Rethinking ‘Chevron’ Doctrine: Notable Supreme Court Cases Shed Light on the Need for Reevaluation

The Supreme Court is considering two cases in which herring fishermen in New Jersey and Rhode Island are challenging regulatory fees not authorized by Congress. Critics argue that the sympathetic plaintiffs are “providing cover” for a corporate attempt to “disable and dismantle” environmental regulations. The New York Times describes Koch as the “hidden conservative backer” of the New Jersey case, which involves lawyers employed by the Koch-funded Americans for Prosperity. The plaintiffs are family-owned businesses that cannot easily bear the financial burden imposed by the requirement that they make room on their boats for observers monitoring compliance with fishery regulations. The relevant statute says nothing about collecting such fees from operators of herring boats in New England waters, although it does authorize them, within specified limits, for “certain North Pacific fisheries, limited access privilege programs, and foreign fishing.” “Many other individuals who interact with the federal government have found themselves facing similar fates,” Gorsuch wrote, “including retirees who depend on federal social security benefits, immigrants hoping to win lawful admission to this country, and those who seek federal health care benefits promised by law.” The victims in such cases are not billionaires like Charles Koch. They are ordinary Americans who are hopelessly outmatched by government agencies that write their own rules. The lawlessness fostered by the Chevron doctrine, in short, should give pause even to Koch’s progressive critics.