The Independent Women’s Law Center filed a friend-of-the-court brief this week in the United States Supreme Court in support of local fishermen in Loper Bright Enterprises v. Raimondo. The case involves a government agency, the National Marine Fisheries Service, running riot over separation of powers principles and provides a perfect opportunity for the Supreme Court finally to overrule—or at the very least, limit—judicial deference to administrative interpretations of the law under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

In this case, the National Marine Fisheries Service required small family fisheries to pay the salaries of government monitors stationed on their boats—imposing costs on these struggling businesses equal to 20% of their annual revenues. To be valid, such an extraordinary assertion of power would need to have been authorized by Congress. It was not. The Magnuson-Stevens Act provides that the agency has such power only in very limited circumstances—and caps the cost of such monitors at 2-3% of the vessel’s haul. When read as a whole, that statute confirms Congress never intended to charge small family fisheries located in the Atlantic such exorbitant fees.

The court of appeals nevertheless deferred to the interpretation adopted by the agency under Chevron. The lower court concluded that the statute wasn’t clear on the issue, and thus that Chevron required the court to defer to the agency’s interpretation. That kind of unbridled deference to the executive cannot be squared with the structural separation of powers demanded by the United States Constitution. 

As members of the Supreme Court have noted, reflexively deferring to agency interpretations robs the judiciary of its Article III obligation to interpret federal law. It also implicates Article I concerns; under our Constitution, the democratically-elected branches are supposed to make the law, not unelected bureaucrats. Finally, judicial deference is particularly problematic in this case since the agency unilaterally created an independent source of funding in violation of the Constitution’s Appropriations Clause, which limits agency spending to those dollars authorized by Congress.

In its amicus brief, IWLC explained that the lower court’s decision poses a threat to both constitutionally demanded separation of powers and to small businesses across the nation. IWLC argues that separation of powers principles were intended to protect individual liberties. Yet today Americans are most often governed not by Congress but by the “hundreds of federal agencies poking into every nook and cranny of daily life.” 

In deferring to the agency’s decision to rewrite the Magnuson-Stevens Act, the court of appeals abdicated its duty to say what the law is and permitted the agency to go outside the normal constitutional appropriations process. Further, the federal court of appeals ignored numerous recent precedents from the Supreme Court explaining that every tool of statutory interpretation must be employed before the federal courts defer to an administrative interpretation. As this case illustrates, Chevron “undermines” the ability of federal courts to check unlawful executive action and allows agencies to determine the scope of their own authority. This case is only the latest in a long line where the federal courts have reflexively deferred to erroneous and aggressive agency interpretations of the law. It should be the last. 

The National Marine Fisheries Service’s end-run around the limited authority given it by Congress and its creative funding of its regulatory mission outside of the congressional appropriations process is not only unlawful but also devastating for small businesses. IWLC thus argues that the Supreme Court should grant review of the decision, reverse, and either limit Chevron to its appropriate role or overrule it entirely.