Amicus Brief: Loper Bright Enterprises v. Raimondo

Family-run fishing businesses face a fraught and competitive environment even before the intrusion of burdensome regulations. In this case, the National Marine Fisheries Service promulgated a rule for herring boats that sweeps in most such businesses, as portrayed in the Oscar-winning movie “CODA.” If a vessel needs a monitor and hasn’t already been assigned one under a federally funded program, it must pay for one itself. The cost for most herring boats exceeds $710 per sea day. Four family-owned fishing companies sued, arguing that the industry-funding requirement—which isn’t explicitly authorized by statute—will have a devastating economic impact on the herring fleet and will disproportionately impact small businesses, destroying historic communities.

The district court ruled for the government, finding that various provisions of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) conferred broad authority to implement regulations to carry out fishery management. Without any analysis, the court also found that, even if the statute were ambiguous, the government’s reading would be reasonable under Chevron, a 1984 Supreme Court case that established broad judicial deference to agency action. A divided panel of the D.C. Circuit affirmed, reasoning that the MSA’s authorization of monitors left room for agency discretion.

Now before the Supreme Court, MI filed an amicus brief, joined by professors Richard Epstein, Todd Zywicki, Gus Hurwitz, and Geoffrey Manne. We argue that the Court should take this opportunity to overhaul the Chevron-deference regime, because this experiment in rebalancing the relationship between administration and judicial review has failed. It has led to agency overreach, haphazard practical results, and the diminution of Congress. Although intended to empower Congress by limiting the role of courts, Chevron has instead empowered agencies to aggrandize their own powers to the greatest extent plausible under their operative statutes, and often beyond. Courts, in turn, have become sloppy and lazy in interpreting statutes. It’s a vicious cycle of legislative buck-passing and judicial deference to executive overreach.

Chevron deference rests on the presumption that Congress won’t over-delegate and that agencies will be loyal agents. But the past 40 years have shown that Congress loves passing the buck and agencies are actually principals who pursue their own interests. The time has more than come for the Court to revisit Chevron, whether it chooses to overrule it explicitly or keep it nominally under a newly restricted standard.

Law school associate Austin Severns provided research assistance for this filing.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Photo by DNY59/iStock