ALF Argues No Chevron Deference For Unconstitutional Interpretations

Almost 40 years ago the Supreme Court held in Chevron U.S.A v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984), that “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” This Chevron doctrine “directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers.” Michigan v. EPA, 576 U.S. 743, 751 (2015).

As the federal administrative state has grown, Chevron deference to agency interpretations of supposedly ambiguous provisions in the statutes they administer increasingly has been criticized by judges, practitioners, and scholars. Justices Thomas and Gorsuch have strongly suggested that Chevron deference may violate the separation of powers because it undermines  the judiciary’s role in interpreting statutes. Now the Supreme Court, in Loper Bright Enterprises v. Raimondo, No. 22-451, has agreed to address whether the Chevron doctrine should be overruled, or at least clarified.

ALF has filed an amicus brief arguing that at the very least, the Court should hold that Chevron deference does not entitle a federal agency to engage in regulatory activity that itself violates the separation of powers. The amicus brief was authored by ALF Executive Vice President & General Counsel Larry Ebner. ALF Advisory Council member Herb Fenster provided substantial input.

Case Background

The Loper Bright case involves the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1884, which is administered by the National Marine Fisheries Service (NMFS).

The Petitioners own small vessels that fish for Atlantic herring. They are challenging a small-business-crippling NMFS regulation, 50 C.F.R. § 648.11(g), requiring them to hire, quarter on board, and compensate, at-sea “monitors.” These industry-funded regulatory inspectors act as government agents who perform essentially the same observational and data collection duties as federally funded at-sea “observers” in other NMFS-regulated fisheries. NMFS is requiring industry-funded monitoring in the Atlantic herring fishery because Congress has not appropriated funds to cover the cost of federally paid observers. Although the Act is silent as to whether industry-funded monitoring is permissible in the Atlantic herring fishery, NMFS not only interprets the Act as allowing it, but also contends that its self-serving interpretation is entitled to Chevron deference on the theory that statutory silence is the same as statutory ambiguity.

ALF’s Amicus Brief

ALF’s amicus brief argues that Chevron deference should not enable a federal agency to engage in unconstitutional regulatory activity.

More specifically, the brief argues that the NMFS scheme for circumventing the lack of congressional funding—requiring small businesses to incur the substantial financial and operational costs of at-sea regulatory compliance monitors— violates the separation of powers embodied by the Constitution’s Appropriations Clause, art. I, § 9, cl. 7. As a check against Executive Branch power, the Appropriations Clause gives Congress the “power of the purse.” The brief argues that “[a]t the very least, a federal agency should not be able to hide behind Chevron while arrogating to itself a pivotal power—here, the ‘power of the purse’—that the Constitution assigns exclusively to Congress.”

ALF argues that “[t]he industry-funded monitoring program being challenged in this case is an effort by NMFS to sever Congress’s purse strings, or at least avoid entanglement in them. This attempt at constitutional circumvention obstructs the purpose of the Appropriations Clause.”

ALF’s brief notes that over the course of many decades, both the Executive Branch and Congress, often in concert, have violated the letter and/or purpose of the Appropriations Clause in many ways. ALF calls upon the Court to correct, or at least admonish, the disrespect for the Appropriations Clause reflected in the NMFS regulation at issue in Loper Bright.

Read additional recent ALF amicus briefs concerning violations of the Appropriations Clause:

ALF Argues That CFPB “Self-Funding” Is Unconstitutional

ALF Argues That Half-Trillion Dollar Student Debt Cancellation Is Unconstitutional

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