Relentless Post-Chevron—Is the Administrative State Still Winning?
In this episode of Unwritten Law, NCLA’s Mark Chenoweth, John Vecchione, and Kara Rollins are joined by Professor Eric Bolinder (Liberty University), former counsel in the landmark Loper Bright case.
They analyze the disappointing outcome in the closely watched Relentless case, where fishermen still face mandatory fees for onboard government observers—even after Chevron deference was overturned.
Professor Bolinder explains why the court’s decision ignored critical textual arguments, conflated statutory interpretation with deferential review, and risked perpetuating the very administrative power the Supreme Court sought to curb. The group also discusses new settlement negotiations in the related Loper Bright litigation and its implications for future administrative law battles.
Key topics: Administrative state, Chevron deference, statutory interpretation, APA review standards, fishing regulations, and Supreme Court oversight of agency power.
Transcript
And, um, so I, I just, uh, I, I obviously don't like the opinion, but, uh, you've read it now, what do you think, Eric?
[:I don't, I don't represent anyone in the case. I just speak for myself here. But you're at
[: [: [: [:Yeah, I'm always ready. Um, you know this. Opinion bothered me a great deal. And obviously the, the first reason it bothers me is having formerly represented fishermen for many years. It just, the injustice seems to roll on for these guys. It, it, it just e even, even after achieving a great result, Supreme Court, um, the district court here is still.
Is not ruling in their favor. So, you know, that bothers me a lot, having known and met these fishermen. And sometimes when we talk a lot about a lot of these administrative law cases, we miss the real people that are at the bottom of them. We talk about doctrines and case names and all of this, and write all kinds of fancy academic literature, and that's important.
Um, but we don't, don't wanna miss the real people who are affected by these decisions that always come out. The other reason it bothered me, um. Is the reasoning and at the risk of, of there was reasoning. I missed that. Oh,
[: [:Um, and so I, I, I wrote a paper recently, um, called, uh, litigating a Little Bright and Interpretive Challenges and Solutions for the Post Chevron era, and I took a look. Um, and a lot of it's coming out this, this fall and I took a look at a lot of lower court cases and what they're doing in the post or bright, um, era.
And if you look at a lot of cases, even cases from more left leading judges. Um, but I always, I key a lot on what judge the Par does in these cases when they're doing textual analysis now and many were doing this before, particularly in some of the conservative circuits. Um, they're really emptying the toolkit.
They're pulling out all the candidates of statutory construction. They're pulling out the dictionaries. They're trying to come out with the plain language of the meaning, uh, or the plain meaning of the language of the text that the time it was enacted. Um, they're really wrestling, which each with each word.
Um. In the statute, I taught, one, I had taught administrative law and I also taught statutory interpretation in the spring. Um, and one thing I stress to my students over and over again is that every word that Congress put in there matters a great deal. Some of them may be confusing, but we need to engage with all of the text.
And one thing I saw in this opinion is, is a lack of engagement with the text. There was sort of a broad brush at the text. Um, it ignored some of the stronger arguments, um, like Expresso, UNES, and some of the other canons that might have counseled what it would do. Really the first role of a court, uh, post Loper Bright.
And in my view, it should have always been the role of the court, is to determine what the text means and set the boundaries of the delegation to the agency. Agencies are creatures of statute. They cannot just do things without Congress, uh, you know, delegating that authority through a statute. So the first job of a court is to look at that statutory text and determine what is the bounds that were given to the agency.
So one thing that, uh, I think too much has been made of. I address this in my paper, is the idea that that, um, well, uh, it, you know, post low, it didn't really change anything because agencies still have broad discretion under statutes and it's basically just deference under another name. And if you read this opinion, you may be persuaded that that is what's actually happening.
But I really think this opinion is an outlier, um, against a lot of the other opinions I've seen because what, in what agencies may have.
[: [:And I especially didn't like the idea that it, he used the default rule and the default rule sounds a lot like deference to me.
[:No deference.
[: [:And this is actually, it's repeated in, in what we'll now call Relentless one. Um. S uh, and, and comes from the Gaful case, which Eric was involved with that, um, as well, if I recall. Yep. And what it says is like the default rule is that the regulated entity pays compliance costs. And that's just absurd because if that's the default rule.
Theoretically, there is no limit to what Cong or what agencies can require of people or costs associated with that. I mean, under his analysis, if Noah decided it was necessary and appropriate to use, um, nets that are infused with gold, um. Well, the agency decided it was necessary and appropriate and therefore you have to pay for your gold nets at, it's a little bit much,
[:That that the whole thing with scrubbers and the whole idea that you can pass costs on to the regulated party is kind of old, but the idea that the salary, the salary of a government worker is a compliance cost that we just assume goes to the regulated party has never been like, at least you could say an net is like a scrubber.
And I guess what the arbitrary capricious were there would be the gold, right? Yeah. But that they, they could like, they can say, I think everyone on this, even on this, uh, panel would say that they could say that the net size has to have certain size holes, right? So it only catches fish that are so big. I think we'd all agree.
That's probably in the administrative power
[: [:And, and, and
[:Well, I
[:In the text. So in my view, when, when the district court and nor just does not do a textual analysis, you're missing the question, the threshold question of where did the agency get this authority and where does this default rule originate from? And if we go back to the, the bare text of this statute, which is where we should begin, and what the court did not spend much time on, we need to look at the necessary and appropriate clause and what precedes it.
Right? That's a very basic. Statutory canon right. To, to look at that and if there's a catchall, all the modifiers before it. We also need to look at the grant of authority to shift fi, to shift funds. One of the big problems for the court here, and one of the big problems for the government is that the statute does contain authority to shift funding onto fishermen.
He barely addressed
[: [:You know, that regulate, you know, regulatory compliance, costs of nets or whatever have to be, you know, paid for by regulated entity. If you look at this statute specifically, that sort of disrupts that because, well, if that was true, then why did Congress need to specifically authorize the shifting of costs in these three other contexts?
That's good. And then if you look, if you delve even further into that statutory context, you can see that when Congress shifted these costs, it limited the ceiling on what these costs could be. And not to go outside the text, but if you want to, the one of the fisheries, the Pacific fishery, where they limit the percentage of cost that could be put on that fishery, it's one of the richest fisheries in the country.
Right. Uh, you know, compared to the, to the, uh, Mid-Atlantic and, and, uh, new England fisheries, no snow crab in the Atlantic. Yeah. So, I, I. The problem is, you know, we want to, we get into these esoteric conversations about default rules and this is how we usually do it. Um, and, and we're skipping the text. So where in the text does it say they can, they can, uh, they can force 'em to carry observers.
Okay. I think we can all point to that provision. That's ba right. And then the next question is, where in the Texas does it take and shift costs? And the answer is in three places.
[: [: [:And he does, and he doesn't address that at all. And I, I just, I really can't believe it because how many times have we said that in all, I mean, this was all in the brief folks that did that. The briefs all had this and, and, and the, and he decided not to address it at all.
[: [: [:Right. Professor Bollinger,
[: [:But let me read you the language from State Farm. It says an agency would be arbitrary, capricious, an agency rule, I'm sorry, would be arbitrary and capricious. If the agency has relied on factors, which Congress has not intended it to consider entirely failed to consider an important aspect of the problem, often an explanation for a decision that runs counter to the evidence before the agency.
It's so implausible that, or is so implausible that it could be ascribed, not be ascribed to a difference in view or the product of agency expertise. So basically, did the agency provide a reason explanation for the regulatory decision that it made? Um, and is that, you know, based on the evidence that's before the agency, typically this is limited to the, um.
Record that's before the agency comments, data, all of that. And did the agency fail to consider an important aspect of the problem? So to explain that in terms of, of Kara's hypothetical before where she talked about the golden nets. If there's nothing in the agency science that says you need golden nets, um, if it doesn't comport with reason decision making, and it's obviously that the agency is just doing this because it wants to have to huge, uh, regulatory cost onto a fisherman in order to bury them by having to pay for golden nets.
That's the sort of thing that could. That could fail arbitrary and capricious review. So while it has the term like hard look review and, and many of the things from the case called State Farm, um, do place a burden on the agency, this, this. This review is far more deferential. Um, and in fact now post Chevron ist is, is deferential as opposed to, uh, review of law, which is Denovo is more deferential.
So if I'm an agency litigator and the DOJ is doing this, in many cases, I want my rule to be reviewed under hard look review, right? Because traditionally courts are going to defer to the agency's exercise of its expertise in its policy making discretion under hard book review. But what I think. You see the court in this case doing and what you've seen the DOJ trying to tempt other courts into doing is to merge the State Farm hard look review with the analysis of the statutory text.
They are not the same step. They're not the same step. And even if you look at the, uh, recent Kavanaugh opinion in, um, seven county infrastructure, he goes out of his way, um, to say, Hey, listen, we're, we're talking about NEPA and all of that, but the meaning of the statute, NEPA itself is the role of the court.
The, the agency plays no role, um, in getting deference on, on what the statute says. So here, what the court should be doing is a threshold matter before it even considers the agency's reason, decision making or anything of that. Although I would submit it really does not go into a lot of detail, uh, on hard look review in this, in this decision.
Um, it needs to say, did the agency have power to act at all? Right? So is there any grant of authority to the agency to do this thing? And if there is a grant of authority for the agency to do this thing, is the agency, what are the bounds of that grant of authority?
[:Kara question next, but I will say this. I think he uses the beginning of the Magson Stevenson Act that says we protect fisheries and all the good things they're supposed to be doing. He says is a grant of power, which is also bad and we'll talk about that. But I think Kara had a
[: [:I know, exactly. Kara.
[:This third sort of category is what's at play, but. It, it, it seems to me what DOJ is pushing. I think it's part of the combination you're talking about is that, well, if we've decided it's necessary or we've decided it's necessary appropriate, as verified by the fact that we promulgated the regulation, the first instance, that's enough.
And that's the argument I'm seeing come out of DOJ now. Is that consistent with what you've been seeing?
[:They, they, when it came out, they said it helped them, but, uh, Eric, so I, since I've brought up Loper Bright and I've brought up filing it, I think we should say there's other news here and, uh, you are no longer representing the fishermen, but have you seen that there is a motion in the Loper Bright case?
[: [: [:Now, I don't know anything more that once in the joint notice. Um, but, uh, I noticed that, uh, there was a deputy, uh. Assistant Attorney General, I think, who was on the signature line, uh, for the government side. So I do wonder and hope again, I have no idea, but I wonder and hope that, that the government has kind of realized its, its error in consi in continuing to press this case.
Um, and is hopeful to settle it in, in a way that's favorable to the fishermen. Um, you know, one thing that the Trump administration has done quite well is its many executive orders on reforming, uh, regulations. Uh, you know. Criminal regulations with criminal penalties, um, regulations, um, at, at, you know, how they might be affected after West Virginia, VEPA sack at Loper Bright, all these different cases.
Um, those have been very positive moves outta the Trump administration, which is why I and many others are very confused. Um, to see the, the DOJ, which is, you know, run by Attorney General Bondy, um, to file a 28 a that's a, a letter you file, uh, when there's a new authority or something, um, in a, in a pending case in a circuit court, um, saying that Seventh County helped them and I think.
Again, um, I know people disagree with me on this. I think that's really misreading lo bright and it's really misreading seven counties because the question here, in this case, and both in, in, in relentless and in lo bright is did the agency have a statutory authority to do this? Um, now if you, if you, if the answer to that question is yes, then you move on to the arbitrary capricious in the exercise of agency discretion.
But what I see you arguing. And what I know that the, uh, plaintiffs in the other case are arguing, um, is that they don't have statutory authority at all. So to me, seven County, which is the prior question. Uh, yeah. Seven County is is about, you know, what happens once we decide an agency has statutory authority and it's exercising that statutory authority, it's also worth noting that Seven County is about a procedural statute, right?
Or a procedural requirement. And the court goes out of its way and seven County say, well, it's a procedural requirement. Like we don't, we need to get to, or. Ones with this. So I really don't see its relevance. And I think it is, again, trying to tempt courts into the error I've been talking about, which is to merge State Farm analysis with, with, um, you know, textual analysis.
We shouldn't even be thinking about State Farm until we determine and establish that the agency as statutory authority to do this thing. And in order to establish that the agency has statutory authority to do this thing, we have to do a deep and cumbersome and hard, um. A review of the text itself to look at each word and what it means.
Um, and if you look at some of Judge the Pars opinions after Lo Bright, I'll, I'll point you to one case. This is perfect example. It's a case called Mock Demares. It's a run of the mill, BIA, uh, board of Immigration Appeals Case. You know, not a, not a big. Political case. Look at the level of detail in work that Judge Depar goes into that case to determine what I think a four or five word phrase means in a statute.
He's got dictionaries, he's got cannons of construction. He's engaging all sorts of analysis. This is exactly what judges should be doing. And if you read the opinion from yesterday, you do not see that rigorous engagement with the text. You see a selective use of some canons when it's helpful to the result.
You see kind of an ignorance of other canons like expresso onus or used, generous or some of the other canons that we might say. Used to determine what, uh, a necessary and appropriate clause, uh, gives to the agency. Because if the existence of a necessary and appropriate clause means the agency can do whatever it want, then any statute that has a necessary and appropriate clause is basically an
[:And you've hit Eric, you've hit on my bet Noir, which is necessary and appropriate is always like in Mexican Gulf. It, it cabins power. It doesn't extend it. But I, I do think that we've gotta wrap this up. Um, I think that, I think that you're. Spot on in your analysis of this case. But I will also say, I look forward to reading your piece because I think that the Sixth Circuit has done the most, uh, explication of how you do statutes after Loper Bright.
Like they seem to be the, the, uh, circuit that's really addressing this, but that's like. Just a, a conversation for another time, but I'll go around, I'll go, I'll start with Kara. Final thoughts? Oh, final. Oh. Does anyone have any, do you have any further views on the fact that they're holding us in a band to settle it?
What? Uh, why wouldn't they just withdraw the rule? Could someone please, I'll ask that last question. Why aren't they withdrawing the rule? Kara? First,
[:And so I take it as they wanna keep their options open. If they were to retract the whole rule, it stops this whole program. Altogether for all fisheries in the future. So I think it might just be too much of a chunk for them.
[: [:If, if this, uh, if the, if at the end of the day the Trump administration is responsible for judicial decisions that cause. Our clients and the Loper Bright folks to have to pay the costs of onboard observers. That will be an utter embarrassment for the Trump administration.
[: [:Now I, I wanna be careful how you talk about this practice, but you saw this some somewhat during the Obama administration. If you settle a case on a rule, you can just stipulate to a settlement in the court and then the rule is vacated as part of the settlement. Now, there's a lot of questions about the appropriateness of that and whether it evades the a PA and I.
I don't wanna get into that here. Whereas if you withdraw the rule itself, you need to go through notice and comment rulemaking. And the rulemaking procedure under the Magnuson Stevens Act is, as you know, far more complicated than your usual notice and comment rulemaking. So it may be easy. This is me, this is my Roy view, just to be clear.
Okay? Okay. Give me a rose. I,
[: [:I mean, um, so that's my speculation. But again, I have, I have no inside information or anything. I'm just, I'm just guessing from reading that. Joint motion that I saw today. But, um, you know, mark your point about whether this, this holds, I mean if this holds, one of the things that I thought was really interesting about the judge's opinion is that he basically just says the First Circuit got it right the first time around.
I reaffirmed that here. I think he said that explicitly. And if the First Circuit got it, so right the first time around on the statutory analysis, then why did the Supreme Court grant review?
[:Uh, professor Bollinger, thank you for being with us and uh, of course, thank you for having me and we'll, we'll see you next time on Unwritten Law,
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