The Fishy Case That May Rein In Out of Control Federal Agencies
January 27, 2024 9:19am
The Constitution of the United States allows Congress, and ONLY Congress, the legislative power to make federal laws. Nowhere does our Constitution grant such powers to the Executive Branch or to the agencies that constitute the Executive Branch. Congress does have the authority to grant certain rule-making powers to those agencies. But those rules must exist within the boundaries of what Congress legislated.
Well, in the last half century or so, the Executive Branch has assumed more and more power that neither the Congress nor the Constitution authorized. And they've been getting away with it, with the blessing of the Supreme Court, since 1984. The 1984 case was Chevron USA v. Natural Resources Defense Council. That case involved the Environmental Protection Agency's unilateral reinterpretation of the word "source" used in the Clean Air Act. The High Court supported the EPA's actions in what came to be known as the "Chevron Doctrine" or "Chevron Deference."
The Chevron Doctrine essentially required judges to presume that an agency's interpretation of a statute was proper unless there was a clear violation of the law. Before overruling an agency's action, judges had to go through a two-part test. First the court had to determine whether Congress directly addressed the issue in legislation; second, if Congress didn't clearly address the issue, the court would have to uphold the agency’s interpretation of the statute as long as it was reasonable. That decision allowed regulatory agencies to have very wide latitude in reinterpreting existing laws whenever they wanted. The result was wildly vacillating policies depending upon which party held The White House.
But an upcoming decision on a case out of New England may change that. Oral arguments were held last week at the U.S. Supreme Court in the case of Loper Bright Enterprises v. Gina Raimondo (the Secretary of Commerce). The Magnuson–Stevens Fishery Conservation and Management Act allows the National Marine Fisheries Service to place human monitors on fishing boats to ensure that fishing quotas and other laws are not being violated. Despite that Act not allowing the agency to require the fishing boats pay for those at-sea monitoring programs, the agency interpreted (misinterpreted, in my opinion) the law in such a manner that it did. Well, some of the affected fishermen sued. Judges in both the District Court and the Court of Appeals ruled against them, and the case is now before the Supreme Court.
On today's radio program, I interviewed Ryan Mulvey, an attorney with Cause of Action Institute, which represented the fishermen. Mulvey worked on that case and was present in the courtroom during oral arguments. We discussed the case, the lack of constitutional justification for what the Commerce Department did, and what the Court's decision is likely to be. That episode is now archived online as a podcast at www.TheMikeBatesShow.com/podcasts/240127