The case is still being defended by a DOJ attorney hired during the Obama administration, who argued it back when he was working for Merrick Garland.

You might have thought that Loper Bright Enterprises v. Raimondo was a great and conclusive victory for conservatives, and one that would be eagerly embraced by MAGA Republicans eager to housebreak the administrative “deep state.” So, why is this administration’s Justice Department still defending the Loper Bright case?

Recall that Loper Bright involved both a dispute over a regulation and a broader legal fight over the administrative state. The specific regulation, enacted by Trump’s first-term Commerce Department, required fishing boats to carry federal monitors on the fishermen’s dime. The statute at issue said nothing about who paid for monitors, so the agency just demanded that the courts defer to the agency’s expertise in reading into an ambiguous statute the power to tax. The broader legal fight was over the Chevron doctrine, under which the courts defer to an agency’s reading of the law when interpreting its own statute. The Court finally overturned that mischievous doctrine last June, requiring agencies to exercise only those powers that Congress gave them, under laws interpreted by courts. However, the Court did not resolve the specific outcome of the fishery-monitor rule, and it unconvincingly argued that previous regulations blessed by the courts under Chevron might be protected by stare decisis.

The Trump administration, quite properly, banked this big, long-term win by the conservative legal movement and its libertarian allies and set about applying it in agency after agency, arguing that regulations issued under Biden and past Democratic presidents were illegal and should be repealed. With the executive branch no longer defending them, that stare decisis defense is not so vibrant. On the whole, Loper Bright has been a great gift to Trump’s agencies in undoing past mischief while giving aid to opponents who wish to avoid new adventurism by Trump agencies. It’s a win-win.

The Court, having decided the big question, sent the smaller one back to the lower courts to decide under the proper standard. So, Loper Bright is now back at the D.C. Circuit, as Loper Bright Enterprises v. Lutnick. And guess who’s defending it? The Department of Justice under Donald Trump and Pam Bondi. The case is still being defended by Daniel Halainen, a career DOJ attorney hired during the Obama administration, who argued it before the D.C. Circuit back when he was working for Merrick Garland and previously worked on the legal team defending Loper Bright and Chevron at the Supreme Court.

Halainen is still at it, but it’s unclear how much supervision he’s getting from the DOJ, or why the DOJ is still insisting on imposing these costs on boats full of working-class fishermen. Earlier this month, the Supreme Court decided Seven County Infrastructure Coalition v. Eagle County, Colo., which chided courts for not deferring to the policy decisions of agencies where the law allows the agency that discretion. Halainen wrote to the D.C. Circuit to claim that this decision supports the agency’s legal interpretation of open-ended statutory language:

Here, the Court’s interpretive task on remand is to determine the best reading of the text in the provisions authorizing observer measures . . . and measures that are “necessary and appropriate for the conservation and management of the fishery.” . . . Although the Court determines the best reading of the terms “necessary” and “appropriate,” the factual determination of what measures are necessary and appropriate in the context of a particular program requires the exercise of agency discretion. . . . And here, the National Marine Fisheries Service reasonably exercised its policy discretion to determine that the at-sea monitoring measures for the Atlantic herring fishery were necessary and appropriate. [Quotations and citations omitted]

That’s such a broad standard that it could allow an agency to reclassify almost any legal power as a matter of discretion — a bonanza for deep state liberals. Is anybody supervising this?