Supreme Court takes up case of fisherman challenging government regulation that could give ‘convulsive shock’ to decades of rules

The Supreme Court on Wednesday is taking up challenges by commercial fishermen to a fee requirement that could achieve a long-sought goal of business and conservative interests: limiting a wide swath of government regulations.

Billions of dollars are potentially at stake in front of a court that, like the rest of the federal judiciary, was remade during Donald Trump’s presidency by conservative interests that were motivated as much by weakening the regulatory state as social issues including abortion.

Lawyers for the fishermen are asking the justices to overturn a 40-year-old decision that is among the most frequently cited high court cases in support of regulatory power, including on the environment, public health, workplace safety and consumer protections.

Lower courts used the decision known colloquially as Chevron to uphold a 2020 National Marine Fisheries Service rule that herring fishermen pay for government-mandated observers who track their fish intake.

The 1984 decision states that when laws aren’t crystal clear, federal agencies should be allowed to fill in the details as long as they come up with a reasonable interpretation. “Judges are not experts in the field, and are not part of either political branch of government,” Justice John Paul Stevens wrote for the court in 1984, explaining why they should play a limited role. The court ruled 6-0, with three justices recused.

The supremes usually take a case, when they see a potential to overturn something.
If the law is clear, and the subject properly decided, there is no need for them to take the case.
So just the act of taking on a “settled law” is a signal that at least some of then do not like it.

The legislative branch has seemingly been quite content with the status quo.

In many ways, it works very well for legislators. They relieve themselves of all responsibility "not my fault, the administrators did it" and gain the power to push for mercy in individual cases, with their access to the regulators "see what I did for you!" (Constituent services).

What Obama did with the continuing resolution is remove the last bits of power of the purse from the legislature. Without the ability to threaten to cut funding, Congress lost any control over the administrative bureaucracies, especially the intelligence agencies, who already had little control.

So what about the example?

If the law states the agency may collect the fee, can it be so high that it puts the fisherman out of business?

Public comment on a fee can be 99-1 against and the agency can still adopt it; no law would ever pass like that.

Not everything makes it to the Federal Register either.

A couple of decades ago a senator asked the DOJ for a list of regulations and rules at all levels that required a prison sentence. Not laws passed by a government. But rules or regulations that were put into place by agencies. The DOJ said that there were perhaps thousands of regulations at all levels of government that required a prison sentence and that listing them would be an impossible task. Catch too many of the wrong fish, or too small, or in the wrong season and you could be in for a prison sentence. I saw a tortoise laying eggs in my driveway. I contacted my workout buddy, a federal official with a license to handle various endangered species. He told me how to dig them up, how to mark them, and how to move them. I did as he instructed and called a nature museum and asked if they wanted the eggs. The director said, “I can tell you; you don’t have tortoise eggs. I know this, because if you did, I’d be required by law to report you and you’d face up to a year jail and a fifteen thousand dollar fine. It’s the same fine if you just pick one up and move it off the road, by-the-way.” When I asked him what I should do with the totally not tortoise eggs he said, “I’d make an omelet.”

After some conversation, he told me when exactly to bring them to the front desk, when it would be manned by someone who wouldn’t know an egg from a tennis ball, which I did.

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