WASHINGTON – Commercial fishermen have long been uncomfortable with a law that lets government monitors board their vessels to observe the fish they catch. And the fishermen say if that wasn’t bad enough the National Marines Fisheries Service passed a rule that requires them to pay the wages of the monitors taking a seat on their boats that could otherwise go to a paying customer. It’s a burden that can add up to a whopping $700 every day.
“There’s going to be plenty of trips where that monitor will make more than myself or my crew,” said Stefan Axelsson, a commercial fisherman.
He and other herring fishermen from Cape May, New Jersey sued over the rule and their case will be heard by the Supreme Court next term, where it will be argued by famed appellate lawyer Paul Clement.
“When you have the federal government regulating small businesses it’s just not a fair fight,” Clement recently told The Hugh Hewitt Show.
However, instead of just hearing the specifics of this case alone, justices have chosen to take on the bigger issue by reviewing the power of the entire federal bureaucracy. Specifically considering one of the most important – and powerful – principles in the world of bureaucratic rulemaking known as the “Chevron doctrine.”
That doctrine comes from a unanimous Supreme Court ruling in a 1984 case dealing with EPA regulations of power plants. The high court’s decision developed a rule for lower courts to follow when hearing challenges to federal regulations that basically says, if a law passed by Congress isn’t clear or is silent on a given issue then courts should accept what a government agency thinks that law means.
That ruling gave Washington bureaucracies wide latitude over the years to come up with their own interpretations of various laws – potentially strengthening their own powers. That, in turn, has created headaches for everyday Americans faced with trying to follow seemingly never-ending and constantly growing lists of federal regulations from an increasing number of government agencies.
“I mean, in a system where we’re trying to protect the liberty of the individual you would think that the rule is if the statute is unclear the tie ought to go to the citizen not that the tie ought to go to the government,” Clement explained.
The Chevron doctrine is so interwoven into American case law it’s been cited more than 80,000 times. A decision by the Supreme Court to scrap it would send shockwaves through the halls of Congress and the White House, potentially upending the way both branches implement policy.
That’s because they both use Washington’s massive administrative state to their advantage. Congress often passes vague laws leaving the details to federal bureaucrats in a process that gives members political cover when the final product ends up hurting well-meaning citizens.
Presidents also use agencies to bypass Congress to advance their agendas.
In fact, the current court has already shown its frustration with the Chevron doctrine.
“I think under Chief Justice John Roberts, especially within the last few terms, the court has strongly signaled a kind of skepticism to the administrative state that we haven’t seen in the Supreme Court in some time,” explained Jack Fitzhenry, a legal fellow at the Edwin Meese Center for Legal and Judicial Studies at the Heritage Foundation.
In a 2013 dissent in City of Arlington v FCC, Chief Justice John Roberts wrote, “The administrative state with its reams of regulations would leave {the founders} rubbing their eyes.”
He continued, “The danger posed by the growing power of the administrative state cannot be dismissed.”
However, James Goodwin with the Center for Progressive Reform warns getting rid of Chevron altogether could invite chaos and even judicial activism if judges, inexperienced in administrative law, are given room to “impose their policy preferences for that of Congress’s.”
He told CBN News, “That’s like having baseball umpires figuring out the finer contours of what constitutes a ‘reception’ in the NFL. That is no way to run a legal system.”
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Still, Fitzhenry argues the power of federal agencies should be kept in a constitutional context. That is give expert advice, not take over authority or cook up new mandates as though they’re a parallel government run by unelected bureaucrats.
“When we as average citizens tolerate that, however slowly, it’s allowing a different type of government to form alongside the constitutional infrastructure that we’ve come to appreciate,” he said.
He points to the Department of Labor’s COVID-19 vaccine mandate for certain employers that caused such a stir. It was a rule made by a federal agency that affected a huge number of Americans, and, many argue, blatantly violated their constitutional rights. At that time Congress was in session and had the ability to make such a requirement, but chose not to.
And studies show agencies won against citizens in lower courts more often than not 71 percent of the time between 2003-2013 according to a study by the Michigan Law Review.
“You know, it’s hard enough to call your congressperson and get their attention but try getting a hold of some regulator at the National Marine Fisheries Service or the Environmental Protection Agency or fill in the blanks and, you know, they’re not responsive,” Clement says.
When the Supreme Court hears arguments in the case next term, it could decide to completely scrap Chevron or simply weaken it, but no matter what the court decides, experts agree the administrative state – in some form – is here to stay.
The question is: will bureaucrats continue to wield the same power as they do today? Whatever the outcome, the ruling could affect Americans from all walks of life for decades to come.
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