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The Supreme Court will hear a case that could overturn a 40-year-old legal doctrine

AYESHA RASCOE, HOST:

The Supreme Court is back in session. And one of the cases coming up this term has to do with - now get this - herring, as in fish, not a red herring. But this case is about way more than fishing. It's about a 40-year-old legal doctrine about government power, the Chevron doctrine. And that's one of the most cited, if not the most cited, administrative law decisions in Supreme Court history. Andrew Mergen spent 30 years as an attorney at the Department of Justice Environment and Natural Resources Division. He now directs the Emmett Environmental Law and Policy Clinic at Harvard Law School. Welcome to the program.

ANDREW MERGEN: Thank you so much, Ayesha. I'm so glad to be here.

RASCOE: So let's start with the basics. What is the Chevron doctrine, and where did it come from?

MERGEN: When Congress enacts legislation, a law, it's telling an agency how to do its business. But Congress couldn't possibly include all of the fine details, the fine-grained instruction necessary for agencies to conduct their business. So the doctrine relates to how agencies fill that void in an ambiguous statute. They look at the statute, and they promulgate rules. And they say, this is what we understand Congress to have told us to do. And when a court is confronted with that interpretation, the Chevron doctrine says that it should defer to the agency so long as the agency's interpretation of the statute is reasonable. That's a very deferential standard, and it has been in place, as you note, for a long time, since 1984.

RASCOE: And so the case about the fish, about the herring that the Supreme Court will consider this term is called Loper Bright Enterprises v. Raimondo, as in Commerce Secretary Gina Raimondo. What does this case have to do with the Chevron doctrine?

MERGEN: So our fisheries are governed by a law from 1976. Regulators have understood that it's helpful to have somebody on board to see what sort of fish are being caught and if too many fish are being caught or the wrong species are being caught and to record that data. The fishermen at issue here are from Cape May, N.J., and what they're complaining about is not the actual observer because the law is crystal-clear that the agency can have an observer on your vessel. But the agency interpreted the law to require the fishermen to pay for the observer. And I think it's interesting that the case arises in this circumstance because Chevron applies so broadly, but it allows the people challenging the doctrine to tell a story about sort of hardworking fishermen, you know, further burdened by government. But I think we shouldn't lose sight that Chevron is so much more broad than this particular application.

RASCOE: But why is this a big deal? Like, why would someone not like - who doesn't like the Chevron doctrine? I would imagine it's probably companies and things like that, but who doesn't like it? And why do they want it overturned?

MERGEN: Yeah. That's a really important question because I think we shouldn't lose sight of the fact that this particular context is sort of unique. But the doctrine's applied every day in a million circumstances. The agencies are making fine-grained judgments about sort of what Congress intended and reflecting that in rules. So who would be opposed to the agency applying that expertise? I think you're right. It's really, really big corporations.

There's a movement, a part of the conservative movement, that wants to make government smaller, and they view that - this rule as empowering the government to go beyond what Congress has intended. But I would submit to you that the reality is that government needs this sort of flexibility and that when Justice Stevens wrote the decision in 1984, what he was recognizing was, one, that the agencies have a lot of expertise and that if you don't like what the agencies are doing, you vote for a different president. So the people making the decision are accountable to the American people through elections.

RASCOE: And have there been many cases when a federal agency interprets a statute in one way, and then Congress steps in and says, you're taking this too far - we didn't mean this this way? Like, have there been cases of that?

MERGEN: I mean, Congress has that ability to say to the agency, you've gone too far. And what's more, under the Congressional Review Act, they can now review regulations before they're implemented, right? So Congress has a lot of ways to make its intentions known.

RASCOE: What would happen if, you know, Congress passes a law, let's just say, about, you know, car safety and then someone disagrees with it, you know, whatever the agency does on it? What would happen if you didn't have the Chevron doctrine?

MERGEN: There's a couple of things I want to say about that. One is that Chevron - judges are busy people, especially federal judges, who are hearing these challenges. They are busy, busy people, and the doctrine allows them to focus on one aspect of the rulemaking, whether it's reasonable. And if you get rid of the doctrine, then you're asking them to sort of start from first principles in terms of, like, mastering the expertise. And I think the result of losing the Chevron doctrine will be to bog courts down and create instability. And importantly, there are several conservative law scholars who agree with that. They have told the court in amicus briefs - friend of the court briefs - that doing away with the doctrine creates instability and does away with sort of rule-of-law values in terms of consistency on the part of the courts.

RASCOE: That's Andrew Mergen, director of the Emmett Environmental Law and Policy Clinic at Harvard Law School. Thank you so much for being with us.

MERGEN: Thank you.

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Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.