The right-wing attack on federal regulators reaches a receptive Supreme Court

Nearly 40 years ago, the Supreme Court laid down a bedrock principle that has been relied upon ever since. That principle acknowledged the crucial role of experts at federal agencies tasked with creating and enforcing rules to keep banks and other businesses honest, our air and waters clean, drugs and consumer products safe, and much more.

Now the court is poised to overturn that important doctrine, which has long been derided by deep-pocketed conservative groups bent on rolling back that important administrative authority. If the court upends that longstanding rule, it would not only put Americans at risk but also further erode the already waning trust in the court as an institution. We can afford neither.

In that 1984 ruling, the court held that an agency’s interpretation of federal law should be given deference by the courts unless that interpretation is unreasonable. That principle became known as the Chevron doctrine, named after the oil industry giant that was a party in the case.

The rationale by the justices at that time — jurists who were appointed by Republicans and Democrats — was that in even the most carefully worded legislation, there are bound to be ambiguities. Technical or logistical questions may arise that Congress did not, or could not, contemplate in the writing of a law. When such scenarios arise, the civil servants at federal agencies “with great expertise and charged with responsibility for administering the provision would be in a better position” to fill in any “gap left open by Congress” than judges would be.

The court tied only its own hands. Nothing about the 1984 ruling took power away from Congress — which can (and sometimes does) still overrule agencies if it feels they erred or overstepped.

Still, in the ensuing four decades little has changed except the growing animosity by business groups and conservative organizations toward administrative agencies. And now such groups, including a network backed by billionaire Charles Koch, are using a legitimate dispute between Northeast Atlantic fishermen and the National Marine Fisheries Service as a device to kill the Chevron doctrine once and for all.

Conservatives are backing fishermen in a challenge to an agency rule requiring fishermen to foot the cost of federally mandated observers on fishing vessels. Those observers monitor catches to ensure compliance with federal rules designed to prevent overfishing — rules meant not only to protect marine life but also the fishing industry, ensuring that their natural supply remains robust for generations to come. But that cost can exceed $700 a day — a fee fishermen say can eat up as much as 20 percent of their profits.

But rather than seeking to obtain relief for fishermen under the rule, the challengers are asking the court to overturn Chevron entirely.

Some members of the court seemed keenly aware of the danger of such a move. Justice Ketanji Brown Jackson expressed fear that such a ruling would turn judges into “uber-legislators” by putting them in the shoes of members of Congress who pass laws and agency experts who best understand the industries they regulate.

But the majority of the justices seem ready to give the conservative groups what they want: war on the administrative state.

Such a ruling would not only offend constitutional separation-of-powers principles but it would also put Americans — including the fishermen — at

Conservatives are backing fishermen in a challenge to an agency rule requiring fishermen to foot the cost of federally mandated observers on fishing vessels.

risk. And it would be unnecessary.

First, agency rulemaking is preceded by a notice and comment period that allows stakeholders to weigh in on the impact of regulations before they go into effect. Once a rule is implemented, those covered can often seek waivers or exemptions. In this case, not only was the observer rule suspended on an emergency basis during the COVID-19 pandemic, but waivers were also created, for example, for Northeast regional fishermen participating in a pilot program using electronic monitors in lieu of live observers — a program that reimburses most or all of monitoring costs. And Congress itself can always reject a rule or simply change the law.

The point is that in this and other cases involving industry rules, there are other solutions that negate the need for what the challengers are seeking, which is to shift the oversight role intended for the legislative and executive branches — both of which must answer to their constituencies through elections — to the judiciary, which does not.

And even more damaging, overturning another longstanding precedent would only further erode public trust in the court.

As Justice Elena Kagan warned the challengers’ attorney during oral arguments last week, both the Chevron deference doctrine and the doctrine of stare decisis — requiring the court to adhere to its own precedent except in the most extraordinary of circumstances — are important principles to remind judges that even they have their limitations. They are, as she stated, doctrines of humility. After abandoning stare decisis to overturn Roe v. Wade, chucking aside another self-imposed limitation would deepen the impression that the justices are acting like politicians.

“You’re saying, blow up one doctrine of humility, blow up another doctrine of humility, and then expect anybody to think that the courts are acting like courts,” Kagan said.

The justices must keep her words front of mind and proceed carefully.