Amicus Brief: Loper Bright Enterprises, et al. v. Gina Raimondo, et al.

Washington, DC (July 24, 2023) – Today, the New Civil Liberties Alliance filed an amicus curiae brief calling on the U.S. Supreme Court to overturn its destructive Chevron precedent in Loper Bright Enterprises, et al. v. Gina Raimondo, et al. The brief also asks the Court to set aside a rule promulgated by the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NOAA Fisheries).

The agencies’ Final Rule requires fishing companies to pay for government monitoring of their herring catch, but no statute authorizes the agencies to obtain funding from regulated parties. Nevertheless, in August 2022, the U.S. Court of Appeals for the D.C. Circuit invoked the Chevron precedent in Loper Bright v. Raimondo, ruling that NOAA Fisheries’ Final Rule was allowable under an expansive reading of the Magnuson-Stevens Act. Chevron requires federal judges to defer to federal agencies’ reasonable interpretations of ambiguous statutes.

NCLA’s amicus brief—co-authored by founder Philip Hamburger—makes important arguments against Chevron deference that the Court has never evaluated. First, it points out that deference requires judges to abandon their duty of independent judgment. This ancient duty is inherent in the office of being a judge and carefully protected in the Constitution by life tenure, a rule against salary diminishment, and other protections. Yet Chevron tells judges they must defer instead in their legal rulings to members of the Executive Branch who lack independence.

Second, the brief argues that Chevron deference denies due process of law by requiring judicial bias in favor of one party to a case—the powerful government, no less—and against the other party in court. This systematic bias would not be tolerated in any other context, but it has been polluting Chevron cases for nearly four decades. The brief also explains why certain excuses for Chevron bias fail, why stare decisis cannot justify retaining deference, and why the Court needs to repudiate Chevron deference altogether, rather than try to shore it up at the margins.

Last month, NCLA filed a petition for a writ of certiorari with the Supreme Court challenging the same Final Rule and Chevron in Relentless v. Dept. of Commerce. In that case, NCLA asks the Court to resolve a split between the U.S. First and Fifth Circuit Courts of Appeals. The First Circuit relied on Chevron to uphold the Final Rule. The Fifth Circuit instead eschewed Chevron and set aside a different NOAA Fisheries rule requiring constant GPS tracking of recreational charter fishing vessels in Mexican Gulf Fishing Company v. U.S. Dept. of Commerce.

Loper Bright v. Raimondo and Relentless v. Dept. of Commerce give the Supreme Court every opportunity to correct its Chevron error, restoring judicial independence and due process. The Court should take full advantage.

NCLA released the following statements:

“The combination of judicial power in the courts and judicial duty in each judge is profoundly important, even if often forgotten. The breadth of the institutional power is tempered by the narrow duty of the individuals who oversee it, centrally the duty of independent judgment. The tight personal duty limits the danger from the breadth of institutional power. Article III makes no allowance for judges to abandon their duty of independent judgment, let alone to defer to decisions of persons who are not independent judges.”
—Prof. Philip Hamburger, Founder and CEO, NCLA

“The willingness of the Court to take this case raises the hope that a doctrine that empowers regulators and disempowers citizens will finally hear its death knell.”
—John Vecchione, Senior Litigation Counsel, NCLA

“The fishermen in Loper Bright and Relentless suffer under the same unlawful NOAA Fisheries rule featured in the Oscar-winning best picture, CODA. The Court needs to deep-six Chevron, before the next small business must take on a federal agency in a court proceeding infected with systematic judicial bias. Absent Chevron deference, no judge would read the Magnuson-Stevens Act to authorize forcing these fishermen to pay for at-sea monitors.”
—Mark Chenoweth, President and General Counsel, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (December 16, 2022) – Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, corporations operating in the herring fishery off the coast of New England, have filed an amicus curiae brief in support of Loper Bright Enterprises’ petition for a writ of certiorari in Loper Bright Enterprises, et al. v. Raimondo, et al. These Rhode Island small businesses urge the Supreme Court to review this case to (1) resolve the circuit split in how Chevron deference applies to agency actions under the Magnuson-Stevens Act (MSA); and (2) halt a regulation which allows the National Marine Fisheries Service (NMFS) to charge fishermen unlawfully for a government function Congress has not approved and apparently does not believe to be worth spending Americans’ tax dollars on. The New Civil Liberties Alliance represents amici here as parties in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al., now pending in the U.S. Court of Appeals for the First Circuit.  

Without statutory language authorizing it, NMFS implemented a rule forcing regulated fishers to pay the salary of federal observers who track their catch. A divided panel of the D.C. Circuit ruled in Loper Bright that Congress silently empowered NMFS to promulgate this at-sea monitor regulation. The D.C. Circuit wrongly applied Chevron, ruling that statutory silence produced an ambiguity that justified deferring to the agencies. A circuit split exists between the Fifth Circuit and the D.C. Circuit on the application of Chevron in interpreting the MSA. The Supreme Court should grant certiorari to ensure the MSA is interpreted uniformly in all the nation’s fisheries.

More fundamentally, agencies must not be allowed to circumvent congressional appropriations by forcing the regulated to pay government salaries. Incredibly, the agencies being sued here admit that the regulation at issue was implemented precisely because Congress would not fund the statutorily designated “observer” program at the levels the agencies wanted. This disturbing development may metastasize if not stopped by the Supreme Court now. In this area of law, lower courts like the one below in this matter are confusing legitimate regulatory “costs,” such as providing berths for observers, with paying the salaries of those paid to perform government functions. The Supreme Court should grant certiorari to clarify that incidental “regulatory costs” do not include the salaries of the government agents enforcing the regulations without explicit Congressional authorization. Agencies may not use Chevron deference to infer such novel authority from statutory silence.  

NCLA released the following statements: 

“Chevron deference ought to go, as the Petitioners ask. But at a minimum, agencies cannot fund themselves with money from the regulated for things Congress is unwilling to pay for. That reflects a new level of agency hubris.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

“In the nearly 40 years since Chevron was decided, one thing has become abundantly clear: when courts apply Chevron deference, the government wins at staggering rates, and almost exclusively to the detriment of ordinary Americans and small businesses like Petitioners and NCLA’s clients. Whatever question the ‘bare quorum of the Court’ that decided Chevron thought it was answering all those years ago, it has morphed into a threat to individuals’ civil liberties and the federal judiciary’s core duty to determine the nation’s laws impartially.”
— Kara Rollins, Litigation Counsel, NCLA

For more information visit the amicus brief page here. 

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. 

Download the full document