going to do. We're
Speaker 6: going to charge the regulated for these observers. My clients
Speaker 6: and the lower bright, the clients of Cause of Action,
Speaker 6: had no chance to oppose this in before Congress, before
Speaker 6: their elected representatives, because when that amendment went in the
Speaker 6: nineteen nineties that the observers had to go on the boat,
Speaker 6: all the fishermen shrugged and said, yeah, I guess they
Speaker 6: have to. There was no opposition to it, none, not
Speaker 6: from any of the fishing organizations, not from any of
Speaker 6: the Congressmen who are very sensitive to these fishing issues,
Speaker 6: because no one thought it would cause this funding problem
Speaker 6: because it's not in the statue.
Speaker 3: So then what happened.
Speaker 6: You come forward twenty years, the agency decides, you know
Speaker 6: what we have, Chevron, We're going to say that we
Speaker 6: need more observers.
Speaker 3: So we're going to create these observers.
Speaker 6: We're going to make the industry contract with these observers.
Speaker 3: And pay them and pay them more.
Speaker 6: There are sections of the Maxis Stevenson Act that allow
Speaker 6: observers to be paid by industry in various means. One
Speaker 6: is up in the Northern Pacific, which if you watch
Speaker 6: the most dangerous catch, that's where they are. It's highly capitalized,
Speaker 6: the most profitable fishery in the world, and they allowed
Speaker 6: this something like this to happen, but they said, but
Speaker 6: it's capped. You can't no more than three percent. And
Speaker 6: the same with another section, which are laps where the
Speaker 6: fishermen split all the fish in an.
Speaker 3: Area, that too was capped by the Congress three percent.
Speaker 6: And then the foreign fisheries because they don't pay any
Speaker 6: taxes and they're using our resources. They also have an
Speaker 6: at a place where they have to pay, but.
Speaker 3: Each of these and I think that's cap too. So
Speaker 3: when Congress was looking at it, they capped it.
Speaker 6: They said what a reasonable rate was where they allowed
Speaker 6: it and they didn't allow it here. But because of Chevron,
Speaker 6: the agencies thought, well, we'll slip it in and there's
Speaker 6: nothing the fishermen can do because they're then going to
Speaker 6: have to be moving through Congress because we will give
Speaker 6: them a fade of complete So I think the power
Speaker 6: grab was on the administrative side, and I think it's
Speaker 6: easily demonstrated because who pays is not something that Congress
Speaker 6: can't figure out. Who pays is an er congressional question
Speaker 6: that the administrative agencies in this case had seized. That
Speaker 6: was our argument, and I think it prevailed. The other
Speaker 6: thing that's going on here that I don't think Local
Speaker 6: Bride gets rid of, which is interesting from a textualist
Speaker 6: and an originalist position, is they want to give the
Speaker 6: court seems to be very upset both at oral argument
Speaker 6: in the here of if you could, if the agency
Speaker 6: has a reasonable construction of a statute and what regulation
Speaker 6: can do they as long as it's reasonable, they can
Speaker 6: change the law.
Speaker 3: One hundred and eighty degrees.
Speaker 6: Every administration there seems to be very upset about this.
Speaker 6: I mean, Brand X isn't explicitly overruled, but Brand X
Speaker 6: is getting to them.
Speaker 3: I'm pretty sure.
Speaker 6: So what I think that the opinion does is when
Speaker 6: we're looking for the meaning of the regula of the
Speaker 6: statute and what regulations allows. If you're the administration that
Speaker 6: got that law passed and you start implementing regulations at
Speaker 6: that time, though, the interpretations at that time I think
Speaker 6: are going to be given some kind of weight, if
Speaker 6: not difference. They're going to look at it and say, well,
Speaker 6: they got it passed. They kind of knew what it means.
Speaker 6: We better have a good reason not to. So I
Speaker 6: did not see any step away from the original interpretations
Speaker 6: of statutes when they're first done. They do not like
Speaker 6: this back and forth without any Congressional input and making
Speaker 6: one hundred and eighty returns.
Speaker 3: I think so.
Speaker 6: The other aspect of this that cass Sunstein has pointed out.
Speaker 3: I don't want to grab.
Speaker 6: His glory because I had not thought of this when
Speaker 6: I first read it, But he notes that Roberts goes
Speaker 6: out of his way to say that Congress can allow
Speaker 6: certain kinds of deference or respect certain on certain issues
Speaker 6: of expertise. It's not clear what he means by that,
Speaker 6: but I'm sure that those with Professor Levin's views are
Speaker 6: going to try and run a truck through it. And
Speaker 6: because it is interesting, because if they'll go back to
Speaker 6: the statute and find where maybe it's there, if not
Speaker 6: in the APA, we at NCLA had argued to beat
Speaker 6: the band that this was unconstitutional and urged them to
Speaker 6: reach the constitutional question. They did not reach the constitutional question.
Speaker 6: They did this statutorily, which I think again is a
Speaker 6: humility and not a power graph. They have not told
Speaker 6: Congress you may not do this constitutionally, which I wish
Speaker 6: they had, but they've said if you, why don't you
Speaker 6: start looking at what you want these agencies to do
Speaker 6: and then you put in a statute what you want
Speaker 6: these agencies to do, and.
Speaker 3: If you do that will take another look.
Speaker 6: So I think is as Professor Eskridge sometimes talks about
Speaker 6: in his legislative an now's it's something of a chat
Speaker 6: between the branches on on this issue.
Speaker 3: So we're very happy, you know, we go back down.
Speaker 6: We'll go back down to have this looked at without
Speaker 6: Chevron and it's going to be interesting.
Speaker 3: It's going to be interesting what the courts do.
Speaker 6: Because, as I said, the DC District Court thought the
Speaker 6: law was clear, and Judge Smith thought, you know, without Chevron,
Speaker 6: I think he thought, I don't want to put words
Speaker 6: in his mouth. But my impression is without Chevron, you
Speaker 6: don't get this. So we may be back up. I
Speaker 6: do think that the anti government movement started in this
Speaker 6: in this aspect in seventeen eighty nine and not a
Speaker 6: few years ago. So I do think it is returned
Speaker 6: to those type of principles, and I do welcome it,
Speaker 6: but I don't But part of our differences may just
Speaker 6: be that I don't think that they're going to be
Speaker 6: They're not going to be hostile to what I'll call
Speaker 6: real expertise. When the Nuclear Regulatory Committee Commission says this
Speaker 6: many rockins are bad for people, I don't see the
Speaker 6: courts not giving that high skidboard respect. And similarly, if
Speaker 6: one is highly concerned about the fate of the Washington
Speaker 6: Western Grace squirrel, I think that once again, whatever science
Speaker 6: went into figuring out whether that is a distinct species
Speaker 6: or not. As Justice Kagan was concerned about that type
Speaker 6: of science, once again, there's going to have to be
Speaker 6: something on the other side. This idea that courts with
Speaker 6: all these liberal arts majors who took government and English
Speaker 6: and stuff are going to be saying, no, that's not
Speaker 6: how DNA works. Is I'm highly skeptical of. I think
Speaker 6: it's going to be more in this vein where the
Speaker 6: administrative agency wants to do something that Congress itself at
Speaker 6: not done in the statue.
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