Amicus Briefs in Loper Bright Enterprises, Inc. v. Gina Raimondo

Amici filed 14 briefs representing 38 organizations and states in support of the fishermen’s petition for review to the Supreme Court.  Here’s a rundown of the briefs with selected quotes from each. 

West Virginia and 17 Other States  

The confused status quo has real costs for the people who live and work within our borders. Because the problems with Chevron keep multiplying, no one really knows whether it is still viable or how courts should apply its teachings. Here, four federal judges reached three different conclusions after applying the same two-step doctrine to one statutory text. That outcome reflects the most common result of the uncertainty: The lower courts uphold even highly burdensome, novel, and textually suspect rules.  

. . .  

So letting Chevron die a long death from neglect is the wrong approach. The States, our residents, and our industries are hurt along the way. The Court should intervene now to limit Chevron in a way that is consistent with the separation of powers and the principles of federalism. Otherwise, it’s time to toss it. 

David Goethel and John Haran 

Mr. Goethel feared that the expense of paying for federally-imposed at-sea monitors would force him to sell his boat and abandon his longtime profession. And that is, in the end, what he did, after his 2016 lawsuit challenging the funding mandate was dismissed as untimely. 

. . .  

While the legal issues presented by the petition are consequential, so are the practical consequences of forcing vessel owners to pay for their own rideabord regulators. At stake is nothing less than the continued existence of a storied industry and way of life. 

Pacific Legal Foundation 

[T]he Justice Department is driving a vertical split in the federal courts. By muting her Chevron arguments, the Solicitor General decreases the likelihood this Court would employ (or even acknowledge) the doctrine, and the status quo is preserved. Meanwhile, government lawyers continue to encourage overbroad readings of Chevron in the lower courts. Amicus urges the Court to take this case and end the doctrinal division wrought by the government’s inconsistent Chevron arguments.

New England Legal Foundation 

In sum, certiorari is warranted to clarify that Chevron reinforces a federal court’s independent duty to enforce the plain language of a statute, in order to decide, in this case, whether Congress “silently” authorized NMFS to require any domestic fishing vessel to pay for at-sea observers. 

Cato Institute and Liberty Justice Center 

Only officially overruling Chevron can provide much-needed clarity to lower courts. And this case presents the Chevron question squarely, offering an excellent vehicle to reconsider that decision. This Court should grant certiorari and overrule Chevron. 

Competitive Enterprise Institute and Manhattan Institute 

A recent rule issued by the National Marine Fisheries Service (“the agency”) is out of constitutional bounds. When the agency issued that rule, it tried to exercise a constitutionally enumerated power that Congress never gave it: namely, the power to impose duties. That exercise of power is categorically distinct from the exercise of the incidental powers Congress necessarily assigns to agencies that allow them to function. The agency’s attempt to exercise this never assigned power not only goes beyond the authority Congress gave it; it goes beyond any authority that Congress could legitimately give it.  

Center for Constitutional Jurisprudence 

Under the decision below, the finely tuned separation of powers design is eviscerated. This Court should grant review in this case to put an end to deference doctrines that allow the Executive to usurp both Congressional and Judicial power and to rule that Congress cannot delegate its power of the purse to an executive agency. 

Buckeye Institute and National Federation of Independent Businesses 

Given the lack of statutory support, the D.C. Circuit should not have applied Chevron deference. Had the D.C. Circuit applied the correct analysis, the NMFS would have lost, and the follow-on consequences of the agency action would have been averted . . . . This case presents the Court with an opportunity to rein in a rogue agency that has been abetted by a court that rushed to find a statutory ambiguity. 

Independent Women’s Law Center 

Judicial deference to the executive is particularly problematic in cases such as this one, where an agency has used its alleged authority to create an independent source of funding for its regulatory mission. Such self-financing cannot be squared with the Constitution’s Appropriations Clause, which limits agency spending to that which Congress has authorized. And it can have devastating consequences for the small businesses that are forced to shoulder the costs of a larger regulatory agenda. 

Right to Work Legal Defense Foundation, Inc. 

But there is no reason Chevron should continue to govern lower courts while this Court shuns it. The Court should grant the petition, reconsider Chevron, and reverse the decision below. 

. . .  

Chevron is the inevitable consequence of abandoning Article I’s text. This Court created Chevron deference based on a legal fiction, assuming Congress implicitly delegates legislative power through ambiguous or nonexistent statutory language so that an administrative agency can make legislative rules.9 The effect is that a law’s meaning is never fixed but becomes a malleable standard that the executive branch can change on a dime. 

Southeastern Legal Foundation 

This case also asks the Court to reconsider Chevron. Amicus agrees that it should. Chevron requires courts to uphold an agency’s interpretation of a statute—even if not the best interpretation—so long as that interpretation is reasonable. This approach forces courts to defer to agencies on questions of law, thus requiring the judiciary to shirk its duty to say what the law is. Time and again, Chevron forces judges to uphold interpretations that they believe are wrong. 

Christian Employers Alliance 

Many of this Court’s highest-profile disputes have stemmed from administrative agencies advancing their own agendas without apparent statutory authority or concern for its absence. When left to their own devices—or to the political calculations of the White House—agencies stretch and strain their authority to impose on the everyday lives of American citizens in ways Congress never prescribed.  … 

Chevron deference is a bad idea for many reasons. But it is especially dangerous to fundamental freedoms. The idea that bureaucrats know better than judges how to interpret the law cedes to agencies the authority this Court has reserved to Congress: the ability to resolve the most highly contentious social and cultural “decisions of vast economic and political significance.” 

Relentless Inc., Huntress Inc., Seafreeze Fleet LLC 

The small family-run businesses that make up so much of our fishing fleets, particularly in the New England and Mid-Atlantic fisheries, operate on narrow financial margins. This is unlike, for example, the energy, technology, or defense industries that are often able to engage in the expensive litigation that has a better chance to reach this Court. Indeed, the Court has not interpreted the MSA, particularly with its more searching attention to Chevron deference, in almost two generations. Some members of this Court were not in law school yet when the Court last interpreted the MSA. As Petitioners note, not only does the petition present the question of the continuing vitality of Chevron, but it also presents the question of whether America’s fishers will be subject to the unchecked discretion of bureaucrats whenever Congress is silent. 

Advancing American Freedom, Pelican Institute, America First Legal Foundation 

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. Chevron deference has long been persuasively criticized as unconstitutional, both for violating Article III’s vesting of all judicial powers in the judiciary and for violating due process. 

. . .  

Whatever hopeful benefits might have been countenanced when Chevron was decided in 1984, nearly four decades of experience and navel gazing have done little to bind agencies to the Constitutional mast. Chevron “wrests from Courts the ultimate interpretative authority to ‘say what the law is’” and places it in the executive’s hands.