‘NEVER WHAT FOUNDERS INTENDED’: Supreme Court Should Strike Down Chevron Deference, Conservatives Say
By: Tyler O’Neil / @Tyler2ONeil / July 24, 2023
FIRST ON THE DAILY SIGNAL—A conservative nonprofit launched by former Vice President Mike Pence is representing 11 conservative groups in supporting fishermen challenging the extensive power of the federal bureaucracy.
Advancing American Freedom, which plays no role in Pence’s 2024 presidential campaign, filed an amicus brief in the Supreme Court case Loper Bright Enterprises v. Raimondo, in which the court will revisit the longstanding precedent of Chevron deference. The group exclusively gave The Daily Signal a copy of the brief.
In Chevron v. National Resources Defense Council (1984), the Supreme Court held that whenever a law is ambiguous, a federal agency has the authority to interpret the scope and content of that ambiguity to achieve its ends, so long as the interpretation is “reasonable.” This precedent granted executive agencies tremendous power to effectively rewrite the law, critics like Advancing American Freedom claim.
“The Left has used Chevron Deference to grow the administrative state and circumvent the approval of Congress to push their own agenda,” J. Marc Wheat, Advancing American Freedom’s general counsel, told The Daily Signal. “This is never what the Founders intended; unelected bureaucrats at various agencies do not have the power to legislate and we hope that the Supreme Court checks the Chevron Deference once and for all.”
In Loper Bright, fishermen are challenging the National Marine Fisheries Service—represented by Commerce Secretary Gina Raimondo. Federal law forces fishermen to carry inspectors aboard their vessels. A new Fisheries Service rule forces the fishermen to pay the salaries of these federal inspectors. The federal law requiring the inspections does not stipulate that fishermen must pay inspectors’ salaries, but the Fisheries Service insists that it has the power to demand payment under Chevron.
A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the Fisheries Service in August 2022, noting that the statute leaves “room for agency discretion.” Yet Judge Justin Walker dissented.
“Did Congress authorize the National Marine Fisheries Service to make herring fishermen in the Atlantic pay the wages of federal monitors who inspect them at sea?” he asks in his dissent. “Congress unambiguously did not.”
“Fishing is a hard way to earn a living,” he notes. While “Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships,” it has not done so. “Until Congress does that, the Fisheries Service cannot.”
Advancing American Freedom filed the amicus brief on Monday, representing itself and ten other conservative organizations. Eagle Forum, the National Center for Public Policy Research, Project 21 Black Leadership Network, Students for Life of America, and Young America’s Foundation joined the brief. The brief begins by quoting the Declaration of Independence, noting that the Founders faulted King George III for erecting “New Offices… to harass” them “and eat out their substance.”
“Here, a New England fishing business is threatened with insolvency because a Federal agency seeks to swarm the industry with bureaucrats to consume the proceeds of some 20% of the daily catch,” the petitioners write. “Bureaucracies that have grown smug and fat through Chevron deference should reacquaint themselves with their country’s history.”
“This case presents the question of Chevron deference dead on without any need to tack, offering an excellent opportunity to abandon this sinking ship and to offer lower courts a more seaworthy vessel for judicial review,” the petitioners write.
Conservative Supreme Court justices have criticized Chevron deference in recent years. Justice Clarence Thomas wrote in his concurrence in Michigan v. EPA (2015) that Chevron “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch. Justice Neil Gorsuch wrote last fall that the court should acknowledge “that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning.”
Federal agencies have used Chevron deference to justify many controversial policies.
When the Supreme Court overturned Roe v. Wade last year, President Joe Biden directed his administration to “protect and expand access to abortion care.” Following the prompting of Health and Human Services Secretary Xavier Becerra, the Centers for Medicare and Medicaid Services issued guidance claiming to find an abortion mandate in a law that had never been interpreted as mandating abortion.
The federal agency interpreted the Emergency Medical Treatment and Labor Act, which requires health care providers to provide “stabilizing treatment” in certain circumstances, as mandating abortion. If a health care provider determines that abortion is necessary to protect the mother’s life, he or she must either perform the abortion or refer the woman to a medical facility that would perform it, regardless of the relevant state law.
Advancing American Freedom, representing 25 other conservative and pro-life groups, filed an amicus brief challenging this interpretation of the law. The brief argues that this interpretation “would expand the meaning of the 1986 statute to include abortions as a form of treatment and would illegally overwrite legitimate state laws designed to protect women and the unborn.”
As in Loper Bright, Advancing American Freedom urges the Supreme Court to overturn Chevron.
Tyler O’Neil @Tyler2ONeil
Tyler O’Neil is managing editor of The Daily Signal and the author of “Making Hate Pay: The Corruption of the Southern Poverty Law Center.”
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