Is everything not forbidden then permissible for federal agencies? That's the question at the heart of a legal battle that the Supreme Court on Monday agreed to hear—a case which could (hopefully!) curtail the power of the administrative state.
Does statutory silence—that is, nothing in a law saying yay or nay—on powers narrowly granted elsewhere mean that a federal agency has the authority to use those powers broadly? Or must explicit authority to act be granted by Congress? One would think (and hope) that it's the latter; otherwise, the power of federal bureaucrats is basically unchecked. Unsurprisingly, the government is essentially arguing the former.
The case is Loper Bright Enterprises v. Raimando, and it concerns a National Marine Fisheries Service (NMFS) rule requiring fishing vessels to fund a federal monitoring program. Under the Magnuson-Stevens Fishery Conservation and Management Act, fishing boats must accommodate federal monitors, though the law says nothing about requiring boat owners to pay for them.
But the impact of this case goes way beyond fisheries. How the Court rules here could have major implications for federal regulations of all sorts.
That's because the court is set to take another look at Chevron v. Natural Resources Defense Council, a 1984 case setting a precedent of extreme deference to federal agencies in cases concerning the limits of their statutory authority. The Chevron precedent "has been extensively used by the U.S. government in arguing environmental, financial and consumer protection cases," notes Robert Barnes at The Washington Post.
It's frequently cited by the government to justify regulations when the authority to pass said regulations is being challenged.
In the current case, the group challenging the NMFS rule is a coalition of New Jersey fishing firms. Their lawyer (and former solicitor general) Paul D. Clement told the Post that the Supreme Court's decision could not only "deliver justice to these fishermen but also…reconsider a doctrine that has enabled the widespread expansion of unchecked executive authority."
"It's the phrasing of the question presented…that is of particular interest," writes Case Western Reserve University law professor Jonathan Adler at The Volokh Conspiracy:
The petition for certiorari in Loper Bright presented two questions to the Court:
- Whether, under a proper application of Chevron, the MSA [Magnuson-Stevens Act] implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry.
- Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
Of note, the Court only granted certiorari on the second question, meaning that the briefing and argument will focus on whether the Court should "overrule" or "clarify" Chevron v. NRDC. To say this is significant is an understatement.
The prospect of overruling Chevron already has legal commentators in a tizzy, but it is important to note that the question presented is not limited to whether the Court should overturn Chevron. The QP asks the Court, in the alternative, to limit Chevron—some would say, confine Chevron to its proper domain—by making clear that a statutory silence does not constitute the sort of ambiguity that justifies deference to the agency. Put another way, the QP asks the Court to reinforce the principle that agencies only have that authority Congress has actually delegated to them or, if you prefer, that a statute grants what it grants, and the rest is silence.
In recent years, the Court has not relied on Chevron when deciding cases, though the Chevron doctrine is still used regularly by lower courts.
Libertarians and conservatives have both been skeptical of this reliance.
"Courts deferring routinely to regulators' interpretation of the law encourages them to aggregate power to themselves while depriving harmed parties of effective judicial remedies," commented Iain Murray, a senior fellow at the Competitive Enterprise Institute. "Natural justice and due process require a judiciary that is more involved in determining what the law says. Chevron deference should be overturned as a matter of regulatory hygiene."
Adler thinks the Court will not overturn the Chevron doctrine but is likely to narrow it, making "clear that statutory silences and ambiguities should not be construed as grants of agency authority."
"This is of a piece with…the elevation of the Major Questions doctrine," he points out. "This is a way to curtail the ability of agencies to aggrandize their power, but without destabilizing judicial review of agency action."
Americans worry about misinformation but disagree about its causes. A new survey from the Associated Press–NORC Center for Public Affairs Research and Robert F. Kennedy Human Rights suggests that the vast majority of people are worried about the spread of misinformation. Some 93 percent of those surveyed said the spread of misinformation is a problem. But people were much more divided when asked where to place the blame:
About two-thirds of adults attribute responsibility for the spread of misinformation to U.S. politicians, social media companies, and their users. But nearly as many (58%) are holding the news media responsible as well. And when it comes to fixing the problem, 63% of adults say the news media has a great deal or quite a bit of responsibility to address the spread of misinformation.
Nick Cowen, a senior lecturer in the School of Social and Political Sciences at the U.K.'s University of Lincoln, talked to Aaron Ross Powell about the role of markets in delivering social justice. A sample:
I think when it comes to things like harm, what people on the left will draw a lot of attention to is the externalities of markets, so things like pollution which have bad impacts on people's well-being. I think a very current thing that's happening at the moment is the debate about what kind of energy we should be reliant on. Should we be relying on fossil fuels, nuclear power, or renewables?
When it comes to car driving, are we going to be using petrol or gasoline or moving over to electric? It's interesting because it matches up with some cultural conflicts, a bit of the culture wars. On that front, I tend to think that the basic thrust of what progressives are trying to achieve is actually quite right. There are a lot of externalities that come from our current reliance on fossil fuels. It's not just climate change. It's literally the urban environment that we're in.
There's a lot of social harms out there. What they slightly miss is the dynamic aspect of this, that these technologies themselves were at some point ways of solving other problems. We're not born into a world where externalities don't exist and then we just introduce them. We're always already in a position where we are engaging in activities that are beneficial to the immediate parties but have some impacts on people around them.
Normally, or at least hopefully, these individual actions are small enough that they don't require direct intervention. When the level of activity, say the amount of car usage rises enough, and suddenly, it's having visible effects on people's health. Also when technology changes such that it's possible to track that behavior, to track that activity, and there's new alternatives that come in, then it is time to transition. How does that transition happen? It is going to happen substantially through things like innovation and incentives coming out through commercial society. That's the way that I try and pitch our position.
As market liberals, we shouldn't be married to a particular set of institutions or set of technologies, regardless of whether they emerge thanks to the state or thanks to the market—or as is realistically the case—a combination of the two. We always have a lesson about the process by which we're going to move from a relatively worse position to a relatively better position. The other thing is that we're nearly always talking about relatively better positions, not ultimately the best position. We don't let the perfect be the enemy of the good in our political economy.
Listen to or read the whole interview here.
• "At long last, the U.S. federal government will end the COVID-19 vaccine mandates for international travelers, federal workers, Head Start employees, and the healthcare industry," notes Reason's Robby Soave. "The mandates will expire on May 11, the date that President Joe Biden has designated as the formal end of the COVID-19 public health emergency."
• Pornhub blocks viewers in Utah.
— Ben Winslow (@BenWinslow) May 1, 2023
• Minnesota lawmakers have approved a bill legalizing recreational marijuana use.
• "Mom influencer" Katie Sorensen has been convicted of filing a false police report after claiming—in a story that went viral—that strangers were trying to abduct her kids at a Michaels store.
• Inside the scene at Bluesky, the possible Twitter replacement created by former CEO Jack Dorsey.