This humble fish may help the Supreme Court weaken the ‘administrative state’

A slender, silvery fish, sold for bait and canned as sardines, has the potential to play an outsize role in weakening the power of federal agencies to regulate vast areas of American life — overturning long-standing Supreme Court precedent in the process.

But the case before the high court this week is not really about the herring.

For 40 years, courts have generally deferred to the judgment of federal agencies when it comes to turning laws passed by Congress into detailed regulations designed to protect the environment, consumers and the workplace.

They did so because of the precedent set in 1984 in Chevron U.S.A. v. Natural Resources Defense Council, which requires judges to defer to the reasonable interpretation of federal agency officials charged with administering ambiguous federal laws.

But as the court has moved to the right in recent years, the conservative majority has been less likely to invoke that ruling, which outside groups have long seen as giving unaccountable bureaucrats too much power.

Now the high court is reviewing a pair of challenges to federal rules requiring commercial fishermen to pay for at-sea monitors — cases that could lead to the demise of Chevron, much as Dobbs v. Jackson Women’s Health Organization in 2022 overturned the historic Roe v. Wade ruling and eliminated the nationwide right to abortion.

The cases brought by Atlantic herring fishermen in New Jersey and Rhode Island will be argued Wednesday before a court remade by the addition of three justices nominated by President Donald Trump, whose administration put a premium on judges skeptical of federal government power.

Both lawsuits are backed by conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by billionaire industrialist Charles Koch and his late brother, David Koch.

The framework, known as “Chevron deference,” may sound like a boring academic exercise, said William & Mary law professor Allison Orr Larsen, who specializes in administrative law. But the question of how much flexibility to give federal agencies to implement laws passed by Congress has enormous implications.

“There’s a lot of money and practical consequences attached to those legal ambiguities,” Larsen said. “It’s ultimately a question about who decides. Is it an agency who decides or a court?”

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