Have we entered a new era for government regulation?

Summary

The Big Dig Presents: Catching The Codfather – Bonus Episode: Have we entered a new era for government regulation? (March 25, 2026)

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Overview

In this special bonus episode of Catching the Codfather, host Ian Coss explores the seismic shift in federal government regulation brought about by the Supreme Court's 2024 decision to overturn the Chevron doctrine. Featuring an in-depth interview with John Vecchione, a key litigator in the companion Relentless case, the episode traces how a group of New England fishermen set in motion a Supreme Court-level challenge with national repercussions. The discussion unpacks the legal history of Chevron deference, why the fishing cases became the vehicle for dismantling it, and what the post-Chevron landscape means for government agencies, the courts, Congress, and individuals. Along the way, the episode offers insight into power, law, and who really decides the rules that govern work, industry, and the environment.

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Key Discussion Points & Insights

1. How Fishermen Brought Down Chevron

• Background of Cases ([02:02]–[11:01]):
  • John Vecchione explains his involvement: first representing David Gaethel, a New England fisherman challenging NOAA's rules requiring fishermen to pay for government observers on their boats. Original case was dismissed due to a missed statute of limitations, but Congress later appropriated funds to cover observers for groundfish.
  • The emotional resonance of small business fishermen was deliberately chosen. As Vecchione puts it, “If you really want to capture the imagination of the public and of the jurists, it helps to have a situation that seems so unjust and crazy.” ([09:03]–[09:46])
• Relentless & Loper Bright Cases ([10:15]–[12:21]):
  • Vecchione describes how two cases (Relentless and Loper Bright), filed in different appellate circuits, sought a “circuit split” to attract Supreme Court review.
  • The cases challenged the core of Chevron deference, which historically tilted court rulings in favor of agencies when statutory language was ambiguous.

2. Understanding Chevron Deference

• Chevron’s Impact ([13:24]–[17:30]):

  • Chevron gave agencies significant leeway; courts would defer to “reasonable” interpretations of statute ambiguities.
  • Used to expedite overwhelmed district court dockets and cited in cases “more than any other case than Marbury vs. Madison.” ([15:01])
  • Law could "turn 180 degrees" from administration to administration — a major frustration for consistency and predictability in law.

• Why Use the Fishing Cases? ([08:16]–[09:46])

  • Host and guest joke about choosing relatable, sympathetic plaintiffs: “I think what I'm trying to say is it's hell. Yes.” (Vecchione, [09:46])

3. Supreme Court Dynamics & Overturning Chevron

• How the Supreme Court Took Both Cases ([19:54]–[21:25]):

  • Because Justice Ketanji Brown Jackson had to recuse from Loper Bright (after sitting on an earlier panel), Relentless was also taken up to allow all nine justices to participate.
  • Vecchione recalls learning the case would be heard: “I was just absolutely over the moon. My client, I was over the moon.” ([21:28])

• At the Oral Arguments ([22:17]–[23:42]):

  • Vecchione describes Gorsuch as “very offended by what Chevron had wrought,” while justices from the liberal wing emphasized agency expertise.
  • “It was not a question of counting fish. It was a question of who's going to pay for the guys who count the fish. Which is not really an expertise thing.” ([23:30])

4. The Post-Chevron Landscape

• Immediate Judicial Effects ([25:19]–[28:17]):

  • Odds of defeating an agency in court have improved from 10% to about 40%, but agencies still win most cases.
  • Courts are reluctant to overturn longstanding (original) regulations, granting implicit respect for bureaucratic continuity.

• Examples of Post-Chevron Litigation ([28:26]–[32:28]):

  • McLaughlin Chiropractic v. McKesson: Supreme Court rejects agency's narrow interpretation of what counts as a “fax,” allowing email-fax recipients to sue. “That case was worth hundreds of millions of dollars.” ([30:10])
  • Chamber of Commerce v. FTC: Court overturns new, more costly FTC paperwork requirements due to lack of clear statutory authority.

• Effects on the Executive Branch ([32:28]–[35:18]):

  • Agencies now must write rules more carefully, using clearer statutory authority.
  • Administration finds its hands tied compared to the pre-Chevron era — especially in areas like tariffs.

• Congressional Response ([35:18]–[37:28]):

  • Some in Congress are eager to write clearer, more detailed laws. However, “this is the least active lawmaking Congress that I can ever remember.” ([35:54])
  • Political gridlock and executive dominance mean little new major legislation is passing to clarify statutes.

• Who is Empowered Now? ([37:53]–[38:36]):

  • “It empowers the individual American... because just like my fishermen and Loper Bright fishermen, they had no chance before... but now... you just have a much wider [chance].” ([37:53])

5. The Fate of the Fishermen & What's Next

• Current Status of Fishermen's Cases ([38:36]–[41:21]):

  • Loper Bright: Settlement talks ongoing, rule held in abeyance.
  • Relentless: Lost at district level post-Chevron, appeal ongoing. Regulation is blocked in practice.

• Quirky Endnote: ([40:27]–[40:45])

  • The required payments for observers have not occurred because quotas for herring are now so low.

• Upcoming Litigation ([41:21]–[42:27]):

  • Vecchione eyeing challenges to presidential tariff authority and SEC surveillance powers as next major frontiers for the post-Chevron regime.

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Notable Quotes

• “If you really want to capture the imagination of the public and of the jurists, it helps to have a situation that seems so unjust and crazy.” – John Vecchione ([09:03])
• “Chevron cited more than any other case than Marbury vs Madison. That gives you how. How much the courts relied on it and agencies relied on it.” – John Vecchione ([15:01])
• “Regulation, administrative law is this kind of nebulous area that sits between the three branches of government... In theory, Congress makes laws, but really Congress doesn't have the attention span and capacity to truly roll up their sleeves and write every nitty gritty detail and rule of life.” – Ian Coss ([17:30])
• “I just don't think it's been a disaster. Because what we've also seen is that... regulations are being upheld all the time. They're just regulations that hew a little closer to the statute, which I don't think's a bad thing.” – John Vecchione ([32:00])
• “Congress has asked me. I've spoken twice to various congressional committees on what l' approbriety is and what kind of language they should be using in statutes. There is a hunger to know how to legislate on these issues and how to make things clear.” – John Vecchione ([35:25])
• “It empowers the individual American... because just like my fishermen and Loper Bright fishermen, they had no chance before.” – John Vecchione ([37:53])

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Timestamps for Key Segments

• [02:02] John Vecchione’s entry into fishing litigation and the observer rule backstory
• [08:16] The rationale for choosing fishermen as plaintiffs
• [10:15] Birth of the Relentless and Loper Bright cases
• [13:24] How Chevron deference shaped federal regulation for decades
• [19:54] How the Supreme Court took both cases (and the Ketanji Brown Jackson recusal issue)
• [22:17] Supreme Court oral argument scene and dynamics
• [25:19] The post-Chevron world: court cases and practical impacts
• [28:26] Examples of regulations challenged post-Chevron
• [32:28] Executive branch response under the new regime
• [35:18] Congressional confusion and inertia
• [37:53] Empowerment of individuals and the limits of judicial reform
• [38:36] Update on Relentless and Loper Bright fishermen
• [41:21] New frontiers in regulatory litigation post-Chevron

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Tone & Final Reflections

The conversation strikes a balance between irreverent (self-aware humor about legal tactics and bureaucracy) and earnest, with real passion for structural legal reform and the impacts on working people. The episode foregrounds the legal mechanics and historical significance but does not shy away from the political and cultural complexity underlying who makes the rules in America.

Ian Coss’s closing note emphasizes the contested nature of these questions, promising further exploration of what government regulation means for ordinary Americans and inviting listeners to consult a wider array of legal opinions.

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End of Summary

Transcript

[A]

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[A]

I'm Ian Koss and welcome to the first of two bonus episodes for our series, Catching the Codfather. So we ended our final chapter of the series talking about a landmark Supreme Court case, one that could change how the entire federal government makes regulation of all kinds of but the case was brought by a group of fishermen working under the same system of regulations we've traced throughout the series. And John Vecchione is one of the lawyers representing those fishermen. So tell me about your background. What's that boat behind you? I see?

[C]

All right, so behind me is the actual Relentless, which was the companion case to Loper Bright. They argued the same day and I was counsel of record for Relentless, meaning I filed the complaint and got it to the Supreme Court.

[A]

I talked to John earlier this year right as we launched the season, because I wanted an update. What has the actual impact been of that Supreme Court ruling? Has it changed the way courts are treating cases about regulation? What about the new presidential administration? Has it changed how they are writing new regulations? And whatever happened to the fishermen who brought the case in the first place? It turns out this story has continued to unfold in interesting ways, and John is not in any way done with his work of challenging what he sees as Unreasonable government regulation. In fact, from his post at the New Civil Liberties alliance, he is personally involved with some very high profile cases playing out in the courts right now that you have probably heard about. So today we are going to cover that from the personal perspective of a litigator at the center of it and how it was that a group of fishermen set all this change in motion. But before we jump into the conversation, a quick review of terms that will come up. If you've listened to episode six of the series, these should be familiar. But to be safe, the Chevron doctrine, or Chevron Deference, refers to a Supreme Court precedent from back in the 1980s that basically gave regulatory agencies like NOAA a lot of latitude in how they make rul. Okay. Loper bright is the 2024 case that challenged and ultimately overturned Chevron. And Relentless, as John mentioned, at the top, was the companion case that got bundled together with Loperbright and was argued at the same time. We started by talking about those fishing cases and the specific regulation those two cases were challenging. So how'd you get interest in these fisheries cases in the first place?

[C]

I had joined an organization called Cause of action back in 2016, and they represented a fisherman up in New England named Gaethal.

[A]

David Gaethal, who listeners will remember.

[C]

Yes. So you've had him on.

[A]

I have, yes.

[C]

Okay. So David came to us with this regulation that had been passed by. Basically how it works. I may just use one of the agencies, but NOAH and National Marine Fisheries and Commerce kind of issue the regulations in combination. So I'll either say Commerce or noaa, something like that.

[A]

I dealt with the same issue in the podcast. I mostly just simplify it and say noaa. But yes, understood. It's Department of Commerce, includes noaa, includes National Marine Fisheries. Lots of acronyms.

[C]

Yes. And there's a complicated way they interrelate. Doesn't matter here. What matters is, is that in 1990, the Magnuson Stevenson act was amended that said NOAA may put observers on the fishing boats. And no one opposed that. I just want to say there was no lobbying about it. Everyone said, well, yeah, I guess we do need observers. I guess the government's allowed to do that. So no one objected. Twenty years later, the agency decided that they didn't like how many observers Congress was funding. It was a government job. So they went and they issued a regulation that said NOAA would put more observers in. And those observers had to be paid by the fishermen. They had to contract with the observers who are doing a government job. I mean, Listeners have to know the observers don't do anything for the boat. They just make sure the right fish size and the right fish species. And sometimes they do scientific measuring for the government. They're government workers, and they're protected as government workers by federal law. So there's no argument here that these guys are somehow doing something for the boat.

[A]

Sure.

[C]

Anyway, so David comes to us, but unfortunately he came to us. What NOAA and Commerce did was they issued the regulation and published it. But under the law, the statute of limitations to bring a case under this law runs. You have to file it within 30 days of it appearing in the Federal Register. Now, I am pretty sure that you don't have any fishermen who read the Federal Register every day. I'm pretty sure no fisherman in Massachusetts does that.

[A]

I wouldn't. I wouldn't be so sure. But okay, probably not.

[C]

Some may have people who do it, but maybe, you know, they have somebody who looks. But that's not a thing for your regular fishermen.

[A]

Yes, that's fair.

[C]

By delaying the date when they were going to actually enforce it, everybody is going to get upset when they actually have to start paying these observers. That didn't happen for three or four years. So the upshot was we brought a case on David's behalf at Cause of Action. We litigated it out of New Hampshire, where he was, and then we went to the First Circuit, which is the Federal Circuit of Appeals for all of you New England people and Puerto Rico for some reason. And there they did something very interesting. They first said the statute of limitations ran, so you're out of luck. You can't bring this case. Mr. Gaethel. But then they did something that they almost never do, which has been useful for the fishermen of New England. They put in their order, they said, you know, this issue of whether or not these observers can be paid by the fishermen under the Magnuson Stevenson act is very unsettled, and Congress should address this before it ever gets to us again. And the way Congress addressed that for those ground fish anyway, for that particular fishery that was the subject of that litigation, they always funded it thereafter. They never allowed Noah to do it. So nobody ever paid after that because there was Congressional, through appropriations, There was congressional action. So that's how I got into these cases.

[A]

This is speculation on my part, but I was always curious that it was this fishery case. Basically, why fisheries? Because anybody could have challenged the constitutional legality of Chevron. It could have come from any number of businesses, are regulated. And to me, it always seemed like there is a kind of emotional power of fishermen that these are really independent small businesses. This is not a multinational oil company. And I think we want to root for them. Everybody wants to support the fishermen who catch the fish that we eat. And so I'm wondering on your part, was that part of the thinking to find a plaintiff who people could relate

[C]

with and you can be part of intake for us? Because that is exactly right. Not only a cause of action, but you want to, you know, these administrative regulations have real life effects. But if you really want to capture the imagination of the public and of the jurists, it helps to have a situation that seems so unjust and crazy. And here the fact that these fishermen aren't doing anything, they didn't oppose observers, they didn't do anything, and yet now they're paying and they never got to go to Congress. So I think you're absolutely right. The answer to your question is yes. But I think what I'm trying to say is it's hell. Yes.

[A]

So you talked about how you brought this case with David Gaethal that was thrown out because he brought it too late.

[C]

Yes.

[A]

And then a few years later, in fact, as Carlos Rafael is sitting in prison, there's a new round of regulation about observers. And that new regulation opens the door for a new round of litigation. All right, so pick up the story from there. How do you then start your next lawsuit?

[C]

Okay, so Cause of Action was going to do other things, and I, I moved to ncla. So NCLA is New Civil Liberties Alliance.

[A]

Thank you.

[C]

And we have been around for about seven years. Seven, eight years now. And Cause of Action was just a little older than us. They kept the loper bright fishermen, but they had decided not to take any new cases after that. So I came to NCLA and I had the other fishermen in Relentless. And I like our names are both relentless persistence, you know, good names for a case. That's why I think I thought the Cause of Action guys filed a little before me. And so that's why their case is first in the name. But I think Relentless would have been a better name.

[A]

Loperbrite does not really have the same ring to it.

[C]

So in any event, it's also the name of fishing vessel, though. And so we decided they filed in D.C. which is sort of the premier court for administrative law. And I filed in the First Circuit. My boats are in Rhode island. And we decide to go up. One way you get to the Supreme Court is you get a circuit split. One circuit says one thing, one circuit says another. Thing and then the Supreme Court has to take it. So we knew that if we got any kind of circuit split, that is what would happen.

[A]

And you were aiming for that by filing in these two circuits simultaneously?

[C]

I certainly was. So, yes. I think the answer to that is yes.

[A]

And what happened?

[C]

Well, we lost. What happened is because of chevron in the D.C. district Court, that judge actually just said it's clear they can do this. But the D.C. circuit then said, we think it's ambiguous. And the Chevron deference was that if the statute's ambiguous, the administrative agency gets deference when it says what the law allows. So you go into court and it's not an even field. If it's ambiguous, the person suing the government is at a disadvantage because they can tell the judge what the law is. That's the real unfairness of Chevron.

[A]

So anytime, if it's a tie, the tie goes to the agency.

[C]

Correct. Even more than a tie. A little more than that. Because as long as their interpretation isn't unreasonable, and you gotta do a lot to be unreasonable in Washington. So I mean, as long as it is unreasonable, the court had to go along with it. So in the D.C. circuit, they go up and the D.C. circuit, 2 to 1. It was a three judge panel. But sitting on the panel originally was Judge Jackson. That's gonna be important in a minute. And John D. Brown Jackson now, Justice Jackson. Correct. And Judge Srinivasan comes in and he's on the panel that writes the opinion. And he and another judge said, look, it's ambiguous. Under the Supreme Court, Chevron rules, the agency wins. And I have a pet theory that Judge Srinivasan has been trying to get the Chevron issue up to the Supreme Court and have him say, yes, it's still there, or no, it's not for a while. And they've been ducking him, but they didn't duck him here.

[A]

Meanwhile, just to zoom out for one second, how long you've referenced these different judges who have been trying to get get Chevron up to the Supreme Court. How long has this kind of jockeying around Chevron been going on? I mean, that precedent goes back to the 80s.

[C]

Yes.

[A]

Is it ever since then, that there. Okay.

[C]

Nope. No, it was not. When it came out, first of all, it was six justices, so it wasn't even the nine they had to recuse. I think so many people had stock in Chevron that they had to go out. So it was a 6, 60 decision, no dissents. And I don't think Justice Stevens knew what he was creating. And there was no split along ideological lines. And famously, Justice Scalia was a big supporter of it originally. But what happened was, I think this goes by the. You give them an inch and they'll take a mile. And what happened was because ambiguity allowed the agencies to do whatever they thought was reasonable. When administrations changed, from the 80s all the way up until now, a written law could turn in what it meant 180 degrees. It could mean one thing under one administration and one thing under another administration. And to the legal and judicial mind, that's not law. That's not what law means. Law doesn't change without congressional action. So Chevron cited more than any other case than Marbury vs Madison. That gives you how. How much the courts relied on it and agencies relied on it.

[A]

So your read at this point is that throughout the federal judiciary, there is a growing frustration with Chevron, but at the district court level, they feel their hands are tied, that we have to honor the Supreme Court's ruling on this. And until they hand down some clarity, this is the world we work in.

[C]

That's right. And not only there's two, there's sort of a negative side. The district courts are swamped. Do you know how much a New York or a Boston or a San Francisco judge has on his plate? So if he can find ambiguity, he can rule on the case pretty darn quick. So not only are they bound, but they are.

[A]

So it's kind of a shortcut.

[C]

Yes, exactly. So the Supreme Court and Justice Gorsuch got lambasted a little bit because in a previous case, someone tried to get Chevron up there, and he says, well, we don't use it much. Well, yeah, the Supreme Court doesn't use it much, but the district courts do constantly. And same with the appellate courts to just a slightly different degree. Yes, yes. It was a huge tool for clearing your docket.

[A]

Give me a sense of the scale of the. You mentioned it is the most cited Supreme Court ruling other than Marbury vs Madison. Marbury vs Madison. What does that mean? How many cases a year are we talking? Or what are the kinds of rules that this is upholding? Can you give me any other sense of just the scale of the impact?

[C]

So it started to be used by every administration, Republican and Democrat, for whatever they were doing. They would always claim ambiguity first, then Chevron deference, and then, ta da, we win. So that's why it got cited so much, because the Justice Department would rely on it all the time. It was the tush push of administrative Law, you know, it was unstoppable. So I think that's why it got big and it covered everything. Environmental laws, SEC regulations of securities, regulations of energy, regulations of health and human services, national lands, everything you can possibly think of. If they could find an ambiguity, they could win on that case as long as they were reasonable. I mean, and reasonable just means they couldn't make you tie one hand behind your back and hop around or anything because they wanted to. But if it related to what their topic was, they could usually win.

[A]

Yeah, I get the sense, looking over the larger sweep of history, that regulation, administrative law is this kind of nebulous area that sits between the three branches of government. And it kind of gets passed around a little bit. In theory, Congress makes laws, but really Congress doesn't have the attention span and capacity to truly roll up their sleeves and write every nitty gritty detail and rule of life. And so they delegate some power to the agencies. And then sometimes the courts step in and there's sort of this hot potato of like who's actually going to decide how many fish we can catch, where you can drill for oil, what words you can say on the radio. And so I guess, what's wrong with saying, let's delegate that to these bureaucrats who do have subject area expertise, who do have the focus and attention span on these specific issues. Why is that a bad thing?

[C]

All right, I'll give you two answers. The first answer is Loper, bright and relentless still allow that to happen? Just Congress has to be clear about it. So, for instance, I never bring cases on fish quotas because Magnuson Stevenson act says the secretary shall have power to decide what the fish quotas are. Right.

[A]

It's pretty unambiguous.

[C]

It's unambiguous that they wanted for the reasons you just said, the fisheries people to make that decision and not them. Right. So all that Loperbright and relentless ask is that they do it clearly. So railroad rates, fish quotas, tons of things like this. I have a case now where how much water can be in your washing machine and dishwasher. Congress put that in a statute, but then the Department of Energy wanted to lower it and we said, no, no, no using Loper, Brad. We said, wait a second. Congress actually did what you wanted, lowered the amount of water in dishwashers and washing machines and now you're lowering them more when it doesn't say you can do that. So it's that kind of thing. When Congress has either said the amount, then the agencies can't change it. Because it's in a statute, you don't have law change 180 degrees. But if they've told them, hey, you get to decide what the amounts people charge to go into national parks are, well, they get to do that.

[A]

So let's go back to the story of your case. How did you hear that the fishermen you were representing were going to have their case heard before the Supreme Court?

[C]

Oh, yeah. And this is where Justice Jackson comes in. So Loper Bright had been brought and we had filed NCLA on behalf of our clients. Relentless had filed an amicus brief, which is a friend of the court brief, telling the Supreme Court they should take that case. And they did. And so we're like, ah, that's great. But now probably our petition isn't going to be heard because now they got this issue. But they did take our case. And the reason they took our case is because, for reasons I am unclear on, because I don't think it is a conflict if you sat on the panel of an appellate court on a case the Supreme Court takes, even if you didn't rule on it, even if you didn't do anything in the opinion, you are recused from the case. So Loper Bright would only have eight justices sitting on it. So in order to remedy.

[A]

Because Ketanji Brown Jackson had been on the district court when it was on its way up.

[C]

Correct. So they take Relentless so that she can sit and listen to the arguments and then be on the Loper Bright Relentless case. I mean, I think.

[A]

Is that Robert's call?

[C]

No, it's the court itself. It's just a long standing rule of the court. So that's what happened. That's why it happened. I always say it's because my petition for cert. Was so great, but that's the real reason.

[A]

Do you remember where you were when you got the news?

[C]

Yeah, yeah. I was sitting right next to where I'm sitting right now. I got a notice from Supreme Court. It came across on the ecf and I was like, holy mackerel.

[A]

Wait, what's ecf?

[C]

Oh, the electronic mail service. They have to tell you things. And I was just absolutely over the moon. My client, I was over the moon. And so then we. But it was very short because they'd taken our case after very short briefing period. So we really had to scramble. And we got all the briefing in and we went. We argued it the same day and it came out June 28, 2024, right at the. Right at the end of the. Right at the end of the Term

[A]

before we get to the ruling. Were you there for the oral arguments?

[C]

Oh, yeah, I was at council table. Yeah. Yes, yes, I was there.

[A]

Can you set the scene for that and what you were reading from the justices and their questions?

[C]

Yeah. The Supreme Court is one of the most intimate courts in the United States. I've practiced for 35 years in all the federal courts. Pretty much, I've been everywhere. And I have to say, you're very close to the justices. And I found that it did seem particularly. Gorsuch seemed very offended by what Chevron had wrought. And then, you know, Sotomayor, Kagan and Jackson were trying to go. They went through expertise. They asked the question that you asked me a little while ago. Don't these agencies have special expertise? But the main thing was, is that this is not a question. Who pays is not a question for agencies, is a question for Congress. It's the, er, question of Congress is who pays? That's why we have them. That's why all these fights are over taxes, fees and all these other things in Congress. It was not a question of counting fish. It was a question of who's going to pay for the guys who count the fish. Which is not really an expertise thing. It was just a matter of allocating resources, which is why we have a Congress.

[A]

Coming up in June of 2024. John Vecchione's argument carries the day. And the Chevron doctrine is finally struck down. So what comes? When I would go down to New Bedford to do interviews for the series, I would often stop by one of the fish markets in town on my way home, just to see what was fresh, maybe get something for dinner. And it reminded me that a great fishmonger is really a special treat. And I'm not just talking about a fish seller, but somebody who can really make sure that you're only getting the best quality fish, tell you where it came from, maybe even offer you a tip on how to cook it. That is what you get from Rogers Fish Company. You can order online at rogersfishco.com or check out their new location at Logan Airport in Boston.

[B]

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[A]

So take me now into the post Chevron world. We've been living in it for coming up on two years now. And I'm curious how I mentioned this idea of a sort of hot potato between the branches of government over who's going to actually settle these thorny, nitty gritty questions. And I'm curious how each of the three branches has responded to this new world. And maybe we could start with the judicial branch. So what have we seen in those district courts, in the lower courts? Have we seen new cases challenging other regulations? Has this change in precedent actually yielded the sea change that some people predicted?

[C]

I think that it has been impactful, which is a word I don't usually use, but I think it fits here. But it has not been as disruptive as the opponents of getting rid of Chevron deference said it would be. And I'll give you, I think, the analysis of previously cases against the administrative agencies. You lost something like 90% of the time. Now it's somewhere around 60%.

[A]

Wow.

[C]

So it's significant, but it's not like they're not winning. Right.

[A]

You're still losing most of the time.

[C]

Right. But it's just, you just have a much wider. I mean, I think if you could get a 30% better odds on a football game, you'd take it.

[A]

Or in baseball, you just went from, you know, a hopeless hitter to A wow, you're batting.400. Great.

[C]

There you go. That's exactly it. But one area where the government is very strong, even after Loper Bright is, let's say, like Obamacare. Let's say you get a statute passed by Congress and then you're the first administration that gets to administer that law and make the regulations. The court has. I think all the justices think that if you're the first person to issue regulations under the statute and then that is followed for a long period of time, they are very, very hesitant to overturn that because that doesn't have the problem I said earlier of 180, this

[A]

180 switch, flip flop thing. Yeah.

[C]

And so those, they don't say it's deference, but it sure seems like if you're the first. I always say, whenever George Washington does something, the Supreme Court's not gonna go around saying whatever George Washington did was unconstitutional, even if now it looks pretty bad. They're like, well, you know, it's been done for 250 years, so. Or a little less. But so anyway, so I do think that there's that and there's jostling around what we're gonna do with what kind of respect do the agency regulations get when they change? That's where things are going. And Supreme Court also said that all those cases that were decided with Chevron deference, they're gonna respect those previous decisions. And now the appellate courts are all arguing over what that means, because otherwise

[A]

you would have thousands.

[C]

Correct.

[A]

Of individual district and lower court rulings that would all be suddenly up in the air.

[C]

Right. And so they didn't want that.

[A]

So can you give me an example of a specific regulation, not a fishing regulation that has been challenged post Chevron?

[C]

Oh, yes. I have a couple that I think are interesting. I'll just use two, please. One was a Supreme Court case called McLaughlin Chiropractic vs. McKesson. And in the McKesson case, the question was Congress had passed this statute that said back in the days where there were faxes, what you remember, you may not remember, but I do. So when faxes came out, you'd get spam faxes where people would fax you things, and suddenly your fax machine would run like 60 pages of things like, here's our car sales or whatever it was. And so they passed a law that for every spam fax you sent that the recipient had not asked you for not expecting it, you would be fined 1,000 bucks. Okay, that'll add up, right? It'll add up. And it had in the McKesson case, because they used it. And in this day and age, they sued for the faxes that come in as emails because the faxes can come to a fax machine or an email machine. And. And the court deferred to the government ruling that it's only paper faxes. It doesn't apply to email faxes. But that's not what the law said. And the Supreme Court said. No, no, no, no, no. You don't get any deference to the agency's interpretation of what faxes are. You gotta make that decision on your own. Well, that case was worth hundreds of millions of dollars. These people had sent out emails like it was going out of style. I think it was something like 600 million. I haven't looked at the case, but the other case that just came out,

[A]

ok, so far, the Loper Bright decision is protecting spam senders.

[C]

No, not protecting them, because now they have to pay the thousand bucks.

[A]

Oh, so, okay, they were shielded from the fine.

[C]

By the government's interpretation. Yes, by the government's interpretation. Of only paper faxes count.

[A]

Ah, okay. Okay. So overturning Chevron allowed people to sue

[C]

on the fact that they were getting emails that were fax emails.

[A]

Wow. Worth hundreds of millions of dollars.

[C]

Correct. And then the other one that just came out, a district court case that just came out, it's called Chamber of Commerce versus the Federal Trade Commission. And in this case, the Federal Trade Commission created a paperwork bottleneck. I won't go into the details, but it was basically a new. You had to provide a lot more information to the ftc, every publicly traded company in the country. But in any event, it was three to four times the cost of the previous FTC rule, which had lasted for 30 or 40 years. They had always said, here's what you need to give us so that we know when you merge whether or not we should step in. So the court in Texas looking at this new paperwork act for ftc, they said, listen, I get to interpret the law under Loper Bright. You know, I get to say what the law is and the law isn't this. Because they were saying that the necessary and appropriate. It's the same in the Magn Stevenson act meant that they being the regulator, the regulator, the FTC gets to decide what's necessary and appropriate. And hey, we think it's necessary and appropriate. So it is. And the judge was having none of that.

[A]

And that paperwork requirement has been struck down.

[C]

Yes, it's been struck. And according to the Chamber of Commerce, I didn't do that case, but it's significant. And it's happening all over the country that when the agencies can't. When it's just something they want to do and they can't show that it falls within the statute, they are getting struck down. So I think it has been very useful. I just don't think it's been a disaster. Because what we've also seen is that, as I said, regulations are being upheld all the time. They're just regulations that hew a little closer to the statute, which I don't think's a bad thing.

[A]

So then let's turn to the executive branch. There's a bit of a confounding element here in that just as we enter this post Chevron world, the administration also turns over and it's a very different posture towards regulation and the administrative state. But I'm curious what you have seen in the new administration at the agency level, how they are writing new rules. Are they taking into account the limitations imposed by the Loe Pobright ruling when they want to.

[C]

Is the Way I put it, I will say this. Let's look at tariffs. I've filed cases and I have amicus briefs on the tariffs. I am pretty sure that IAIPA does not allow the President to put any tariff he wants on anything.

[A]

Sorry, aipa. One more time, spell it out.

[C]

The International Emergency Economic Act. Powers Act. Powers Act. And that is how all the Liberation Day tariffs have been put in and all that sort of thing. The Achilles heel for the administration on that very important litigation to them and to us. We have clients as well, is low per Bright, because it's not clear the statute allows this.

[A]

So you think that if it were a few years ago, in a Chevron world, the administration would just hold up Chevron and say, hey, look, it's ambiguous, so we can make these tariffs? And the judges would say, yeah, I guess that's right. And now that's different.

[C]

I think that's what happened. It was a little pre Chevron, but the same kind of thinking upheld Nixon's tariffs back in the 70s. Under that kind of thinking, that kind

[A]

of deference to the agency, to the administration.

[C]

Yes, yes, yes. So, yes, I think that. That the administration would have an enormously more stronger hand if Loper Bright had not come in on tariffs.

[A]

Yeah. It's interesting how regulation just, if you just take that word in isolation, or the administrative state, it has this sort of liberal, big Democratic, big D, democratic kind of color to it. You kind of associate it with the left, but as you say, I mean, executive power is not a red or blue issue, and that all administrations going back decades want to expand their power and their purview. So it's interesting how you can see, even in an administration that has, you know, really branded itself as, you know, challenging the administrative state, they're still using it questionably in some cases.

[C]

Yeah. And here I will say this. The last one we haven't really mentioned is Congress. Congress has asked.

[A]

That's our next one.

[C]

Yeah, Congress has asked me. I've spoken twice to various congressional committees on what l' approbriety is and what kind of language they should be using in statutes. There is a hunger to know how to legislate on these issues and how to make things clear. And I have been. I have actually been impressed with some of the folks up on the Hill asking me questions about this sort of thing and having me and other people in this area speak to them, meaning

[A]

they want to roll up their sleeves and actually be more detailed.

[C]

It appears some of them really do, but the problem is that they're not passing any legislation because the administration is doing everything by executive order. And the numbers are so close, we don't really know how they're going to be legislating because this is the least active lawmaking Congress that I can ever remember. And I think that there's that problem. The other problem is the Congress is now not independent in any way. They're so beholden to the President, they don't do anything the President wouldn't like or wouldn't allow. And obviously the current administration makes it very obvious. But it was pretty obvious in the last administration too, if I'm being fair. They don't, they don't want to make trouble for the administration. And so then they don't, they sometimes don't do things to make compromises, which is what you need for legislation. And the Supreme Court has been telling them to do their job for about 10 years. And Chevron was, Lil Perbright was part of this Congress, do your job stuff. The major questions doctrine that they've come up with in the last 10 or 15 years is Congress, do your job. So all the academics and all the jurists are saying, congress, do your job. And Congress is finding reasons not to. We'd have to wait for the next big piece of major legislation to know. And I don't think appropriation bills cover that because they expire at the end of when the appropriations is over. We need a bill that's an actual Obamacare to know exactly how Loper Bright's going to work out in the Congress.

[A]

Yeah. So for now, in terms of the balance of power, the Loperbrite ruling has taken a little bite out of the administrative state, but it has not really given that piece back. Congress has not taken that power back for itself. So for now, the courts I guess have a little bit more of a hands on control in the regulatory ruling. But Congress is tbd.

[C]

Well, I do think it empowers the individual American, however, because just like my fishermen and Loper Bright fishermen, they had no chance before. So you say it empowers the court, but really what it does is empower the individual to make an argument in front of a fair tribunal about what the law actually is. And that tribunal doesn't have to put its thumb on the scale for the government. So I think the one area where I do think that people are that of the three branches, I think, yeah, you could say the judiciary is most empowered, but that's because individuals have a chance to go there and get a fair shake now, not a slam dunk. As I told you, the numbers but a fair shake.

[A]

So take me back to the herring fishermen that you represented on the Relentless. Although the legal precedents and politics aside, what has happened to their case?

[C]

All right, I'll tell you, Loper Bright, those aren't my guys, but I know what's happening because they filed stuff and I talk to them all the time. So their case was fully briefed before the D.C. circuit, the Supreme Court remanded it down to the lower courts and the D.C. circuit did not basically said,

[A]

take this again, but minus Chevron.

[C]

Correct. And so it was fully briefed and argued in the D.C. circuit. And then the parties being the government and local Bright folks, said, we're going to try and settle this and that case has been held in abeyance. So that just means that they're given time to settle the case. There's been no ruling my case. The First Circuit did not keep it. They sent it all the way back to Judge Smith and he ruled against us. He said, ah, I think this statute lets them do this. But he cited the vacated opinions of the First Circuit that have no power or strength. He says, ah, they get to do this because the First Circuit said this last time. And here's the reasons why. We have appealed that to the First Circuit and it's in the midst of briefing now, we're filed our brief and the governments will be due sometime.

[A]

So as of now, the Loper Bright Relentless ruling is a symbolic victory for

[C]

your clients, for the fishermen, that's for sure. I will say this, they haven't had to comply yet. Everything has been just like for Gaiethel. They haven't been forced to do it, they haven't removed the regulation, but it hasn't affected anyone. Partially, I will say this, partially because the herring quotas are so low now, it doesn't really affect you too much.

[A]

Yeah. That is a quirk of the observer rule that we didn't touch on earlier is that this rule has been on the books for a while, but actual payments have not occurred. Boats have not actually had to pay for the observers, but they in theory would or will have to.

[C]

Yeah, if these cases had gone away, they would be paying for them. So it's basically holding up a shield for this. The government does not want to put them in, but I don't have a perfectly good reason why this administration particularly hasn't just withdrawn the rule. Now there is, you know, you may have to go back to the, you know, the councils or something, but I just think that why would you engage this much litigation, this long over a rule that you don't even like. I don't know.

[A]

And what's next for you? Do you have new cases that you want to take on in the post Chevron world that you think are also cases of regulatory overreach?

[C]

Oh, sure. I just told you we have tariffs. So we brought the first case against Thai EPA tariffs in the country. I think that will be the next major iteration of Loperbright, because I cannot imagine that the tariff case is going to come out without a citation to Loper Bright. It will have a citation to Loper Bright one way or another, and it will affect billions, hundreds of billions in tariffs. So that's the first one. We also have various cases against sec. Basically, they're spying on everybody's stock trades in ways that they have not been allowed by the statutes. And we think that is also a violation of Loper Bright and that involves every stock trade in the country.

[A]

So we'll know a lot more in the next year about what this post Chevron world looks like.

[C]

You watched the Supreme Court tariff case and I think we're going to get an education.

[A]

All right. Thanks, John, for doing this.

[C]

You're welcome. Great to be here.

[A]

John Vecchione is a senior litigation counsel for the New Civil Liberties Alliance. I hope it's clear that John represents a very specific perspective on the regulatory state. So if you found yourself feeling skeptical, or maybe even more so if you found yourself feeling convinced by his arguments, please know there has been a lot written about the consequences of overturning Chevron. We'll link to a Slate article in the show Notes that offers a very different take. After we recorded this interview, the Supreme Court did rule on the Trump tariffs ruling that the Emergency Economic Powers act does not give the President authority to impose sweeping tariffs. If you look at Justice Neil Gorsuch's concurrence in the case, he does in fact cite loperbrite and the end of the Chevron doctrine. But when I followed up with John Vecchione about it, he said that the true impact of loperbreit is in what you don't see. That is you don't see the justices debating whether that original law was ambiguous or not or whether they have to grant deference to the agency based on that ambiguity because that line of argument no longer applies. Next week we have a very different conversation all about the food part of our story. What do you as a seafood consumer need to know about the fish you eat? I'll be joined by a very special guest for that one, so stay tuned. Catching the Codfather is produced by Isabel Hibbard and myself, Ian Coss. The Executive producer is Devin Maverick Robbins. If you're someone who sticks around for the bonus episodes and even for the credits of the bonus episodes, I really hope you will also take the time to leave us a rating and review in your podcast app of choice and maybe even do us the greatest favor of all. Tell a friend about this show. Someone who you think will appreciate it. That's it. The Big Dig is a production of GBH News and distributed by prx. Thanks and more soon. I really hope you're enjoying the show and before I let you go, I just want to drop in with that constant podcaster's reminder to please rate the show. Leave us a review, subscribe and of course tell a friend all that stuff really, really does help us keep the show going. Thank you so much

[C]

from PRX.