Have we entered a new era for government regulation?

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I'm Ian Coss, and welcome to the first of two bonus episodes for our series catching

the cod father. 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. 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 Vekioni is one of the lawyers representing those fishermen. So tell me about your background. What's that boat behind you? I see. All right.

So behind me is the actual relentless at which was the companion case to local bright. They argued the same day, and I was council record for relentless meeting. I filed the complaint and got it to the supreme court. 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 what ever 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 6 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 Noah a lot of latitude in how they make rules.

Okay. Looper Bright is the 2024 case that challenged an ultimately overturned Chevron. And relentless, as John mentioned at the top, was the companion case that got bundled together with Looper Bright 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 did you get interested in these fisheries cases in the first place?”

I had joined an organization called Cause of Action back in 2016. And they represented a fisherman up in New England named Gaythal. David Gaythal, who listeners will remember. Yes, so you've had him on. I have, yes. Okay. So David came to us with this regulation that had been passed by.

It basically how it works. I've made just use one of the agencies, but Noah and Nashamarin fisheries and commerce kind of issue the regulations in combination. So all these is a commerce or Noah somewhat. Yeah. I dealt with the same issue in the podcast.

I mostly just simplify it and say Noah. But yes, understood, it's Department of Commerce includes Noah, includes Nashamarin fisheries, lots of acronyms. Yes, and there's a complicated way to relate. Doesn't matter here. What matters is that in 1990, the Magnuson Stevenson Act was amended that said Noah may put observers on the fishing boats.

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. The government objected 20 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 Noah would put more observers in. And those observers had to be paid by the fishermen.

They had to contract with the observers who were doing a government job. I mean, listeners have to know that 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 now 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. Sure. Anyway, so David comes to us. But unfortunately, he came to us what Noah 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 fishermen and Massachusetts does that. I wouldn't be so sure, but okay, fair. Probably not. Some may have people who do it.

Maybe, you know, they have somebody who looks for it, but that's not a thing for your regular fishermen. Yes, fair. 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 out. So you're out of luck. You can't bring this case, Mr. Gaythal.

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 that was the subject of that litigation, they always funded it thereafter.

They never allowed no to do it. So nobody ever paid after that because there was Congressional through appropriations. There was was Congressional action. So that's how I got into these cases. This is speculation on my part.

But I was always curious, you know, that it was this fishery case. Why basically why fisheries, you know, because anybody could have challenged the constitutional legality of Chevron, it could have come from any number of businesses that are regulated.

And to me, it always seemed like there is a kind of emotional power of fishermen, you know,

that these are really independent small businesses. This is not a multinational oil company. And I think we want to root for them. Like everybody wants to support the fishermen who catch the fish that we eat. And so I'm wanting on your part was that part of the thinking to find a plaintiff who people could relate with.

And you can be part of intake for us because that is exactly, 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 end 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.”

So you talked about how you brought this case with David Gaythal that was thrown out because he brought it too late. Yes. And then a few years later, in fact, as Carlos Raphael 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?

So cause of action was going to do other things. And I moved to NCLA. So NCLA is-- That's a new civil release alliance. Thank you.

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 low perbright 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 our 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 better name. Loper Bright does not really have the same ring to it. So in any of it, it's also the name of fishing vessel, though. And so we decided they filed in DC, which is sort of the premier court. 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 do that if we got any kind of circuit split. That is what would happen. And you were aiming for that by filing in these two circuits simultaneously? I certainly was.

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

And what happened? Well, we lost.

“What happened is because of Chevron in the DC district court.”

That judge actually just said, "That's clear they can do this." But the DC circuit then said, "We think it's ambiguous." And the Chevron deference was that if the statutes 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 as a disadvantage, because they can tell the judge what the law is. That's the real unfairness of Chevron. So if it's a tie, the tie goes to the agency. Correct, even more than a tie.

A little more than that because as long as their interpretation isn't unreasonable, and you got to do a lot to be unreasonable and Washington. So as long as it is unreasonable, the court had to go along with it. So in the DC circuit, they go up and the DC circuit to the one. It was the three judge panel.

But sitting on the panel originally was Judge Jackson. That's going to be important in a minute. Can I jump around Jackson? Now Justice Jackson, correct. And Judge Shrine of Austin 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 Shrine of Austin 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.

Meanwhile.

Just to zoom out for one second, how long you've referenced these different judges who have been trying to get Chevron up to the Supreme Court.

“How long has this kind of jocking around Chevron been going on?”

I mean, that preceding goes back to the '80s. Yes. Is it ever since then? No. No.

No. It was not when it came out. First of all, it was six justices. So it wasn't even the nine. I had to recuse.

I think so many people had stock and Chevron that had to go up. So it was a six-row decision, no dissense. And I don't think Justice Stevens knew what he was creating. And there was no split along ideological lines. And what famously Justice Scalia was a big supporter of it originally.

That was 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 versus Madison. That gives you how much the courts relied on it and agencies relied on it. 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.

That's right.

And not only there's two, and then 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 have. 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. Can be a sense of the scale of the, you mentioned it is the most cited Supreme Court ruling other than Marbury versus Mattis. Marbury versus Mattis. And what does that mean, you know, in 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?

So it started to be used by every administration Republican and Democrat for whatever they were doing.

And they would always claim ship ambiguity first.

Then Chevron deference. And then Tadah, we win. So that's why I got cited so much because the Justice Department rely on it all the time. It was, it was the push push of administrative law. You know, it was not nonstopable.

“So I think that's why I got big and it covered everything.”

I think that's a little logical logic 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.

Yeah, I get the sense looking over the, 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, you know, they delegate some power to the agencies and then sometimes the court 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 a while. 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, why is that a bad thing?

All right, I'll give you two answers.

The first answer is low per bright and relentless still allow that to happen.

Just Congress has to be clear about it.

“So for instance, I've never bring cases on fish quotas because Magnus and Stevenson acts as the secretary shall have power to decide what the fish quotas are, right?”

I mean, pretty unambiguous. It's unambiguous that they wanted for the reason you just said the fisheries people to make that decision and not them, right? So all that low per bright and relentless ask is that they do it clearly. So railroad rates, you know, 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 low per bright, we said, wait a second. Congress actually did what you wanted lower the amount of water in dishwashers and washing machines. And now you're lowering a 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 charged going in national parks are. Well, they get to do that. 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? Oh, yeah. And this is where Justice Jackson comes in. So low per bright had been brought and we had filed and CLA 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 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'm 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 accused from the case.

So low per bright would only have eight justices sitting on it. So in order to remedy it. Because the Tantra Brown Jackson had she in on the district court when it was on its way up. Correct. Take relentless so that she can sit and listen to the arguments and then be on the low per bright relentless case.

I mean, I think is that Robert's call? No, it's the court itself. It's just a long standing rule of the court. So that's what that's what happened. That's why it happened.

I always say it's because my petition for assert was so great.

But that's the real reason.

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

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, macro. It was ECF.

Oh, electronic, the electronic mail service they have to tell things. Got it. 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 28th, 2024. Right at the end of the, right at the end of the term.

Before we get to the ruling were you there for the oral arguments? Oh, yeah. I was at Council table. Yeah, yes. Yes, I was there.

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

If 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, saw the Mayor Cagan 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 that this is not a question. Who pays is not a question for agencies? This is a question for Congress. It's the ear question of Congress. Is who pays?

That's why we have them.

“That's why all these fights are over taxes.”

And all these 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.

Coming up in June of 2024, John Vekione's argument carries the day.

Chevron doctrine is finally struck down.

So what comes next? When I go down to New Bedford to do interviews for the series, I would often stop by one of the fish markets in town. In my way home, just to see what was fresh, maybe get something for dinner. And it reminded me that a great fish manga 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 off of your 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. 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, you know, I mentioned this idea of a sort of

hot potato between the branches of government over who is 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 and the lower courts?

Has this change in precedent actually yielded the sea change that some people

predicted? I think that it has been impactful.

“This is the word I don't usually use, but I think it gets fits here.”

But it has not been as disruptive as the opponents of getting British Chevron Deference said it would be. And I'll give you an, 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%.

Wow. So it's significant, but it's not like they're not winning. Right? So you're saying most of the time. 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. Or in baseball, you just went from, you know, a whole split hit or two. You're hitting, you're batting 400. 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 comms. 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 a 180 degree switch. Right. And so those, they don't say it's difference, but it sure seems like if you're the first.

I always say whenever George Washington does something, this Supreme Court's not going to go around saying whatever George Washington did was unconstitutional.

Even it now looks pretty bad. They're like, well, you know, been done for 250 years. So, or a little less. But so anyway, so I do think that there's that. And there's justling around what we're going to do with what kind of respect to 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 going to respect those previous decisions. And now the appellate courts are all arguing over what that means. Because otherwise you would have thousands. Correct.

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

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

Oh, yes. I have a couple that I think are interesting. I've just used to. One was a Supreme Court case called McLaughlin Kyra Practic versus McKesson. And in the McKesson case, the question was, the Congress had passed the 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 dark. Here's our car sales or whatever it was. And so they passed the law that for every spam fax you sent that the recipient had not asked you for, not expecting it.

You would be fine to thousand bucks. Okay. And so we're right. It'll add up and it had in the McKesson case because they used it. And this is 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 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 difference to the agency's interpretation of what faxes are.

You got to 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 some like 600 million.

I haven't looked at the case. But the other case that just came out. Okay. So so far, you know, the Loper-Bride decision is protecting spam senders? No.

Not protecting them because now they have to pay the thousand bucks. Oh, so, okay. They were shielded from the fine by the government's attention. By the government's interpretation of only paper faxes count. Okay.

Okay. So overturning Chevron allowed people to sue on the fact that they were getting emails that were fax emails. Wow. We're hundreds of millions of dollars. And then the other one that just came out, a district court case that just came out.

It's called Chamber of Commerce, which is the Federal Trade Commission.

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'd always said, here's what you need to give us.”

So 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. I get to say what the law is and the law isn't this. Because they were saying that the necessary inappropriate,

that's the same in the Max and Stevenson Act meant that they being the regulator. The regulatory FTC gets to decide what's necessary and appropriate. Hey, we think it's necessary and appropriate, so it is. And the judge was having none of that.

And then paperwork requirement has been struck down.

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, it's 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 appalled all the time. They're just regulations that hue a little closer to the statute,

which I don't think it's a bad thing. So then let's turn to the executive branch. There's a bit of a confounding element here and that just as, you know,

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 low-prepared ruling?”

When they want to, 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 I EPA does not allow the president to put any tariff, you want it on anything.

Yes. EPA, one more time. Let's go ahead. The International Emergency Economic Act. Perfect.

Powers Act, powers Act. And that is how the liberation day tariffs have been put in and all this 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-prepared. Because it's not clear the statute allows this.

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. We can make these tariffs," and the judges would say, "Yeah, I guess that's right." And now that's different.

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's not different to the agency's administration. Yes, yes, yes, yes.

“So yes, I think that the administration would have enormously more...”

Stronger hand, it's a little bit bright and not coming in on tariffs. Yeah. It's interesting how it regulation just... If you just take that word in isolation or the administrative state, it has this sort of liberal, big, democratic, big,

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 redder blue issue. And that all the administrations, you know, going back decades, want to expand their power in their preview.

So it's interesting how you can see even in it administration that has, you know, really branded itself as, you know, challenging the administrative state. They're still using it questionably in some cases. Yeah, and here I will say this.

The last one we haven't really mentioned is Congress. Congress has asked... It's the next one, yeah. Congress has asked me, I've spoken twice to various congressional committees on what little proprietors 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. I'm asking me questions about this sort of thing and having me and other people in this area speak to them.

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 law-making Congress that I can ever remember.”

And I think that there's that problem. And 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 want to make trouble for the administration. And so then they don't, they sometimes don't do things to make compromises, which what you need for legislation. And the Supreme Court has been telling them to do their job for about 10 years.

And Chevron was part of this Congress, do your job, the stuff. The major question is 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 Brides going to work out in the Congress. So for now, in terms of the balance of power, the Loper Bride ruling has taken a little bite out of the administrative state, but it has not really given that piece back. The 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's TBD. Well, I do think it empowers the individual American, however, because just like my fishermen and Loper Bride fishermen, they had no chance before, right? 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 a 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 that 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. So take me back to the hearing fisherman that you represented on the relentless. Although, you know, the legal precedence and politics aside, what has happened to their case? All right, so in low, I'll tell you, Loper Bride, those aren't my guys, but I know what's happening, because they filed stuff.

And I talked to them all the time. So their case was fully brief before the DC circuit. The Supreme Court reminded it down to the lower courts and the DC circuit didn't-- This is a take this again, but mine is Chevron. Correct.

And so it was fully briefed and argued in the DC circuit, and then the parties being the government and Loper Bride folks said we're going to try and settle this. And that case has been held in a bans. 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 strength. He said that 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 where it's in the midst of briefing now, I've filed our briefing. The governments will be doing something.

So as of now, the Loper Bride relentless ruling is a symbolic victory for 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 Gaethel.

It hasn'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 hearing quotas are so low now. You know, it doesn't really affect you too much. Yeah, that is a quirk of the observer rule that we didn't touch on earlier.

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. Yes, if these cases had gone away, they would be paying for them.

So it's basically holding up a shield for this.

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 council is or something.

“But I, 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. 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. Oh, sure. I just told you we have tariffs.

So I brought, we brought the first case against the interest in the country.

I think that will be the next major iteration of loper bright because I cannot imagine that the tariff case is going to come out without a citation to loper bright. It will, 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, by the statutes.

And we think that is also a violation of loper bright. And that, that involves every stock trade in the country. So we'll know a lot more in the next year about what this post-chevron world looks like.

“You watch the Supreme Court tariff case, and I think we're going to get an education.”

All right. Thanks, John, for doing this.

You're welcome. Great to be here. John Vekioni 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 just as Neil Gorsuch's concurrence in the case, he does, in fact, cite loper bright and the end of the Chevron doctrine. But when I followed up with John Vekioni about it, he said that the true impact of loper bright

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 cod father is produced by Isabel Hibbert and myself Ian Coss, the executive producer, is Devon 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 as 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 GPH news and distributed by PRX. Thanks and more soon.

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