Supreme Court: Chevron Deference

[Matthew]

…and all this because some NJ herring fishermen didn’t want to bear the cost of monitors that report to NOAA to ensure fishing regs are followed. NOAA had been paying the cost, about $700/day per ship. When the program ran out of money, instead of going to Congress for more, NOAA decided to charge the fishing companies directly. Courts said that’s OK because Chevron defers to the agency to interpret ambiguous laws. In this case, the law listed certain classes of fishing vessels and said they must bear the cost. But it doesn’t specify herring vessels. NOAA decided it includes them. SCOTUS said no.

Loper Bright Enterprises v. Raimondo

The Supreme Court should either overrule Chevron or clarify that unelected bureaucrats cannot compel fishermen to pay at-sea monitors without a clear authorization from Congress. This case provides that opportunity.

loperbrightcase.com

 

[Domenick]

Heroes come in all shapes and sizes.
Go herring fishermen!

 

[Ed Haywood]

Go herring fishermen!

But not red herring fishermen.

 

[Llewtrah381]

Court-Clogging Supreme Court Action A Drag On Progress - AVweb

The Supreme Court has upended the regulatory process with the end of the Chevron deference.

www.avweb.com

And from a post on Beechtalk:

“As I write from the bridge of my commercial fishing vessel in Alaska, reading about SCOTUS disallowing a government agency the National Marine Fisheries Service, to mandate observers on commercial fishing vessels on the East coast I can tell you this: Observers are essential to our business. They sample every tow and extrapolate out exactly how much of a species we catch, which goes against the quota set by the same agency.
The fishery's in Alaska are the best regulated and managed in the world. The fishing is just as good today as when I started 30 years ago.

I bought a trawler out of New Bedford expecting the same excellent management of the East coast fisheries, and boy was I surprised. There are no observers. The cheating is epidemic. When I mentioned to one guy that 4,000 lbs of scallops he was bringing in was quite different from the 400Lb limit, I was threatened with being shot. You may remember the "Cod Father" case. One of the largest commercial fishing enterprises in New Bedford was finally busted after decades of systemic overfishing and fraud.

All easily prevented by having NMFS Observers aboard the vessels. And NMFS Enforcement at the dock when you try to cheat.

I live on Cape Cod and most residents will never catch a cod off their beaches because the cod fishery has been destroyed by overfishing. Read: "Cod" by Mark Kurlansky.

I sold that trawler and never looked back. As far as I am concerned that fishery is one giant criminal enterprise. I wanted no part of it.

The Supreme Court today reminds me of young people who read Ayn Rand for the first time. Sure, let the Midas"s of the world do their thing because that is enterprise in its purest form. Government interference just drags down their supernatural ability to do good.
Hogwash.

GE dumped millions of gallons of PCBs in the Hudson River and my state Massachusetts and Jack Welch, GE's Midas, brilliantly got the company off the hook of having to clean the %#$@ up. Garbage loans were bundled into AAA securities and sold after Regan AND Clinton gutted banking regulations. That turned out well huh?

Just like the folks who think Communism is great, "from each according to their abilities, to each according to their needs" the simple factor of human nature is left out. And in turn we end up with the Stalin's and Pol Pots.

James Madison, the "Master architect of the Constitution" said it best: “If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
Thank God men like Madison arsed themselves to form our government, and not some of the bought and paid for shills who populate SCOTUS today.

Currently, this moment, I am jogging my vessel after catching over 100 tons of Mackerel last night. The east coast will never again see fishing like that in my lifetime. Properly managed, by a government agency with teeth, it would have.


Last edited on 30 Jun 2024, 15:04, edited 2 times in total.”

 

[weilke]

If you want to see amok just watch what happens if they toss this, no agency will be able to do anything. Which is of course the point.

If with 'anything' you mean 'make up rules as they go and not be challenged about it', then yes they won't be able to do 'anything'.

All they lose is the ability to say 'because we said so, that's why!'

 

[Llewtrah381]

All they lose is the ability to say 'because we said so, that's why!'

Per the article in my post above, I think we’re gonna lose a lot more than that.

The rule making process is a bit more structured than “because we said so”:

Federal Register :: Request Access

Add: IMHO, most (almost all?) regs at any government level are because someone did something that most of us would think one wouldn’t have to say you can’t do. They’re a reflex, not prospective “because I decreed it”

 

[Matthew]

Congress can amend the law so it applies to the North Atlantic fishing fleet.

 

[Half Fast]

Congress can amend the law so it applies to the North Atlantic fishing fleet.

Yes, it can.

There's lots of unwarranted hand wringing over this decision. All it really does is say that courts are no longer required to rubber-stamp any "reasonable" interpretation from an agency and can give equal credence to reasonable interpretations from a challenger, then arbitrate between them. It means that "expertise" from an agency does not have to be the only expertise that carries weight.

This article seems to be a reasonable discussion of the decision: https://www.sidley.com/en/insights/...reshaping-the-future-of-regulatory-litigation .

The death of Chevron also does not mean an end to deference. First, as the majority opinion recognizes, Congress may (subject to certain constitutional limitations such as the Non-Delegation Doctrine) expressly delegate discretionary authority to agencies. The decision in Loper Bright merely holds that courts should no longer “pretend” that statutory silence or ambiguity constitutes such a delegation. Further, the Court describes its expertise solely in the interpretation of laws; there remains substantial room under the arbitrary-and-capricious standard for agencies to apply their deference in the application of law to new facts.​

 

[Matthew]

10 more minutes and the Supreme Court punches out the rest of their decisions from this term.

 

[weilke]

Per the article in my post above, I think we’re gonna lose a lot more than that.

The rule making process is a bit more structured than “because we said so”:

Federal Register :: Request Access

Add: IMHO, most (almost all?) regs at any government level are because someone did something that most of us would think one wouldn’t have to say you can’t do. They’re a reflex, not prospective “because I decreed it”

I think that's called a 'straw man argument'. Doing away with the 'chevron deference' doesn't eliminate the ability of agencies to issue regulations. It does away with the requirement of courts to defer to the agencies interpretation of the law. Never made sense. Judges are not experts on anything but the law. If they need technical expertise in lets say a liability case, they receive competing expert witness testimony and they decide how to weigh it. This just brought fed agencies back into the real world where your actions may be subject to judicial review.

 

[Domenick]

Court-Clogging Supreme Court Action A Drag On Progress - AVweb

The Supreme Court has upended the regulatory process with the end of the Chevron deference.

www.avweb.com

And from a post on Beechtalk:

“As I write from the bridge of my commercial fishing vessel in Alaska, reading about SCOTUS disallowing a government agency the National Marine Fisheries Service, to mandate observers on commercial fishing vessels on the East coast I can tell you this: Observers are essential to our business. They sample every tow and extrapolate out exactly how much of a species we catch, which goes against the quota set by the same agency.
The fishery's in Alaska are the best regulated and managed in the world. The fishing is just as good today as when I started 30 years ago.
...

The SCOTUS decision limited an agency/administration from overstepping its bounds as set by congress and the constitution. I do not believe the SCOTUS decision banned observers on boats or docks. The decision was about whether the fishermen would have to pay $700/day to cover the cost of the onboard observers.

The fact the case concerned NOAA's decision to charge fisherman directly for onboard NOAA observers, is almost irrelevant. The decision simply sets such regulatory issues in the lap of congress where it belongs. If congress wants to legislate a direct charge of $700/day to commercial fisherman they can. Until congress passes such legislation, the taxpayers will continue to pay the cost of NOAA observers.

If you think directly charging commercial fisherman for onboard observers is the way to go, then lobby congress to pass legislation.

 

[ateamer]

So do I have this right? NOAA decides that they need to put an observer on every fishing boat. The fishermen didn’t request it. And then NOAA decides that the fishermen have to pay them for the observers, even they’re already paid for by taxes. Seems fair - sure.

 

[Chip Sylverne]

So do I have this right? NOAA decides that they need to put an observer on every fishing boat. The fishermen didn’t request it. And then NOAA decides that the fishermen have to pay them for the observers, even they’re already paid for by taxes. Seems fair - sure.

Infinitely small potatoes compared to what litigation this decision will bring. For instance, CMS determines which statistical area incomes determine Medicare reimbursement rates. Huge amounts of money at issue. Now that those decisions can be challenged in court, who thinks they won't be?

 

[Llewtrah381]

I think that's called a 'straw man argument'. Doing away with the 'chevron deference' doesn't eliminate the ability of agencies to issue regulations. It does away with the requirement of courts to defer to the agencies interpretation of the law. Never made sense. Judges are not experts on anything but the law. If they need technical expertise in lets say a liability case, they receive competing expert witness testimony and they decide how to weigh it. This just brought fed agencies back into the real world where your actions may be subject to judicial review.

Fair enough and I hope you’re right.

Although we want to believe our justice system is fair and unbiased, I think anyone of any political persuasion can sense that’s not 100% true.

“Follow the money”

 

[Half Fast]

Infinitely small potatoes compared to what litigation this decision will bring. For instance, CMS determines which statistical area incomes determine Medicare reimbursement rates. Huge amounts of money at issue. Now that those decisions can be challenged in court, who thinks they won't be?

Of course it will be challenged. So to prevent challenges, CMS would need to take their recommendation to Congress and let Congress incorporate it into the law. The USSC decision prevents CMS from making changes on the whim of an adminstration that will have a large monetary impact on Medicare recipients.

Alternatively, when CMS is challenged, the court may still decide to defer to CMS' position, as in the past, but the court is no longer obligated to do so and can give weight to the challenger's position.

 

[Shepherd]

Chevron was a very bad idea, and I'm glad it's dead.
JMHO

 

[Matthew]

Of course it will be challenged. So to prevent challenges, CMS would need to take their recommendation to Congress and let Congress incorporate it into the law. The USSC decision prevents CMS from making changes on the whim of an adminstration that will have a large monetary impact on Medicare recipients.

Alternatively, when CMS is challenged, the court may still decide to defer to CMS' position, as in the past, but the court is no longer obligated to do so and can give weight to the challenger's position.

I think your last paragraph is key: nothing prevented court challenges prior to this decision. But courts had to defer to the agency when the law was ambiguous. The court still had to decide on the definition of “ambiguous”.

 

[Pinecone]

Add: IMHO, most (almost all?) regs at any government level are because someone did something that most of us would think one wouldn’t have to say you can’t do. They’re a reflex, not prospective “because I decreed it”

Every line in every regulation that I am familiar with came from someone doing something stupid and the regulation re-written to say to not do that.

And I have to be involved with a LOT of regulations throughout my life.

In the past, from some state regs in my field, I could tell you the story behind almost every line in the regs.

 

[Ed Haywood]

So do I have this right? NOAA decides that they need to put an observer on every fishing boat. The fishermen didn’t request it. And then NOAA decides that the fishermen have to pay them for the observers, even they’re already paid for by taxes. Seems fair - sure.

A bit more nuanced than that. Congress passed a law requiring observers and payment for various types of commercial fishing boats. They did not list herring fishermen. NOAA decided the law was ambiguous on the types of boats, and that herring fishermen should be included. The herring fishermen sued, saying they were not on the list. Under Chevron precedent, the courts would defer to NOAA's expertise on whether herring fishermen are included in the list or not. Without Chevron, the courts will be more free to scrutinize NOAA's decision.

As usual, any ideological take is mostly nonsense. This is neither the defeat of tyranny nor the advent of anarchy. It is a rather obscure procedural issue that has pros and cons in terms of impact on citizens.

 

[Lindberg]

Court-Clogging Supreme Court Action A Drag On Progress - AVweb

The Supreme Court has upended the regulatory process with the end of the Chevron deference.

www.avweb.com

And from a post on Beechtalk:

“As I write from the bridge of my commercial fishing vessel in Alaska, reading about SCOTUS disallowing a government agency the National Marine Fisheries Service, to mandate observers on commercial fishing vessels on the East coast I can tell you this: Observers are essential to our business. They sample every tow and extrapolate out exactly how much of a species we catch, which goes against the quota set by the same agency.
The fishery's in Alaska are the best regulated and managed in the world. The fishing is just as good today as when I started 30 years ago.

I bought a trawler out of New Bedford expecting the same excellent management of the East coast fisheries, and boy was I surprised. There are no observers. The cheating is epidemic. When I mentioned to one guy that 4,000 lbs of scallops he was bringing in was quite different from the 400Lb limit, I was threatened with being shot. You may remember the "Cod Father" case. One of the largest commercial fishing enterprises in New Bedford was finally busted after decades of systemic overfishing and fraud.

All easily prevented by having NMFS Observers aboard the vessels. And NMFS Enforcement at the dock when you try to cheat.

I live on Cape Cod and most residents will never catch a cod off their beaches because the cod fishery has been destroyed by overfishing. Read: "Cod" by Mark Kurlansky.

I sold that trawler and never looked back. As far as I am concerned that fishery is one giant criminal enterprise. I wanted no part of it.

The Supreme Court today reminds me of young people who read Ayn Rand for the first time. Sure, let the Midas"s of the world do their thing because that is enterprise in its purest form. Government interference just drags down their supernatural ability to do good.
Hogwash.

GE dumped millions of gallons of PCBs in the Hudson River and my state Massachusetts and Jack Welch, GE's Midas, brilliantly got the company off the hook of having to clean the %#$@ up. Garbage loans were bundled into AAA securities and sold after Regan AND Clinton gutted banking regulations. That turned out well huh?

Just like the folks who think Communism is great, "from each according to their abilities, to each according to their needs" the simple factor of human nature is left out. And in turn we end up with the Stalin's and Pol Pots.

James Madison, the "Master architect of the Constitution" said it best: “If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
Thank God men like Madison arsed themselves to form our government, and not some of the bought and paid for shills who populate SCOTUS today.

Currently, this moment, I am jogging my vessel after catching over 100 tons of Mackerel last night. The east coast will never again see fishing like that in my lifetime. Properly managed, by a government agency with teeth, it would have.


Last edited on 30 Jun 2024, 15:04, edited 2 times in total.”

Sounds like antidemocratic ranting to me. If mandatory observers are needed to properly regulate fishing off Cape Cod as is necessary and desirable, then proper regulations should be passed. The Courts decision doesn't say that observers can't be required on the East Coast or anything remotely like that.