House Speaker Kevin McCarthy’s chamber is urging the Supreme Court to reconsider the level of deference courts give federal agencies, saying that allowing them too much leeway conflicts with the separation of powers and upends congressional authority over lawmaking.
The House filed its brief in a case that stems from a dispute between herring fishers and the National Marine Fisheries Service, which wants to charge vessels as much as $700 a day to monitor what they are catching.
Fishing industry advocates say that while the law passed by Congress allows for the monitors, the agency is making up its own rules by insisting the boats pay the charges.
The high court agreed to hear the dispute in May, but has not scheduled oral arguments for the legal battle during its 2023 term, which begins in October.
The justices will decide whether to overrule Chevron v. Natural Resources Defense Council, 1984 precedent that gave federal agencies deference when interpreting how to implement legislation passed by Congress when lawmakers were silent with respect to certain aspects of enforcement.
Critics argue Chevron is the stuff of Orwellian dystopias, siphoning massive amounts of political power away from Congress and the courts and turning it over to unelected, anonymous bureaucrats.
Defenders, though, say the 1984 case blazed a path to good government, putting the experts at federal agencies in charge of the finer points of policymaking.
In the ensuing decades, the case has become legendary, less for what it said than the way it has been used by some lower courts — particularly the appeals court in Washington that handles so many agency cases — to create a presumption in favor of an agency’s decisions.
Mr. McCarthy and House lawmakers have sided with the fishermen, arguing that if courts give federal agencies too much discretion it will conflict with congressional authority — clashing the executive branch into the legislative.
“Treating statutory silences standing alone as delegations of power would make it extraordinarily difficult for Congress to constrain agency authority,” House counsel wrote in its amicus brief filed with the justices this week.
The House said that rather than courts presuming agencies have broad discretion if a law is silent as to an aspect of how the agency should carry out enforcement, courts should infer that the agency lacks the authority.
Mr. McCarthy said the GOP wants to curb federal power.
“As part of our Commitment to America, House Republicans pledged to hold Washington accountable. The Chevron framework makes it easier for unelected bureaucrats to weaponize federal regulations against the American people. The court should rein in the power of unelected bureaucrats and restore the separation of powers,” the California Republican said.
Additionally, 18 GOP senators and 18 GOP House members have petitioned the high court, siding with the fishermen. And 27 states led by West Virginia Attorney General Patrick Morrisey have sided against the feds.
“Congress’ words matter, not agencies’ policy preferences. And agencies shouldn’t be permitted to take advantage of statutory silence or ambiguity to extend their powers beyond what Congress intended,” Mr. Morrisey said.
The other states joining West Virginia’s brief: Alabama, Kansas, Kentucky, Alaska, Arkansas, Louisiana, Florida, Mississippi, Missouri, Georgia, Montana, Idaho, Nebraska, Indiana, Iowa, Tennessee New Hampshire, North Dakota, Texas, Ohio, Utah, Oklahoma, Virginia, South Carolina, South Dakota and Wyoming.
The case is Loper Bright Enterprises v. Gina Raimondo, who is secretary of commerce.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.