Supreme Court to Hear Fishermen’s Chevron Challenge

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Contact:  
Bill McMorris
bill@touchdownstrategies.com
(773) 951-7912

James Valvo
media@causeofaction.org

Case could restore judicial check on executive overreach.

WASHINGTON, DC, May 1, 2023—The Supreme Court announced today it will take up the case of New Jersey fishermen who are challenging the federal government’s attempt to unlawfully force them to pay monitoring fees without congressional approval—a case that gives the Court an opportunity to review and overrule the Chevron deference precedent. Critically, the Court granted only on Question Presented 2, which means it will directly address the future of Chevron. Learn More

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.

Eric Bolinder on the Steve Gruber Show

Ryan Mulvey on the Lars Larson Show

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

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.

18 State Attorneys General File Amicus Brief Urging SCOTUS Review of Chevron Deference

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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.

ICYMI: Paul Clement; Cause of Action Institute Petition SCOTUS to Review Chevron in Fishermen Case

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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.