Final brief urges SCOTUS to reject fed’s attempt to sidestep the Constitution, overrule Chevron

WASHINGTON, DC, March 8, 2023—New Jersey herring fishermen asked the Supreme Court in a final brief to rein in regulators that rely on judicial deference to circumvent the will of Congress.

The fishermen are challenging the lawfulness of a regulation that could force them to hand over 20 percent of their pay to third-party at-sea monitors they must carry on their boats—a mandate that Congress never approved by statute and did not give the National Marine Fisheries Service (NMFS) the authority to require by regulation. The U.S. Solicitor General recently filed a brief with the Court urging the justices to ignore the checks and balances of the U.S. Constitution in order to preserve the controversial doctrine of Chevrondeference.

The fishermen, represented by former Solicitor General Paul Clement and lawyers from Cause of Action Institute, petitioned the Court in November to review the fishermen’s case.

“If Chevron really allows an agency to supplement its enforcement resources by forcing the regulated to fund additional regulators without express authorization or appropriation from Congress, then Chevron is in desperate need of some additional remarks from this Court, either to clarify that silence is not ambiguity or to inter this agency-empowering doctrine once and for all,” the fishermen argue in today’s filing.

The future of their industry may depend on whether the Supreme Court accepts the case. Clement said the justices should deliver a clear signal to regulators, as well as Congress, about the separation of powers.

“No federal law gives the NMFS or any other agency the power to force fishermen to pay monitor salaries,” Clement said. “When a federal agency grants itself the power to tax the regulated to pay for more regulators, no one is safe from government overreach and abuse.”

The federal government’s attempt to blanket over its misuse of power demonstrates why the Supreme Court must step in to overrule Chevron and return lawmaking to Congress rather than federal bureaucrats, according to Cause of Action Institute counsel Ryan Mulvey.

“The federal government knows it cannot defend this blatant attempt to bypass Congress and force economic harm on hardworking fishing families, so it must rely on a dubious legal doctrine,” Mulvey said. “The Supreme Court should reverse the courts below and either overrule or further limit Chevron. America’s constitutional principles are at stake. We are confident the Supreme Court will see through NMFS’s desperate arguments, bring justice to these fishing families, and deliver the long overdue deathblow to Chevron deference.”

You can read today’s filing on behalf of the NJ fishermen here.

Cause of Action Institute has compiled background information here, including links to filings, amicus briefs, and a short video featuring interviews with the NJ fishermen.