WHEN CODA WON BEST PICTURE at the 2022 Academy Awards, viewers were surprised. CODA is a quiet film about a deaf fishing family in Massachusetts. It stars an unknown lead actress and was made for under $10 million—a paltry budget, by Hollywood standards. Yet it beat out slick, star-studded movies like Dune, The Power of the Dog, and Don’t Look Up.
During his acceptance speech, CODA’s producer said it hadn’t been an easy film to shoot. On day one, “our cast and crew were supposed to be at sea at 4:00 a.m., fishing, when we were told a giant storm was about to hit us,” he said. He thanked the film’s incredible crew, “including the fishermen community in Gloucester.”
Immediately after the Oscars broadcast, Google searches for CODA spiked. Apple TV, which owns distribution rights, reported that CODA was now the most-watched film on their platform.
The fact that so many Americans have seen CODA is gratifying for two reasons.
One, it’s a small, crowd-pleasing drama about a young woman from a working-class family of deaf fishermen.
Two, the film includes a plotline about the family being forced to bring a federal official onto their fishing boat. That’s something that happens to real fishermen—and it’s now the centerpiece of an upcoming case at the Supreme Court.
Monitoring Fishermen
IN CODA, THE FISHERMEN are outraged when they find out they must bring “at-sea monitors,” or federal observers, onto their boats while they work.
“The feds are insisting,” one character, the fishermen’s processor at the wharf, tells them. “Observers are gonna come onto your boat to make sure you’re not breaking any rules.”
“That’s outta my pocket?” a fisherman asks incredulously when he learns fishermen must pay the salaries of monitors who are observing them. “So I gotta pay to have a spy on my boat?”
The cost, the fishermen quickly find out, is hundreds of dollars per day. “Come on,” one fisherman protests. “That’s gonna kill us.”
That’s more than we make in a day, the main character’s father, a deaf fisherman, says in sign language.
When the monitor spends the day on the deaf family’s fishing boat, she’s immediately a burden. She interrogates the father and son. She interrupts their fishing to ask for maintenance records. She ends up getting the father’s license suspended. The family, who already is struggling to make ends meet, is devastated.
The reality is as bad as the film.
A 2007 law says the National Marine Fisheries Service can force commercial fishing boats to bring a federal monitor onboard while fishing, but it doesn’t specify who should pay the monitor’s salary.
You might think it obvious: Federal monitors should be paid by the federal agency.
But the National Marine Fisheries Service disagrees. It interprets the law to mean that fishermen should pay the $700-per-day salary of monitors who are surveilling them.
For fishermen, it’s a double blow. Most commercial fishing vessels are small. Making room for a federal official can mean leaving behind a deckhand, which limits the day’s haul. Having to pay the salary of the monitor—who is watching while you work to ensure your compliance with regulations—lowers profits further, up to 20% by some estimates.
Put yourself in fishermen’s shoes. Imagine having to work all day with a federal observer mere feet away, monitoring everything you do. Now imagine you have to pay that person’s salary.
For Loper Bright Enterprises, a New Jersey-based fishing company, making fishermen foot the bill for federal monitors “adds insult to injury.” The company filed a lawsuit, arguing that Congress never gave the National Marine Fisheries Service permission to transfer the cost of monitoring to fishermen.
The Fishermen’s Lawsuit
LOPER BRIGHT ENTERPRISES’ case might seem like it affects only certain fishermen. But it’s far bigger than it seems.
First, if federal agencies can simply shift costs onto regulated people whenever they want, there are no practical constraints on what an agency can do. Agency budgets, as bloated as they are, provide at least some fiscal limits on regulatory activity. An agency can’t afford to send federal officials to every business to enforce compliance. But what if an agency decides it can just make businesses pay? Suddenly, the surveillance possibilities are virtually limitless.
That’s apparently what happened at the National Marine Fisheries Service: The agency experienced budget shortfalls and couldn’t afford the extra monitoring it wanted to do. So instead of cutting back on its regulatory agenda, it decided to make fishermen pony up. The agency’s own documents reveal that it knew forcing fishermen to pay monitors’ salaries was “highly sensitive” due to the “socioeconomic conditions of the fleets that must bear the cost.” But it did it anyway.
Second—and more importantly—the Loper case is fundamentally about whether courts should defer to federal agencies’ interpretation of the law. In other words, it’s about Chevron Deference.
A 1984 Precedent
SINCE MARBURY V. MADISON, the Supreme Court has exercised its power to review the legal basis of actions taken by the legislative and executive branches. The judiciary, as Chief Justice John Marshall established, says what the law is.
But in its 1984 Chevron v. Natural Resources Defense Council decision, the Supreme Court said it would defer to federal agencies’ interpretations of ambiguous laws, as long as the interpretations were “based on a permissible construction of the statute.” At first, the decision didn’t seem significant; Justice John Paul Stevens, who authored it, didn’t think it was a major departure from precedent. But executive branch attorneys saw it as a “godsend,” former Deputy Solicitor General Thomas Merrill writes in The Story of Chevron: The Making of an Accidental Landmark. The decision “was quickly seized on as a kind of mantra by lawyers in the Justice Department,” Merrill says, “who pushed relentlessly to capitalize on the perceived advantages the decision presented.” Under a broad reading of Chevron, agencies could take omissions in statutes as permission to fill in the blanks themselves—and courts would let them.
When courts cite Chevron, individuals and businesses are the ones who lose.
For example, take Buffington v. McDonough. In Buffington, the courts allowed the Department of Veterans Affairs to cheat an Air Force veteran out of three years of disability benefits he was rightfully owed. The VA claimed the veteran was supposed to formally restart his benefits after they were temporarily paused when his Air National Guard unit was called up. Even though by law the VA should have paid the benefits, the courts deferred to the VA’s interpretation and said it didn’t have to pay.
Or look at Pacific Legal Foundation’s case representing Arlen Foster against the Department of Agriculture. Arlen is a third-generation farmer in South Dakota. Back in 1936, Arlen’s father planted trees on the south side of the farm. Today the trees are quite tall, and every winter, they collect deep snow drifts that slowly melt until a puddle collects in a low spot on the farm field. In 2011, incredibly, the Natural Resources Conservation Service decided that they could regulate the puddle as a wetland under the Swampbuster Act. Worse, after Arlen hired experts and requested a review of the wetland designation, the agency repeatedly refused. It had a statutory obligation to review it under Swampbuster, but the agency interpreted the law in a way that allowed it to avoid its legal obligations. Nonetheless, the Eighth Circuit Court of Appeals cited Chevron and deferred to the agency.
There are countless other examples, stretching back decades—cases in which someone asked the courts to stop an agency from wrongfully interpreting the law, and the courts, citing Chevron, simply deferred to the agency.
Coming to the Supreme Court
WHILE LOWER COURTS CONTINUE to cite Chevron, the Supreme Court has refrained from applying it over the past five years. Even Chevron proponents have noted that it’s fallen out of favor with the current Supreme Court Justices. Yet Justices also refused to hear several recent cases which would have given the Court an opportunity to overturn Chevron.
Justice Clarence Thomas dissented from one such cert denial in 2020, arguing the Court should take the opportunity to review the controversial precedent. Chevron, he wrote, “rests on the fiction that silent or ambiguous statutes are an implicit delegation from Congress to agencies… Chevron compels judges to abdicate the judicial power without constitutional sanction.”
Last year, Justice Neil Gorsuch dissented from another cert denial. When courts apply a broad reading of Chevron, Justice Gorsuch wrote,
we outsource our interpretive responsibilities. Rather than say what the law is, we tell those who come before us to go ask a bureaucrat… We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else. In these ways, a maximalist account of Chevron risks turning Marbury on its head.
Finally, this year, the Supreme Court agreed to hear a case that could put Chevron on the chopping block… Loper Bright Enterprises v. Raimondo, which Cause of Action petitioned to the Court after the D.C. Circuit Court invoked Chevron in ruling against the fishermen.
Pacific Legal Foundation filed an amicus brief at the Supreme Court in support of Loper Bright. We also filed a petition for the Court to review our Foster v. USDA case. If the Court rules for Loper Bright and overturns Chevron, it likely will grant, vacate, and remand similar Chevron cases among its petitions—which means Arlen Foster would be among the first to experience the benefits of ending Chevron.
The Justices will hear oral arguments in Loper during the upcoming term. (Justice Ketanji Brown Jackson will recuse herself from the case because she was on the D.C. Circuit Court panel that ruled against the fishing company.)
A Fitting End for Chevron
FOR EVERYONE IN THE COUNTRY worried that unelected bureaucrats in the executive branch have too much power, Loper coming to the Supreme Court is a big moment. A case that began with monitoring fishing boats could now undo a doctrine the administrative state relies on to ratchet up its own power
Perhaps that makes sense. Atlantic fisheries are among America’s oldest industries, and they’re being smothered by federal regulations. If the showdown over Chevron could happen anywhere, it should happen in a case like this—where the cost of federal overreach for individuals is so evident, it was featured in an Oscar-winning movie.
One bit of trivia from the making of the movie CODA: Because much of it was filmed on fishing boats in the waters off Massachusetts, the film crew had to follow all the same regulations that normal commercial fishermen in the Atlantic follow—which means that one day, the CODA film crew actually had to bring a federal monitor on board. Because the boat could hold only ten people, the federal monitor displaced a member of the film crew.
For the crew, the incident likely confirmed that the unfair burden borne by Atlantic fishermen was a story worth telling.