Tuesday, December 26, 2023

I’ve been thinking about SCOTUS again. I mentioned a few weeks ago the Loper Bright Enterprises case, which if you missed it, that blog post can be found here. Oral arguments are scheduled for January, and of course October Research will bring you coverage. We got a surprise recently, when another companion case was added to the oral argument calendar for the same day. Let’s spend a little time getting to know that case.

Relentless, Inc vs. Department of Commerce will be heard the same day as Loper Bright. In Relentless (which is kind of a great name) at issue is whether the court should overrule or clarify the Chevron Deference two-prong test. If that sounds to you a lot like the Loper Bright case, you’re right. The similarities don’t stop there.

Relentless is the name of a fishing vessel. At issue, once again, is whether the Department of Commerce has the authority to charge fishing companies for the cost of inspectors who board the ships to monitor for compliance.

It’s interesting that these cases will be heard together. They’re not together as a result of a circuit split, as they are from different circuits, but both circuit courts found the fees legitimate. At least one other court of appeal has held the opposite. Yet cert was not granted in that case.

The stakes are quite high. Whether courts continue to defer to an agency’s interpretation of a statute when it is ambiguous, or if they decide that ambiguous language must be sent back to Congress for further clarification, is a question that could impact our business greatly. It would impact many other industries, as well.

There is a lot of speculation regarding whether the court agreed to hear both of these cases because it is leaning toward affirming these two districts’ holdings, or if they granted cert for Relentless because Justice Ketanji Brown Jackson is recused from Loper Bright, since she was part of the earlier decision. Perhaps they want her to weigh in, and Relentless is the vehicle for that.

Perhaps they see a distinction between the two fact patterns that will further illuminate a path for a Chevron-like finding, or a replacement standard such as the substantial questions doctrine.

Let’s remember, proponents of Chevron Deference believe it to be the practical, common-sense way to manage a large government.

Opponents think that it has made the government too large and places critical decision making too far away from elections of the citizens.

Many think they can predict what this court will hold, yet it’s important to remember how many cases don’t end up in a 5-4 split, but rather a 3-3-3 split. These two cases might very well fall in the second category.

A clue might also be found way back in the ’80s, from then Justice Antonin Scalia, who said he believed the Chevron outcome to be the most important administrative law decision in the era of the modern administrative state.  A notorious conservative justice, Scalia was also an administrative lawyer when he was in practice. He predicted Chevron would survive, “not because it represents a rule that is easier to follow and thus easier to predict (thought that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs.”

Yet, this video, hosted by a more contemporary Federalist Society, seems to argue that Scalia’s practical affection for Chevron Deference may have been waning in his final years. Let’s see which viewpoint wins the day.

We’ll keep you updated.

Until next time,

Mary Schuster
Chief Knowledge Officer
October Research, LLC