Small Fish Could Mean Big Trouble For Feds

Posted on Thu 05/18/2023 by


By Bonner Cohen, Ph.D. ~

In agreeing to review a far-reaching legal precedent laid down in 1984, the U.S. Supreme Court May 2 opened the door to curtailing federal regulatory agencies’ power to decide for themselves what Congress intended when passing vaguely worded legislation.

For nearly four decades, federal agencies have seen their power grow exponentially under a doctrine known as Chevron deference. In Chevron v. Natural Resources Defense Council, the court ruled that judges are required to give wide deference to agencies’ interpretations of congressional intent.

The Reagan-era ruling has long been viewed by conservative scholars as undermining the U.S. Constitution’s separation of powers doctrine by placing too much power in the hands of unelected and unaccountable bureaucrats in the executive branch.

But a rule issued by the National Marine Fisheries Service (NMFS) that would charge commercial herring vessels up to $700 a day to monitor catches has triggered a lawsuit that poses a direct threat to agencies’ discretionary power. The case, Loper Bright Enterprises v. Raimondo, pits New Jersey-based herring fishermen against the Department of Commerce, to which the NMFS is attached. The lawsuit specifically asks the Supreme Court to consider overturning Chevron deference.

“Living at the Mercy of Washington”

Ryan Mulvey, counsel with Cause of Action representing the fishermen, told The Washington Times (May 2) that the case will give the court an opportunity to fix “one of the most consequential judicial errors in a generation.”

“Chevron deference has proven corrosive to the American system of checks and balances and directly contributed to an unaccountable executive branch, overbearing bureaucracy, and runaway regulation,” he added. “These fishing families and all those seemingly living at the mercy of Washington deserve better.”

Writing in The Wall Street Journal (May 10), former Interior Secretary David Bernhardt emphasized the significance of challenging Chevron deference.

“If the justices overturn the precedent, or at least significantly pare it back, executive agencies will no longer get to administer and interpret the law. Such a ruling would go a long way in restoring constitutional checks and balances.” (emphasis in the original)

Another Blow to the Administrative Regulatory State?

Overturning, or at least sharply curtailing, Chevron deference would represent the second blow the current Supreme Court has dealt the administrative regulatory state. In last year’s landmark case, West Virginia v. EPA, the Supreme Court ruled that agencies issuing rules and regulations on “major questions” affecting the economy cannot do so without specific congressional authorization. Because every rule and regulation has the force of law behind it, in the pre-West Virginia v. EPA world, federal regulatory agencies had become de facto lawmaking bodies.

The Supreme Court will hear Loper Bright Enterprise v. Raimondo in October, with a ruling expected to be handed down in the following spring. At least one justice is eager to strike down the precedent.

“At this late hour, the whole project deserves a tombstone no one can miss,” Justice Neil Gorsuch wrote in a dissent last November. (The Washington Times, May 2)

Bonner R. Cohen, Ph. D. is a senior policy analyst with the Committee For A Constructive Tomorrow (CFACT) where he focuses on natural resources, energy, property rights, and geopolitical developments.

Read more excellent articles at CFACT