In a ruling that not only blocks the feds from forcing commercial fishermen to pay for “quartering of government troops” on their boats, but also lets observers study the lexicographic legerdemain of politicians and judges who use words such as “regulation” and “rule” rather than “threat of government attack” and “edict,” the U.S. Supreme Court on Friday ruled in tandem on two cases with the same root question.
That question is whether “regulatory agencies” can expand their so-called power if the agency-creating statutes written by Congress happen to be “ambiguous.”
The cases are called “Relentless, Inc. v. Department of Commerce” and “Loper-Bright Enterprises v. Raimondo.” They pertain not only to the federal government forcing fishermen in Rhode Island and New Jersey to bring so-called “fish counters/monitors” onto their boats, but also to the “agency expansion” of that demand, an expansion that would have forced the fishermen to PAY THE SALARIES of the Sardine Stasi on their boats.
And, as one might have guessed, the two-in-one strike-down of the expansion doesn’t address the root problem of Congress creating the agencies in the first place.
The dispute goes back to at least 2016, when, atop the extant statutory demand that the fishermen welcome the agents aboard, the National Marine Fisheries “Service” (NMFS) claimed the power to force fishermen operating within so-called “U.S. waters” (12 miles or less from any ocean shore) to pay the interlopers, as well.
The Petitioner’s Brief for the “Loper Bright,” brought by a New Jersey family fishing company that was being driven out of business by the expense of the "fishing monitors," explains the dispute and the financial impact of having to pay each “monitor” upwards of $700-$800 per day.
“(S)eizing on the statute’s ‘silence’ and purported ‘ambiguity,’ NMFS declared that domestic vessels in the Atlantic herring fishery would have to cede upwards of 20% of their returns to pay observer salaries.”
Of course, the amount is not relevant. It’s the principle that counts.
But what really is the principle?
That is something that the SCOTUS might appear to have explored, but did not.
Indeed, with these rulings on, essentially, the same expansion of the “fish monitor” requirement, the majority ruled on whether the “process” of government lording over fishermen was conducted in a “proper way,” not whether the “lording over” is proper, in the first place.
The petitioners targeted a forty-year judicial standard established in the 1984 SCOTUS Chevron v. Natural Resources Defense Council ruling, which, itself, had seen Chevron Oil challenge the 1981 expansion of a 1977 Clean Air Act Amendment pertaining to emissions from numerous kinds of power plants, oil refineries, and more. In that ruling, the majority determined, as The Legal Information Institute at Cornell Law states:
“(T)he legislative history is consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments.”
In other words, in 1984, the Judicial Branch ruled that any time there was sufficient “ambiguity” in its establishing statute, or in a new statute for it to enforce, an agency of the Executive Branch should have such broad “discretion” that the agency could act as a de facto Legislative Branch and create its own powers. Should a victim of this new expansion want to appeal the expansion, the appeal would not be heard by the courts, but, instead - you got it - would be heard by the regulatory agency that just expanded its own power.
If you detect a lack of due process and the easy possibility of unjust punishment here, if you see violations of rights that are supposed to be protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments, you’re on target.
But that is not where the majority went on Friday. Instead, they ruled on the separation of powers and what such leniency for “regulatory” agencies does, which is to take away what the majority of SCOTUS Justices believe is a Judicial Branch purview.
As Jacob Sullum writes for Reason:
“Critics have long complained that Chevron deference allowed bureaucrats to usurp a judicial function and systematically disadvantaged ‘the little guy’ in disputes with an overweening administrative state. The Supreme Court endorsed that critique by a 6–3 vote today, repudiating the idea that agencies, rather than judges, should resolve ambiguities in the statutes under which they operate.”
Indeed, in his “Looper Bright” majority opinion, Chief Justice John Roberts cited the 1946 “Administrative Procedure Act,” itself a result of the toweringly unconstitutional profusion of FDR-era regulatory agencies that have expanded in number and offense ever since.
Related: Gov't Is Wiping Out the Lobster Population, But Blaming the Fishermen
As Cornell’s Legal Information Institute notes:
“(The) act establish(ed) how federal administrative agencies make rules and how they adjudicate administrative litigation.”
Roberts and the majority found fault with the “Chevron” theft of what they see as a judicial function, and now, they are pushing back.
As Sullum observes:
“Writing for the majority in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, Chief Justice John Roberts notes that the Administrative Procedure Act (APA) ‘incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions.’ He says ‘the deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.’"
And Sullum notes Roberts’ additional comment on this problem:
“The Chevron doctrine ‘defies the command of the APA that 'the reviewing court'—not the agency whose action it reviews—is to 'decide all relevant questions of law' and 'interpret… statutory provisions,'’ Roberts writes. ‘It requires a court to ignore, not follow, 'the reading the court would have reached' had it exercised its independent judgment as required by the APA… It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else—unless the prior court happened to also say that the statute is 'unambiguous.' That regime is the antithesis of the time honored approach the APA prescribes.’"
Of course, that “time-honored” approach really is not the core of the problem, and Roberts did not address the deeper issue.
Taking it from the immediate controversy, on the matter of the “fish counters,” one reasonably could conclude that no agent of a “constitutional” government should be demanding access to a private abode or piece of private property without a public warrant, issued by a judge, upon the judge’s determination of “probable cause.” Such a standard is explicitly established by the Fourth Amendment, and the federal demand that commercial fishermen admit government agents onto their boats fits within that standard. It also fits within the Fourth Amendment prohibition of those government agents collecting any information about what is happening on the boats. Without a warrant, any “fish counting,” on or off a boat itself, is a clear breach of the Fourth Amendment.
And it seems logical to reiterate that this also appears to be a breach of the principle enshrined in the Third Amendment prohibition against the government mandating that private property owners quarter troops.
Add to that the fact that the Congress was never vested with the power to write legislation to create a National Marine Fisheries Service or claim control over vast stretches of the ocean, and you have even more ammunition to stand against the core of the problem – the core that the SCOTUS did not address.
This ruling is a positive. It likely will see goon squads such as the ATF hesitate pushing new mandates on gun sellers and what they might want to sell. It might create a new firewall against the expansive reading of Title Nine of the “Education Amendments” of 1972 that Joe Biden is trying to employ in order to force colleges, elementary schools, and high schools to have to let males pretend to be females and enter the girl’s bathrooms. It might even stop the Securities and Exchange Commission creating its own unilateral rules over the legality and transparency of crypto-currency trades until Congress writes what, of course, would be another unconstitutional statute granting the unconstitutional SEC the power to focus on crypto, and it might stop the EPA from unilaterally clamping down on energy use by large Bitcoin Miners (using computers to work through the algorithm to create a new “coin.”)
So, ruling 6-3 in the cases, with Justice Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissenting, the Supreme Court has claimed back the judicial power over questions of “ambiguity” that for forty years have been “answered” by the very government agencies that expanded their power.
And, for now, the fishermen have won half a battle, but not the war. They won’t have to pay for “federal fish monitors,” but still will have to house them in births on their boats and welcome them to invade their private businesses, contrary to the Bill of Rights.
So there remains a cost. It’s the cost in loss of sovereignty and the continued dismissal of the US Constitution by those who swear oaths to uphold it.
That’s the dark side to this victory, but a victory it is, and, despite the rulings not questioning the underlying immorality of the regulatory agencies themselves, we might see vast changes to the way agencies behave without explicit Congressional.
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