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Loper Bright: A view from inside the Supreme Court

Jan 26, 2024 by James Valvo

This year, I look forward to inviting more people to bring you insights into the causes they’re addressing. Today I’m pleased to introduce my colleague James Valvo, chief policy counsel at Americans for Prosperity Foundation. James is also the executive director of Cause of Action Institute, which is representing the fishermen in Loper Bright Enterprises v. Raimondo — so I’m thankful for his inside look at the case. — Casey

Last week, I had the chance to walk into the U.S. Supreme Court. The reason? To hear arguments in Loper Bright v. Raimondo, one of the most important cases of the 2023-24 term.

The plaintiffs were small, family-owned fishing businesses from Cape May, New Jersey. And presenting their case to the court was the culmination of almost a decade of work fighting for fishermen and the rule of law.

The fishermen originally brought the case to challenge a rule that the government unlawfully used to force them to pay the salaries of third-party monitors on their boats. Here’s how a fisherman subject by the rule described its impact in USA Today:

Following the law is a good thing, but the government should pay for its own monitors. Federal law never required the fishermen to cover this cost, and they can’t afford the $700 to $900 daily fee. It’s going to run them out of business.

By the time they made it to the Supreme Court, Loper Bright had become about a legal doctrine that sounds abstract but has real-world implications for people across the country. It’s called the Chevron deference.

Loper Bright presented the Court with one of the most fundamental questions in our government: Who decides? When Congress writes a law directing federal agencies to implement a regulatory program, who decides what that law means?

For too long, Chevron deference has forced courts to defer to agency interpretations of laws they claim are unclear or ambiguous. But this rule turns our system on its head and allows agencies to abuse their authority. The Constitution and the separation of powers assign courts the duty to say what the law is.

The Justices were debating these core issues during the Loper Bright oral argument, and two fundamentally different views of judicial review were on display:

  • One side, led by Justices Neil Gorsuch and Brett Kavanaugh, was skeptical of the idea that courts should allow agencies to say what the law is, especially when there are silences or gaps in a statute.
  • The other side, exemplified by Justices Elena Kagan and Sonya Sotomayor, insisted that these types of legal interpretations are just policymaking and thus the courts should be less involved.

First Amendment attorney David French recently wrote about the implications of Chevron deference and Loper Bright, noting:

Americans feel alienated from their government for good reason. Democracy feels more distant because it is more distant. Decades of congressional failure have diminished congressional power and placed it in the hands of presidents and their army of unelected administrators. We need to reverse bad precedent. Regardless of whether one is for big government or small government, we should all be for democratic government, and that — at the very least — requires Congress to do its job.

Our view is that Congress should make the law, the Executive should implement that law, and, if a dispute arises, the Judiciary should say what the law is. Chevron deference has twisted this basic distribution of governmental functions.

Justice Gorsuch had the most poignant moment of the day when he remarked that “the immigrant, the veteran seeking his benefits, the Social Security Disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote,” are often the people hurt by the Chevron regime because it places a thumb on the scale and ensures the government almost always wins.

This is what happened to the fishermen we represent. But, last week, they got their day in court, and we’re confident that this time they got a fair hearing.

There was an underappreciated exchange in the argument between Justice Ketanji Brown Jackson and Roman Martinez, who was arguing a companion case alongside Loper Bright, that I want to focus on for a moment:

Justice Jackson: So every statutory interpretation question is one of law that a court can decide, you’re saying?

Mr. Martinez: Yes.

Justice Jackson: There’s never a statutory interpretation question that is one of policy that you see Congress may have been intending the agency to answer?

Mr. Martinez: I think, by definition, if we’re talking about interpreting a statute, then you’re talking about a legal question in the same way that if you’re talking about interpreting the Constitution, then you have a constitutional question. No one would say that you would apply deference there.

This exchange highlights the two fundamentally different understandings of what judicial review is doing.

Justice Jackson thinks judges should be or are forced to make policy choices when they interpret law. Martinez believes judges should eschew that impetus and do their best to say what the law is, what it already IS. And I agree with him.

Policymaking necessarily includes an element of will, a desire to say what you want the law to be, what you think is important, just, fair, efficient, or right. It deals with “ought” questions. What ought the law be?

Textualist judicial review tries to avoid that question and instead works to give the best effect to the will of another, the will of Congress. It deals with “is” questions. What is the law Congress passed?

As Alexander Hamilton wrote in Federalist No. 78:

The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.

This is, of course, not to claim that judges always draw this line correctly. But it should be the goal, the structure, and the standard to which we hold our institutions. That requires ending deference and keeping the proper functions in the proper institutions. I am, after all, a formalist.

All in all, it was a good day for the Constitution. The Justices were engaged and debating questions of the highest importance.

Now, we wait to hear how the Court will decide Loper Bright. We expect to receive a decision before the end of June — so stay tuned for an update this summer!

— James Valvo


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