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.

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Contact:  James Davis, james@touchdownstrategies.com, (703) 635-5600

Contact:  James Valvo, media@causeofaction.org

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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 Thursday to limit Chevron deference “in a way that is consistent with the separation of powers and the principles of federalism. Otherwise, it’s time to toss it.”

The attorneys general’s request is just one of 14 amicus briefs filed by 39 organizations, individuals, and states in the case of New Jersey fishermen challenging an unlawful federal mandate that requires Atlantic herring fishermen to pay more than $700 per day for monitors to ride their boats, observe their activities, and report to the government.

The fishermen argue Congress never granted the National Oceanic and Atmospheric Administration the authority to force fishermen to pay for monitors. The D.C. Circuit Court of Appeals ruled against the fishermen citing Chevron deference, which requires courts to defer to federal agencies when congressional intent in ambiguous.

Former U.S. Solicitor General Paul Clement and attorneys from Cause of Action Institute petitioned the Court in November to hear the fishermen’s case (Loper Bright Enterprises, Inc. v. Gina Raimondo) and to overrule Chevron. They argue Chevron undermines congressional authority and the judiciary’s responsibility to interpret law.

Other organizations, individuals, and businesses filing amicus briefs include:

• Advancing American Freedom
• America First Legal Foundation
• Buckeye Institute
• Cato Institute
• Center for Constitutional Jurisprudence
• Christian Employers Alliance
• Competitive Enterprise Institute
• Independent Women’s Law Center
• Liberty Justice Center
• Manhattan Institute
• National Federation of Independent Businesses
• New England Legal Foundation
• Pacific Legal Foundation
• Pelican Institute
• Right to Work Legal Defense Foundation, Inc.
• Southeastern Legal Foundation
• Fishing industry participants David Goethel and John Haran
• Fishing businesses Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC

“This tremendous support highlights the broad agreement that the Supreme Court needs to revisit Chevron and ensure federal agencies do not usurp the constitutional authorities reserved for Congress and the courts,” James Valvo, executive director of Cause of Action Institute, said.

The federal government response to the fishermen’s petition is due January 17, 2023.

You can find the complete list of amicus briefs here.

Additional information about the fishermen’s case can be found here.

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Contact:  James Davis, james@touchdownstrategies.com, (703) 635-5600

Contact:  James Valvo, media@causeofaction.org

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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 Thursday to review a case that challenges an unlawful federal regulation requiring herring fishermen to pay the costs of hosting government-mandated observers on their boats. Central to the case is Chevron deference and the ability of federal courts to overrule executive branch actions that have no basis in law.

From Reuters, Nov. 10:

New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.

The fishing companies say the … rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. …

A petition filed by attorney Paul Clement with the high court Thursday asked the court to take the case and find the rule requiring fishermen to pay for the monitors is inconsistent with the Magnuson-Stevens fishing act or to overturn the Supreme Court’s 1984 Chevron v. Natural Resources Defense Council. That ruling, widely known as “Chevron deference,” directs judges to defer to agencies’ interpretation of laws that may be ambiguous. …

Chevron deference has been widely cited by federal courts to back agency rulemaking … [and] viewed with increasing skepticism in recent years, especially among conservatives, including Supreme Court Justice Neil Gorsuch. Gorsuch, while serving as a judge on the 10th Circuit Court of Appeals, criticized the precedent in 2016, saying it allows the executive branch of the federal government to “swallow huge amounts of core judicial and legislative power.”

Read the full Reuters article here.

To schedule an interview with the Cause of Action attorneys, contact James Davis at james@touchdownstrategies.com or by phone at (703) 635-5600.

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Contact:  James Davis, james@touchdownstrategies.com, (703) 635-5600

Contact:  James Valvo, media@causeofaction.org

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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 Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging an onerous and unlawful federal mandate. Central to the case is Chevron deference and the ability of federal courts to overrule executive branch actions that have no basis in law.

National Oceanic and Atmospheric Administration (NOAA) regulations force herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.

“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”

Watch a video profile of the case.

Federal law authorizes the placement of at-sea monitors, but not passing the cost of monitors onto herring fishermen. When NOAA realized it would be unable to afford its desired herring monitoring program, the agency shifted the costs to fishermen instead of seeking additional funds from Congress.

Read the petition.

Interestingly, Congress has already spoken to the issue of industry funding.  It gave NOAA explicit authority to require fishermen in certain fisheries to pay for at-sea monitors. But Congress considered and rejected granting that authority over the herring fishery at issue in this case.

“It is the duty of the judiciary to step in when any branch of government has abused its power,” said Paul Clement. “This case is about correcting one such abuse and reining in executive overreach that threatens the livelihoods of fishing families and the constitutional balance of power.”

Overturning Chevron Deference

The case, Loper Bright Enterprises v. Raimondo, has the potential to set a landmark precedent by overruling Chevron deference, a decades-old legal doctrine that has allowed Congress to outsource lawmaking to executive agency employees. That standard has all but guaranteed government victories in regulatory cases by giving unelected bureaucrats carte blanche for rulemaking without congressional approval.

There are indications the federal judiciary is prepared to revisit Chevron. The D.C. Circuit Court of Appeals upheld the at-sea monitor requirement based on Chevron in a 2-1 ruling. In a strong dissent, Judge Justin Walker derided NOAA’s attempt to circumvent Congress:

Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships. But until Congress does that, the Fisheries Service cannot.

“Congress did not give NOAA the power to outsource the costs of at-sea monitors,” said Cause of Action Institute Counsel Ryan Mulvey. “It is time for the Supreme Court to do away with Chevron and return lawmaking to its rightful place in Congress and statutory interpretation to its rightful place: the judiciary, not the executive branch.”

The fishermen received legal assistance from Cause of Action Institute, a non-profit devoted to individual liberty.

The petition is available on Cause of Action Institute’s website. Background information, including the petition, motion, and lower court rulings, can be found here.

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About Cause of Action Institute: Cause of Action Institute is a 501(c)(3) non-profit 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.