by Joshua Averbach*

On June 28, 2024, the United States Supreme Court decided two controversial, seemingly unrelated cases: Fischer v. United States and Loper Bright Enterprises v. Raimondo. Fischer narrowly interprets a federal criminal obstruction statute, vacating the convictions of some January 6 insurrectionists and weakening the related prosecution of Donald Trump. Loper Bright overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case requiring courts to defer to reasonable agency interpretations of ambiguous statutes. This Contribution will discuss how Loper Bright weakens the administrative state by expanding courts’ ability to strike down agency action. It argues that Fischer stands for a narrow brand of statutory interpretation that may bolster the regulatory challenges made possible by Loper Bright.

On June 28, 2024, the United States Supreme Court issued two controversial decisions. In Loper Bright Enterprises v. Raimondo, the Court overhauled American administrative law by holding that courts no longer have to defer to agency interpretations of the statutes authorizing agency actions.1 In Fischer v. United States, the Court dismissed charges against January 6 rioters by holding that the government had interpreted a criminal statute too expansively.2 These two cases may seem unrelated, but the type of statutory interpretation used in Fischer may aid the regulatory challenges to which Loper Bright opened the door.

In Loper Bright, a family fishing business challenged a rule promulgated by the National Marine Fisheries Service (“NMFS”) under the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”)3 that required covered fishing enterprises to pay for observers to join fishing crews and monitor their compliance with environmental regulations.4 The fishers argued that the promulgation of the observer payment rule by the NMFS was not authorized by the MSA.5 In this case, the Court overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council,6 ensuring that the judiciary’s interpretation of the MSA would govern, not the agency’s interpretation.7 It then remanded for the lower court to issue a decision consistent with Chevron’s overruling.8

Prior to Loper Bright, Chevron stood as perhaps the most important case in American administrative law.9 Chevron’s two-step framework applied when federal agencies used notice-and-comment rulemaking to interpret statutes delegating authority to them.10 First, a court would determine whether the statute was ambiguous with respect to the issue the agency interpreted.11 If the statute was ambiguous, courts would ask not whether the agency’s interpretation was correct, but simply whether it was reasonable.12 So long as the agency’s interpretation was reasonable, that interpretation would stand.13 As the Loper Bright majority held, Chevron had been repeatedly cabined by a “byzantine set of preconditions and exceptions.”14 Perhaps most importantly, courts would use the Major Questions Doctrine to invalidate agency interpretations that assert authority in an area of particularly great “economic and political significance unless the statute clearly authorized that action.”15 Still, Chevron remained binding on lower courts, who routinely cited it when assessing the validity of agency rulemakings.16

With Chevron overturned, courts have greater leeway to invalidate agency rulemakings even when the agency’s interpretation is reasonable. The Court seems to ground its new standard of review in Skidmore v. Swift & Co..17 Skidmore dictates that “[t]he weight of such a[n agency] judgment in a particular case . . . depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”18 Skidmore respect does not mean ignoring agency interpretations altogether, but acknowledges that agency interpretations have no capacity to bind the courts.19

Fischer, meanwhile, began its journey to the Supreme Court when Joseph Fischer joined the mob that attacked the United States Capitol on January 6, 2021.20 Like many of his fellow rioters—and Donald Trump—he was charged under 18 U.S.C. § 1512(c)(2), a provision passed as part of the Sarbanes-Oxley Act.21 Section 1512(c)(1) prohibits the obstruction of an official proceeding by destroying evidence, and § 1512(c)(2) is a broader prohibition on obstructing an official proceeding.22 The Act was passed in the wake of the Enron accounting scandal, during which corporate executives destroyed incriminating documents to avoid liability.23 The government struggled to prosecute those executives, whose acts fell within a statutory blind spot that the Sarbanes-Oxley Act then sought to cover up.24 Subsections 1512(a)–(d) list a series of obstructive acts and their punishments.25 Section 1512(c) reads as follows:

 (c) Whoever corruptly –

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.26

Out of the unprecedented events of January 6 came a commonplace legal question: whether a catchall provision really catches all. Specifically, the Supreme Court had to decide whether § 1512(c)(2) is only applicable to obstructing acts that involve destruction of documents and other tangible evidence or whether it refers to all obstructions of official proceedings.27 The government argued that the statute covers all corrupt obstructions of official proceedings—and violently disrupting ballot certification was certainly that.28 Fischer argued that § 1512(c)(2) must be read in the context of § 1512(c)(1).29 Thus, he argued § 1512(c)(2) only covers similar acts that target documents or other evidence but that are not covered by § 1512(c)(1).30 The Court agreed with Fischer, all but dismissing the § 1512(c)(2) charge and holding that a conviction would require that “the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the official proceeding, or attempted to do so.”31

Two of the Court’s rationales in Fischer may help future litigants who want to challenge regulations. First, the majority used two canons of construction in novel ways to narrow the catchall provision of § 1512(c)(2). It invoked noscitur a sociis, which “teaches that a word is ‘given more precise content by the neighboring words with which it is associated.’”32 It also invoked ejusdem generis, which instructs that a general term following a sequence of specific terms has its meaning shaped by those specific terms.33 Therefore, the majority held, § 1512(c)(2) is not an all-purpose obstruction ban, but a ban on obstructive actions similar to those barred by § 1512(c)(1).34 Second, the majority found that § 1512(c)(2) must be understood as addressing Enron-style conduct: “[g]iven that subsection (c)(2) was enacted to address the Enron disaster, not some further flung set of dangers, it is unlikely that Congress responded with such an unfocused and ‘grossly incommensurate patch.’”35

The way in which the Fischer majority used these canons is highly questionable. The catchall provision at issue in Fischer is separated from the narrow list of terms in § 1512(c)(1) by a line break and a new subsection number. The Supreme Court explained in Loughrin v. United States that “placing . . . clauses visually on an equal footing . . . indicat[es] that they have separate meanings.”36 Instead, the Fischer majority drew support from Begay v. United States, a case that interpreted an “otherwise” clause as limited by what comes before it.37 But as the Fischer dissent observes, the “otherwise” clause in Begay does not have its own separate subsection or line, unlike the provision at issue here.38 Moreover, the Fischer majority was not able to identify an example of a statute written like this one where the canons it invoked applied. Instead, it “invent[ed]” examples, something that the dissent lambasted it for.39

The majority’s brand of purposivism is also questionable. One can frame the purpose of the Sarbanes-Oxley Act at a low level of generality—for instance, that it was designed to criminalize document shredding that destroys evidence. But one can also frame the law at a higher level of generality, as the D.C. Circuit Court in Fischer did, understanding that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”40 Justice Kagan argued in her dissent that the broad reading makes sense given that the statute was designed to fill a loophole. The statute was intended not just to close the “Enron gap,” but also to prevent “future surprises.”41 However, Justice Kagan’s reading did not previal , and thus the Fischer majority’s questionable use of canons may have signaled new ways for litigants to argue for narrower interpretations of statutes.

Together, Fischer and Loper Bright may bolster regulatory challenges. Loper Bright opened the floodgates for challenges to agency rulemakings interpreting their authorizing statutes, and these challengers may find the Fischer style of statutory interpretation described above helpful. First, regulatory delegations, similar to criminal prohibitions, sometimes end with a “catchall” provision, which regulation challengers have argued are more limited than the relevant agencies have interpreted them to be.42 Fischer serves as a precedent that a catchall provision may be limited by what comes before it even if its appearance suggests purposeful separation from the preceding provision. Regulations relying on broad interpretations of Fischer-like statutes may be attacked on this basis, and will be even more vulnerable without Chevron deference to bolster them.

Similarly, Fischer’s treatment of legislative purpose may benefit advocates challenging a regulation. Challengers will continue using all methods of statutory interpretation, including legislative history, to argue for narrower interpretations of statutes. In the past, courts have upheld regulations on the theory that statutes may be designed to allow agencies to solve problems beyond those that directly inspired the relevant delegation.43 In Fischer, the Supreme Court gave its blessing to a narrower sense of legislative history analysis. Advocates can therefore argue that agencies cannot stray too far from the exact type of regulation that Congress envisioned, much as prosecutors could not stray too far from the evils that inspired the Sarbanes-Oxley Act in Fischer.

Cases decided in seemingly unrelated areas of the law may interact in surprising ways. Loper Bright and Fischer do precisely this. While Loper Bright will vastly increase the flow of regulatory litigation in federal courts, Fischer may provide a roadmap to challenge regulatory actions promulgated under catchall provisions. Together, the two cases present a compound threat to agency action in the post-Chevron era.

* Joshua Averbach is a 3L at New York University School of Law. This Contribution is a commentary on the problem at the 2024 Wechsler National Criminal Moot Court Tournament, hosted by the University at Buffalo School of Law. One of the questions presented was whether the government appropriately charged January 6 rioters under a provision of the Sarbanes-Oxley Act. This Contribution discusses the Supreme Court’s eventual resolution of that issue and analyzes its potential interaction with another case decided the same term. The views expressed herein do not necessarily represent the author’s views.

1. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024).

2. Fischer v. United States, 144 S. Ct. 2176, 2190 (2024).

3. 16 U.S.C. §§ 1801–1891.

4. Loper Bright, 144 S. Ct. at 2255.

5. Id. at 2256.

6. 467 U.S. 837 (1984).

7. See Loper Bright, 144 S. Ct. at 2258, 2271–73 (remarking that “[f]our decades after its inception, Chevron ha[d] thus become an impediment, rather than an aid, to accomplishing the basic judicial task of ‘say[ing] what the law is’” (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))).

8. Id. at 2273.

9. See Christopher J. Walker, Most Cited Supreme Court Administrative Law Decisions, Yale J. Regul. Notice & Comment Blog (Oct. 9, 2014), https://www.yalejreg.com/nc/most-cited-supreme-court-administrative-law-decisions-by-chris-walker/.

10. Chevron, 467 U.S. at 842.

11. Id.

12. Id. at 842–45.

13. Id. at 844.

14. Loper Bright, 144 S. Ct. at 2269; West Virginia v. EPA, 597 U.S. 697, 722 (2022).

15. West Virginia, 597 U.S. at 722.

16. Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Cong. Rsch. Serv. 2 (June 8, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB10976.

17. See Loper Bright, 144 S. Ct. at 2267 (predicting that “[i]n agency case[s] in particular, the court will go about its task with the agency’s ‘body of experience and informed judgment,’ among other information at its disposal” (citing Skidmore v. Swift & Co, 323 U.S. 134,140 (1944))).

18. Skidmore, 323 U.S. at 140.

19. See, Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. Pa. L. Rev. 549, 565 (1985) (describing Skidmore as merely conferring “respectful or courteous regard”).

20. See Fischer, 144 S. Ct. at 2182.

21. Id. at 2182, 2186; see also Alan Feuer, Obstruction Law Cited by Prosecutors in Trump Case Has Drawn Challenges, N.Y. Times (July 20, 2023), https://www.nytimes.com/2023/07/20/us/politics/trump-jan-6-obstruction-charge.html.

22. Compare 18 U.S.C. § 1512(c)(1) (establishing criminal punishment for “[w]hoever corruptly . . . alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding”), with 18 U.S.C. § 1512(c)(2) (establishing criminal punishment for “[w]hoever corruptly . . . otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so”).

23. Fischer, 144 S. Ct. at 2192 (Jackson, J., concurring) (explaining that Congress’ enactment of section 1512(c) and the broader Sarbanes-Oxley Act “‘was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor . . . had systematically destroyed potentially incriminating documents’” (quoting Yates v. United States, 547 U.S. 528, 535–36 (2015) (plurality opinion))).

24. Fischer, 144 S. Ct. at 2192–93 (Jackson, J., concurring) (citing Senate Report for proposition that § 1512(c) “was drafted to fill th[e] gaps” in existing federal obstruction of justice statutes that were “‘riddled with loopholes’” (citation omitted)).

25. See 18 U.S.C. § 1512(a)–(d).

26. Id. § 1512(c).

27. Fischer, 144 S. Ct. at 2182–83.

28. Id.

29. Id.

30. Id.

31. Id. at 2190.

32. Id. at 2183 (quoting United States v. Williams, 553 U.S. 285, 294 (2008)).

33. Fischer, 144 S. Ct. at 2184 (explaining that, under the canon of ejusdem generis, “‘a general or collective term at the end of a list of specific items’ is typically ‘controlled and defined by reference to the specific classes . . . that precede it’” (quoting Sw. Airlines Co. v. Saxon, 596 U.S. 450, 458 (2022))).

34. Fischer, 144 S. Ct. at 2190.

35. Id. (citation omitted).

36. 573 U.S. 351, 359 (2014).

37. See Fisher, 144 S. Ct. at 2186 (citing Begay v. United States, 553 U.S. 137, 144 (2008)).

38. Fischer, 144 S. Ct. at 2198 (Kagan, J., dissenting) (explaining that, unlike the clause at issue in Begay, “[s]ubsection (c)(2)’s ‘otherwise’ clause, by contrast, stands on its own”).

39. Id. at 2197 (“To my knowledge, we have never applied either of these canons to a statute resembling § 1512(c). Rather than identify such a case, the Court invents examples of a sign at the zoo and a football league rule.”).

40. United States v. Fischer, 64 F.4th 329, 347 (D.C. Cir. 2023) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)).

41. Fischer, 144 S. Ct. at 2198–99 (Kagan, J., dissenting).

42. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 157 (2012) (determining the scope of the phrase “other disposition”); Forest Cnty. Potawatomi Cmty. v. United States, 330 F. Supp. 3d 269, 275 (D.D.C. 2018) (determining the scope of the phrase “all forms of gaming that are not class I gaming or class II gaming”); Tax Analysts v. IRS, 117 F.3d 607, 612 (D.D.C. 1997) (determining the scope of the phrase “any other data”).

43. E.g., Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 125 (2d Cir. 2007) (upholding an agency’s interpretation that a statute regulating a specific kind of bank-imposed fee could also be used to prohibit other unfair banking fee arrangements).