Loper Bright Enterprises is a family-owned herring fishing company that operates in New England waters. Herring fishing is hard work on a small boat, and every inch of space is valuable for storing supplies, fishermen, and the catch. Nonetheless, a National Marine Fisheries Service (“NMFS”) regulation requires that herring fishing boats allow an additional person on board to serve as a monitor, tracking compliance with federal regulations. Not only does this monitor take up limited space, but the fishermen must also pay the monitor’s salary of around $700 per day. Overall, the regulation reduces fishing profits by about 20%. If fishing boats decline to carry a monitor, they are prohibited from fishing for herring.

Loper Bright and other fisheries sued to challenge this rule, arguing that the NMFS lacked statutory authority to force them to pay for these monitors. Although the statute at issue says nothing about industry funding for government monitors, the district court surprisingly held that the statute clearly authorized the rule. Loper Bright appealed, and the D.C. Circuit held that the statute was ambiguous but deferred to the agency’s interpretation under the Chevron doctrine. Loper Bright has now asked the Supreme Court to grant review of its case, and Cato—joined by the Liberty Justice Center—has filed an amicus brief supporting that petition.

In our brief, we urge the Supreme Court to take this case as an opportunity to reconsider and overrule Chevron v. NRDC (1984), a controversial decision that forces courts to defer to an agency’s interpretation of “ambiguous” statutes. Chevron requires a court to ask first if a statute is unambiguous. If the statute is clear, then the court applies that clear meaning. If, however, the statute is ambiguous, the court moves to the next step and defers to the agency’s interpretation so long as it is reasonable, even if it is not the best interpretation.

Chevron is unconstitutional for several reasons. It gives judicial power—the power to interpret the meaning of the law—to the administrative state within the Executive Branch. The Constitution, however, grants all judicial power to the Judicial Branch. Chevron is also unconstitutional because it biases the courts towards the agencies, stripping the judiciary of impartiality and denying litigants basic due process. But a third reason, and the focus of our brief, is that Chevron deference is ahistorical, arising not out of the original understanding of the Constitution but rather out of the administrative bloat of the New Deal era.

As our brief explains, in the nineteenth and early twentieth centuries, courts only gave the executive branch’s interpretation of a statute persuasive weight if it was long-held and was originally made contemporaneously with the enactment of the statute. This early historical practice in the courts was very different from the modern Chevron deference, which gives the agency’s interpretation nearly binding authority even if that interpretation was made as recently as during the course of the litigation itself. Chevron deference, along with other versions of mid-twentieth century deference, only arose because of the New Deal’s agency explosion. It is a departure from the traditional role of courts, not a continuation of it.

Our brief also shows, through an empirical analysis of over 140 recent appellate cases, that courts of appeals still defer under Chevron with regularity, despite the Supreme Court’s increasing reluctance to invoke the doctrine. Chevron will not fade away completely until the Supreme Court overrules it. The Supreme Court should put an end to Chevron deference because it is ahistorical, because it unconstitutionally gives judicial power to the executive branch, and because it biases the judiciary in favor of the government. Loper Bright’s case is a perfect opportunity for the Supreme Court to overrule Chevron and reclaim the judiciary’s independence.