Sunday afternoon in our house triggers “Family Sundays.” During this time, parents and kids cannot be with friends, including electronic friends like smartphones and tablets. We voted—just the four of us—for dinner, games, and movies. Such became house law.
The recent US Supreme Court decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), ended Chevron deference, which deferred to agencies’ interpretations (rules and regulations) when a statute is ambiguous. Chevron U.S.A. Inc. v. National Resources Defense Council, 467 U.S. 837 (1984). But in this column, we consider the Court’s unstated analysis, not whether Chevron was rightly decided.
Loper involved the 1976 Magnuson-Stevens Fishery Conservation and Management Act, which specifies three types of fisheries that must pay the cost of government representatives serving as observers without addressing Atlantic herring fishermen. 16 U. S. C. § 1801 et seq. In 2015, the governing agency adopted a regulation requiring that Atlantic herring fishermen pay for observers if the agency determines an observer is needed but declines to assign a government-paid one.
As for our Family Sundays, one child’s tendency to procrastinate eventually necessitated passing a regulation clarifying the house law. We resolved to include homework that involves a parent (like practice tests). So, we, as parents, unilaterally adopted a regulation expanding Family Sundays to suit changing circumstances (we didn’t risk putting this up for a full vote, of course).
What is the parallel? We added a fourth category of what can be done on Family Sundays—certain types of homework—to an explicit list in the “law” that didn’t include it. In Loper, the agency added a fourth category—Atlantic herring fisheries—to an explicit list in the law that didn’t include it.
How should we decide if additional categories fit within the original law? One tool of statutory construction is canons. Three Latin canons provide syntactical presumptions. Ejusdem generis limits a general word appearing at the end of a list by preceding specific words. Generalia specialibus non derogant resolves a conflict between a general and a specific provision in favor of the latter.
But the one perhaps most applicable here is expressio unius est exclusio alterius, which means “the expression of one thing is the exclusion of the other.” The import of this canon is that when interpreting legislation, a presumption may be made that an express reference to one matter excludes other matters.
Under this canon, when a statute explicitly sets forth certain terms, it may be interpreted as not applying to terms that have been excluded from it. In Loper, fishermen challenged the regulation adding Atlantic herring fisheries to the three named in the statute. Since 1984, Chevron has stood for the proposition that a duly passed agency regulation was (rebuttably) presumed a proper interpretation of the relevant statute. Loper declared this no longer the rule.
Our Family Sunday homework regulation would have enjoyed the benefit of Chevron deference. But after Loper? Let’s say that our form of authority is being the parents, so sometimes fiat works. But what about the effect of Loper on federal agencies seeking to update, elaborate, or clarify a law through an agency rule or regulation?
One perceived potential abuse of Chevron deference is characterized by viewing the agency’s presumption of interpretation as making the applicable law a political football. Under this line of critique, the concern is that a new administration could appoint federal agency leaders who pass new rules and regulations defining and applying existing laws aligned with their political platform. Loper seeks to eliminate such a potential by declaring that the meaning of a law is fixed at the time of passage.
The 2014 AFC Championship NFL game featured the New England Patriots hosting (and beating) the Indianapolis Colts. It is also known for a scandal dubbed Deflategate. Patriots quarterback Tom Brady was accused of instructing a team employee to deflate the footballs to be used by Brady. (Each NFL team begins the game with 12 footballs for their use, so the Colts were not using the same footballs as the Patriots.) The alleged goal was to inflate the Patriots’ passing attack by giving Brady a deflated, softer football that was easier for him to grip. Eventually, Brady served a four-game suspension, and the Patriots were fined $1 million and docked first-round and fourth-round draft choices.
By contrast, through Loper, the Supreme Court inflated the role of courts and deflated the use of agency rules and regulations as a political football.
