The Supreme Court Takes the Case to Consider the Future of Chevron
Cause of Action Institute (“CoA”) represents a group of herring fishermen from Cape May, New Jersey. They are the classic American story: family businesses grown and passed down to the next generation. But now they face an existential threat: their own government. The Magnuson-Stevens Act gives the government the authority to place “observers” on the fishermen’s boats. These government minders watch the fishermen work to make sure they don’t break any laws. It’s like carrying a state trooper in your car to make sure you don’t speed.
But then the government ran out of money to pay for certain monitoring programs. Instead of asking Congress for more money, the government decided the fishermen must pay the salary of the third-party contractors. This can be $700 per day, which is more than a captain would make and could drive the boats out of the fishery. An industry already beleaguered by overlapping state and federal regulations, plus strict limits on how much they can catch, now must pay for the government to do its job.
Several fishermen, represented by CoA and former U.S. Solicitor General Paul Clement, have successfully petitioned the Supreme Court to take this case.
The Law is Clear
Statutory context makes clear Congress knew how to delegate authority for industry-funded monitoring but decided not to for the herring fishery. Unfortunately, the D.C. Circuit held this silence was ambiguous and thus, due to Chevron deference, it must assume the government’s interpretation of the statue is correct. As a result, the court allowed the government to mandate regulations that Congress never authorized.
Overrule Chevron Deference
Chevron Deference allows government agencies to push their regulatory authority well beyond what Congress intended in statutes—with a thumb on the scales of justice, the government almost always wins. While the Supreme Court has stopped citing Chevron, lower courts still routinely will—it must be overturned or modified to curb this regulatory abuse.
The Supreme Court should either overrule Chevron or clarify that unelected bureaucrats cannot compel fishermen to pay at-sea monitors without a clear authorization from Congress. This case provides that opportunity.
What’s Next?
We are now in the merits briefing cycle, and the case will likely be argued later this fall. If your organization or client is interested in participating in the case by filing an amicus brief, please let us know by emailing Eric Bolinder at eric.bolinder@causeofaction.org.
Download a case summary on Loper Bright Enterprises v. Raimondo here.
Media Contact
Bill McMorris – bill@touchdownstrategies.com
Related Documents
Supreme Court of the United States
Amicus Briefs in Support of the Petition
Cato Institute and Liberty Justice Center
Competitive Enterprise Institute and Manhattan Institute
Center for Constitutional Jurisprudence
Buckeye Institute and National Federation of Independent Businesses
West Virginia and 17 Other States
Independent Women’s Law Center
Right to Work Legal Defense Foundation, Inc.
Relentless Inc., Huntress Inc., Seafreeze Fleet LLC
Advancing American Freedom, Pelican Institute, America First Legal Foundation
Click here for a rundown of the briefs with selected quotes from each.
United States District Court for the District of Columbia
February 19, 2020: Complaint and Exhibits
June 8, 2020: Plaintiffs’ Motion for Summary Judgement
August 14, 2020: Plaintiffs’ Reply Brief
June 15, 2021: District Court Opinion
United States Court of Appeals for the District of Columbia Circuit
November 16, 2021: Appellants’ Opening Brief
January 6, 2022: Appellants’ Reply Brief
February 8, 2022: Oral Argument Recording
August 12, 2022: DC Circuit Opinion
Media
Supreme Court to Hear Fishermen’s Chevron Challenge
The Supreme Court has an opportunity to correct one of the most consequential judicial errors in a generation.
Paul Clement on the Hugh Hewitt Show
Former Solicitor General Paul Clement has argued 100+ cases before the United States Supreme Court, but we really need SCOTUS to have him back to argue the merits of “chevron deference” in the case of Loper Bright Enterprises.
Ryan Mulvey on the Lars Larson Show
TheLarsLarsonShow · Ryan Mulvey – Why does the Chevron doctrine force fishermen to give up 20% of their pay?
Fate of NJ Fishermen in the Hands of Supreme Court
Final brief urges SCOTUS to reject fed’s attempt to sidestep the Constitution, overrule Chevron
18 State Attorneys General File Amicus Brief Urging SCOTUS Review of Chevron Deference
IMMEDIATE RELEASE Contact: James Davis, james@touchdownstrategies.com, (703) 635-5600 Contact: James Valvo, media@causeofaction.org * * * 18 State Attorneys General File Amicus Brief Urging SCOTUS Review of Chevron Deference 14 amicus briefs filed by 39 organizations, individuals, and states WASHINGTON, DC, December 18, 2022—Eighteen state attorneys general urged the U.S. Supreme Court […]
ICYMI: Paul Clement; Cause of Action Institute Petition SCOTUS to Review Chevron in Fishermen Case
IMMEDIATE RELEASE Contact: James Davis, james@touchdownstrategies.com, (703) 635-5600 Contact: James Valvo, media@causeofaction.org * * * IN CASE YOU MISSED IT Paul Clement; Cause of Action Institute Petition SCOTUS to Review Chevron in Fishermen Case Former U.S. Solicitor General Paul Clement and Cause of Action Institute petitioned the U.S. Supreme Court on […]
NJ Fishermen Ask Supreme Court to End Unlawful, Job-Killing Mandate
IMMEDIATE RELEASE Contact: James Davis, james@touchdownstrategies.com, (703) 635-5600 Contact: James Valvo, media@causeofaction.org * * * Paul Clement unites with Cause of Action Institute to petition Court to overrule Chevron deference Bureaucrats bypass Congress to force herring fishermen to pay for at-sea monitors WASHINGTON, DC, November 10, 2022—Former U.S. Solicitor General Paul […]
Court Filings: Loper Bright Enterprises, Inc v. Gina Raimondo
Read important filings and follow updates in the case:
Herring fishermen appeal district court decision upholding industry-killing at-sea monitoring regulations
Washington D.C. – Cause of Action Institute today filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of several family-owned fishing companies based in New Jersey, who hope to block a new regulation that would force them to pay for […]
Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule
Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate […]
Family Fishermen Challenge Illegal, Industry-Killing At-Sea Monitoring Rule from Department of Commerce
The federal government finalized this regulation despite having no authority from Congress to do so
CoA Institute Highlights Deficiencies in Proposed Rule to Shift Burdensome Costs of At-Sea Monitoring to Commercial Fishermen
The New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), seeks to approve and implement a controversial set of regulatory amendments that would create a new industry-funding requirement for at-sea monitoring in the Atlantic herring fishery and, moreover, create a standardized process for introducing […]
In the News
Fishermen sue Biden administration over federal regulations, David Spunt, Fox News Special Report (Video)
A Welcome Supreme Court Review of Chevron Deference, The Editorial Board, Wall Street Journal
Supreme Court to consider weakening power of federal agencies in fisheries case, Lawrence Hurley, NBC News
Fishy Politics: Government Bureaucracy for the NJ Fishing Industry, American Potential Podcast
The National Agricultural Law Center: Ag and Food Law Daily Update: August 16, 2022
Herring Fishermen Must Pay for At-Sea Federal Monitoring Program, Maya Earls, Bloomberg Law
D.C. Circuit Review – Reviewed: Looking for a Theme …, Aaron L. Nielson, Yale Journal on Regulation
Fishermen lose challenge to rule requiring at-sea monitors, Sebastien Malo, Reuters
Fishermen file lawsuit against herring at-sea monitoring rule, Chris Chase, Seafood Source