The United States Supreme Court heard two related cases on January 17 which have significant ramifications for federal agencies and the rules and regulations they create that can harm businesses, families and our constitutional freedoms.
On the surface, the two cases, brought by herring fishermen against the Department of Commerce, seem simple: Does the National Oceanic and Atmospheric Administration (NOAA), a DOC agency, have the legal authority to force herring fishermen to pay for federal monitors on their boats, when the law passed by Congress does not specifically list herring boats in its monitoring requirements?
But the ramifications are broader: Do federal agencies have the power to make legal mandates beyond laws written by Congress? And must courts generally defer to the agencies, as the Supreme Court decided in 1984 in Chevron v. Natural Resources Defense Council?
When government agencies create regulations beyond specific statutes, unelected administrators are, in essence, writing laws that can affect all of us.
The Chevron decision, in an opinion written by Justice Antonin Scalia, initiated a two-step process for evaluating cases involving federal laws and their implementation by agencies.
In the first step, the court decides if congressional intent was clear in a given law. If the intent is unclear, then the court decides if an agency’s interpretation of the law is “arbitrary, capricious, or manifestly contrary to the statute.”
The second step requires courts to defer to an agency’s regulations – as long as the agency’s interpretation of the law is “reasonable.”
As City Journal opined, this gives agencies “great leeway in administering broadly worded statutes.”
The first case, Loper Bright Enterprises v. Raimondo, was brought by fishermen from Cape May, New Jersey, and the second case, Relentless v. U.S. Dept. of Commerce, was brought by fishing businesses in Kingstown, Rhode Island.
The legal fracas began when Congress gave the NOAA the power to mandate monitors on commercial fishing boats, says the Loper Bright website.
At first, the agency paid for the monitors, but when the agency ran out of money, they required the fishing businesses to pay for the monitors on their boats – to the tune of “more than $700 per day per ship.”
Not a bad gig if you can get it.
With the mandate eating up 20% of their revenues and threatening established, “decades-old family operations,” the fisherman filed suit.
Both Loper Bright and Relentless claim that the NOAA has too much power to create and enforce rules outside the written law and are asking the Court to overturn the Chevron decision.
The cases were argued separately, because Justice Ketanji Brown Jackson recused herself in the Loper Bright hearing, having served on that case at the U.S. Court of Appeals for the District of Columbia Circuit.
In testimony at the Supreme Court on behalf of the Relentless plaintiffs, attorney Ramon Martinez argued that Chevron should be overturned because:
- First, Chevron violates the Constitution. Article III empowers judges to say what the law is. It requires them to interpret federal statutes using their best and independent judgment.
- Chevron also violates the APA (Administrative Procedure Act). As Justice Scalia wrote, the APA’s text contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes.
- And, third, this Court’s only justification for Chevron is the implied delegation theory, but that theory is a fiction. There’s no reason to think that Congress intends every ambiguity in every agency statute to give agencies an ongoing power to interpret and reinterpret federal law in ways that override its best meaning.
The “implied delegation theory” is the idea that “Congress intends agencies to write regulations that have the force of law,” so courts should defer to those agencies and their interpretation and implementation of laws.
While the Court’s decision will directly affect these families and businesses, Mark Rienzi, president of the Becket Fund for Religious Liberty, explains that overruling Chevron has important ramifications for religious organizations, like the Little Sisters of the Poor.
The Little Sisters of the Poor are a Roman Catholic order of nuns founded by Jeanne Jugan in 1839 to care for the elderly poor. After the Affordable Care Act (Obamacare) was passed in 2010, the Department of Health and Human Services required the Sisters’ health care plans “to provide coverage for all contraceptive methods and sterilization procedures approved by the Food and Drug Administration as well as related education and counseling.”
Becket represented the Little Sisters in battles against a federal agency that created rules and regulations that had the force of law, violating their deeply held religious beliefs. Rienzi reminds us that the Sisters have won at the Supreme Court three times, but they are still threatened by HHS, as new administrations bring in new leadership to the agency.
Federal agencies have the power to make decisions that affect families, business and ministries; the Daily Citizen is following these significant cases and will keep you updated about the results.
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Image Credit: Loper Bright Case