Attorneys representing Northeastern fishermen will make their case at the Supreme Court on Wednesday that the 40-year-old precedent most commonly cited to support federal agency regulatory power should be cast into an oceanic abyss.

A group of fishermen from New Jersey will see the justices consider their lawsuit against a Commerce Department regulation through the National Oceanic and Atmospheric Administration, which required their boats to pay roughly $700 per day to fund the salary of human “at-sea” monitors for each fishing venture. The heart of the case asks the court to overturn the 1984 precedent from a case called Chevron U.S.A., Inc. v. Natural Resources Defense Council.

“You can’t even promise to pay the crew $780 per day,” Jerry Leman, founder of the New England Fishermen’s Stewardship Association, told the Washington Examiner, referring to the financial setbacks on his business by the required at-sea monitors. Leman’s group filed an amicus brief to the high court asking it to curb the Biden administration’s power over the fishing industry.

The 1976 Magnuson-Stevens Act is the primary law that allows at-sea observers to board private fishing boats in U.S. federal waters. While its objective was to prevent overfishing, Leman contends fishermen should never be the ones to front the bill to pay for the government’s monitoring work.

“We’re pumping more money into their program than we are paying our own crews,” Leman said.

The challenge against the at-sea monitors eventually reached the U.S. Court of Appeals for the District of Columbia Circuit, which held that the statute was ambiguous on the question of monitor salary. But under the Chevron deference, that meant the government won.

Lawyers for the New Jersey fishermen will tell the nine justices the payment mandate violates Article 1 of the Constitution and that the court should overturn Chevron, an outcome that court watchers say could be a stretch too far even for the Roberts Court, positing that the justices might go as far as to find a replacement for Chevron.

Representing the New Jersey fishermen will be veteran attorney Paul Clement, a former solicitor general under the Bush administration. Another lawsuit brought by fishermen based in Rhode Island will be argued by attorneys for the New Civil Liberties Alliance. 

The high court’s two argument hearings on Wednesday will focus on the question of Chevron’s fate, meaning the justices will be toiling over the matter for several hours.

“Overruling Chevron is overdue,” said Mark Chenoweth, president of NCLA. “Many administrative state pathologies can be traced to the malign influence that Chevron has in encouraging unlawful administrative power grabs. By putting this genie back in the bottle, the Supreme Court can restore federal court oversight to ensure that agencies execute the law as Congress wrote it.”

The Justice Department’s position will be headed by Solicitor General Elizabeth Prelogar in the pair of back-to-back oral arguments. Prelogar has said overruling Chevron would be a “convulsive shock” to the legal system.

“All three branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions,” she wrote in a brief in the Loper Bright case.

Chevron doctrine critics see the challenge as a way to rein in meddling federal bureaucrats, symptoms of a creeping administrative state in which regulatory overreach is rampant, while defenders of the doctrine worry the 6-3 conservative high court majority is poised effectively to let business interests kill off environmental and other expertly crafted regulations created for the public interest. 

Business groups ranging from farm, timber, and home-building sectors are backing the efforts by the fishermen. Meanwhile, conservative interests that have recently scored victories limiting regulation of air and water pollution are hoping to see another domino fall against the administrative state.

“Chevron deference is a pernicious doctrine that has enabled federal agencies to take over the courts’ power to interpret the law and Congress’ power to legislate,” Carrie Severino, president of the conservative legal advocacy group JCN, told the Washington Examiner. “To its credit, the Supreme Court has not applied Chevron in recent years, but lower courts nonetheless continue to rely on it, creating confusion and inconsistency in the law.”

Groups that favor the government’s position in the dispute, such as the Center For American Progress, say that the real goal of the cases is to give “unelected judges free rein to implement their own partisan policy agendas and disregard scientific analysis, the opinions of policy experts, and the will of Congress.”

If the justices rule the way the fishermen are calling on them to, then the upheaval of Chevron could lead to a “geometric increase in court challenges to federal rules,” Steve O’Day, a partner at Smith, Gambrell & Russell and head of the firm’s Environmental Law, Energy, and Sustainability practice, told the Washington Examiner.
“Ending the so-called Chevron deference could have dramatic effects on judicial treatment of expansive federal regulatory programs, but those effects could be favorable or unfavorable to regulated businesses, depending on the rules being challenged,” O’Day said.

Leman said his hopes are for the court to deliver a ruling in favor of the fishing groups, adding the current Chevron framework isn’t cutting it for businesses across the nation.

“I should be paying attention to my vessel and the safety of my crew, but now I have to babysit a child,” Leman said of the fishing monitors.

The first argument on Wednesday will be over Relentless v. Dept. of Commerce, the Rhode Island fishermen, while the second hearing will be Loper Bright Enterprises v. Raimondo, fishermen from New Jersey.