Amicus Urges SCOTUS to Use Chevron to Check Agency’s ‘Unconstitutional Power Grab’

The “far-reaching question” that the U.S. Supreme Court will address in Loper Bright Enterprises v. Raimondo -- whether Chevron deference “should be overruled or at least clarified” -- implicates the separation of powers, said an amicus brief Thursday (docket 22-451) by the Atlantic Legal Foundation in support of the petitioners in the case. The petitioners are a group of vessel owners challenging the authority of the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Act to require them to pay the salaries of the federal observers they must carry onboard. The petitioners are asking SCOTUS to reverse a U.S. Appeals Court for the D.C. Circuit decision in NMFS's favor that critics of the ruling are calling clear agency overreach. Their opening brief is due Monday. It's a case expected to have broad implications for the future deference afforded federal agencies under Chevron to properly interpret and enforce the federal statutes they have authority over. In addressing the viability or scope of Chevron deference, SCOTUS should use the case “as an opportunity to correct, or at least admonish,” the “brazen disrespect” that NMFS holds for the Constitution’s appropriations clause, said the foundation. Over many decades, both the executive branch and Congress, “often in concert,” have violated “the letter and/or purpose” of the appropriations clause “in too many ways to catalog here,” it said. Only SCOTUS can begin to restore the clause’s “crucial constitutional check against abuse” of executive branch power. it said. SCOTUS has limited its review to the question of whether Chevron should be overruled, or at least clarified, so courts don’t equate “statutory silence with statutory ambiguity” for purposes of deferring to an agency’s assertion of controversial powers under a statute that it administers, said the foundation. If Chevron deference excludes anything, it should be the NMFS’ “unconstitutional power grab here,” it said. An agency interpretation can’t be “reasonable, or permissible, or consistent with congressional intent,” if it conflicts with the constitution, it said.