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James Valvo

Loper Bright Enterprises v. Raimondo confronts unlawful agency overreach.

WASHINGTON, DC (July 17, 2023) — A group of New Jersey herring fishermen today filed opening arguments asking the Supreme Court to strike down an unlawful federal regulation that could force them to surrender 20 percent of their earnings to pay for at-sea monitors. The regulation, argue the fishermen, is not supported by law.

Former U.S. Solicitor General Paul Clement and lawyers from Cause of Action Institute represent the fishermen. They hope the justices will use the case to overrule Chevron deference, a legal doctrine that requires federal courts to defer to agency interpretations of law, even in the absence of expressed congressional authorization.

“It’s humbling that a few herring fishermen like us could bring such an important case to the nation’s highest court,” said Stefan Axelsson, one of the fishermen who brought the case. “If the government can do this to fishermen trying to make an honest living, they can do it to anyone.”

A decision favoring the fishing businesses would have far-reaching consequences. For nearly 40 years, people from all walks of life have been denied fair hearings in federal courts due to Chevron, which puts tremendous power hands of unelected bureaucrats.

Overruling Chevron would restore justice and constitutional checks and balances among the three branches of government.

The fishermen’s case, Loper Bright Enterprises v. Raimondo, challenges a regulation that would unlawfully force them to pay for government-mandated monitors who ride their boats, observe fishing operations, and report back to the government. The government expects these third-party monitors will cost the fishermen as much as $700 per day, in some cases making the monitor the highest-paid person on the boat.

The fishermen concede federal law allows the government to require at-sea monitors on their boats, but they argue Congress never gave the executive branch further authority to pass monitoring costs onto herring fishermen. Lower courts allowed the NOAA mandate to stand, citing Chevron deference.

In the brief filed today, the fishermen argue NOAA abused its authority, in part because Chevron forecloses a vital judicial check on executive overreach.

Chevron has seriously distorted how the political branches operate,” Clement wrote. “Thanks to Chevron, Congress does far less than the Framers envisioned and the executive branch does far more, as roughly half of Congress can count on friends in the executive branch to tackle controversial issues via executive action without the need for compromise, bicameralism, or presentment.”

“It’s a classic David versus Goliath story,” said Ryan Mulvey, an attorney with Cause of Action Institute and a co-counsel representing the fishermen. “Chevron deference tips the scales of justice towards powerful federal agencies and away from citizens like the fishermen who are seeing their livelihoods threatened by a bureaucracy run amok,” Mulvey said.

“It’s been a long road with many bumps and challenges, but this case is about fairness and honest government. It needs to be fixed,” Axelsson said.

You can read the fishermen’s filing here.

The Supreme Court agreed to take the case on May 1.

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

About Cause of Action Institute: Cause of Action Institute is a 501(c)(3) non-profit, a part of the Stand Together community, working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

About Clement & Murphy: Paul Clement served as United States solicitor general from 2004 to 2008. Over the past three Supreme Court terms, attorneys with Clement & Murphy have argued 14 cases and prevailed in 12. Its team has successfully litigated both alongside and against the United States government, as well as federal agencies, and we have successfully secured certiorari over the federal government’s opposition and successfully opposed certiorari when the federal government has sought it.