A slender, silvery fish, sold for bait and canned as sardines, has the potential to play an outsize role in weakening the power of federal agencies to regulate vast areas of American life — overturning long-standing Supreme Court precedent in the process.
But the case before the high court this week is not really about the herring.
For 40 years, courts have generally deferred to the judgment of federal agencies when it comes to turning laws passed by Congress into detailed regulations designed to protect the environment, consumers and the workplace.
Now the high court is reviewing a pair of challenges to federal rules requiring commercial fishermen to pay for at-sea monitors — cases that could lead to the demise of Chevron, much as the 2022 Dobbs ruling overturned the historic Roe v. Wade ruling and eliminated the nationwide right to abortion.
The cases brought by Atlantic herring fishermen in New Jersey and Rhode Island will be argued Wednesday before a court remade by the addition of three justices nominated by President Donald Trump, whose administration put a premium on judges skeptical of federal government power.
Philip Hamburger, a Columbia Law School professor and founder of the alliance representing the Rhode Island fisherman, called it “scandalous” and unconstitutional to require judges to systematically favor one powerful party — government agencies — over any other.
“Chevron is an embarrassment and the court should get rid of it,” Hamburger said, adding that it is the duty of judges to exercise independent judgment without deference.
To prevent overfishing and promote conservation, the Trump administration initiated a program in 2020 requiring Atlantic herring fishermen to carry monitors aboard their vessels during certain trips to inspect operations and track fishing limits.
The National Marine Fisheries Service interpreted a statute passed in 1976 as giving the government the power to pass on the cost of the monitors to the fisherman.
A coalition of fishermen sued, asserting that the Magnuson-Stevens Act does not directly authorize the government to force them to pay for the $700-a-day monitors on trips that often last several days.
The industry-funded monitoring program was short-lived, ending last year due to lack of sufficient funding. The fishermen were reimbursed for all costs. Those behind the lawsuit, however, worry the plan will resurface and expand to other types of fish.