Thursday, January 25, 2024

How Disgruntled Fishermen Could Prompt SCOTUS To Capsize The Administrative State; Supreme Court Poised to End ‘constitutional revolution’ That’s Marred US Governance for 40 Years; Fishermen Await Supreme Court Rulings That Could Change the Regulatory Authority of Federal Agencies

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How Disgruntled Fishermen Could Prompt SCOTUS To Capsize The Administrative State:
While you may not care about fisheries, you should care about Chevron deference, which gives too much power to unelected bureaucrats
The United States Supreme Court will hear oral arguments Wednesday in two companion cases that could put an end to our totalitarian administrative state: Relentless Inc. v. U.S. Dept. of Commerce and Loper Bright v. Raimondo.
Here’s your lawsplainer to understand the cases, the legal doctrine at issue — Chevron deference — the oral argument, the punditry surrounding the cases, and the significance of what, on its surface, may appear to be narrow and nerdy issues of administrative law. 
Relentless and Loper Bright: the Facts
In both Relentless and Loper Bright, commercial fishing companies sued the U.S. Department of Commerce, challenging a federal administrative rule that requires businesses to pay the cost of government-mandated monitors who travel aboard their vessels during fishing expeditions.
To understand how this administrative rule came about, one must move through the bowels of the federal bureaucracy, beginning first with Congress’s enactment of the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
That act, first passed by Congress in 1976 “to respond to the threat of overfishing and to promote conservation” but amended multiple times since, regulates marine fisheries, which are defined as “one or more stocks of fish.” To protect against overfishing, the MSA established eight regional councils to manage the various fisheries. In turn, those councils establish “fishery management plans,” which specify conservation measures to prevent overfishing.
The MSA tasked the secretary of commerce with reviewing each fishery management plan and related regulations, but the secretary delegated those responsibilities to the National Marine Fisheries Service (NMFS), a division of the National Oceanic and Atmospheric Administration. The NMFS uses regional councils to draft the fishery management plans, which the NMFS must then approve, disapprove, or partially approve. The NMFS and regional councils then issue regulations to implement the approved plans.
(I did warn that you were about to enter the entrails of the alphabet soup of the administrative state.) --->READ MORE HERE
Eric Kayne/ZUMA Press Wire /
Supreme Court poised to end ‘constitutional revolution’ that’s marred US governance for 40 years:
When Justice John Paul Stevens issued his 1984 opinion in Chevron U.S.A. v. National Resources Defense Council, he started what legal scholar Gary Lawson later called “nothing less than a bloodless constitutional revolution.”
At long last, on Wednesday, the Supreme Court will hear two cases that may signal the beginning of the end to that revolution.
Article I of the Constitution explicitly directs that “All legislative Power herein granted shall be vested in a Congress of the United States,” not regulatory agencies.
Yet Justice Stephens’ opinion found that “agenc[ies] may . . . properly rely upon the incumbent administration’s views of wise policy” in “reasonably” defining statutory ambiguities.
The legal doctrine that Chevron spawned became known as Chevron deference and former President Ronald Reagan’s White House counsel, Peter Wallison, pointed to it as “the single most important reason the administrative state has continued to grow out of control.”
Forty years of regulatory and judicial tumult has ensued, finally crescendoing to a point that has compelled the Supreme Court to intervene.
Loper Bright Enterprises v. Raimondo, from the District of Columbia Circuit, and Relentless v. Department of Commerce, from the First Circuit, are now before the court.
Both are companies that fish for herring in New England and are family-owned and -operated, and both are subject to the Magnuson-Stevens Act, which governs fishery management in federal waters.
The act allowed the National Marine Fisheries Service to require herring boats, relatively small vessels that normally carry only five to six people, to also carry federal monitors to enforce of its regulations.
As a next step, however, and without any express statutory authorization, the NMFS decided to require Loper Bright and Relentless to also pay the salaries of these monitors, estimated by the NMFS to be $710 per day, an amount that can exceed the profits from a day’s fishing.
Both circuits validated this rule by pronouncing statutory silence to be an “ambiguity” that required Chevron deference. --->READ MORE HERE

+++++Fishermen await Supreme Court rulings that could change the regulatory authority of federal agencies+++++

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