Photo: John J. Vecchione, NCLA Senior Litigation Counsel, Meghan Lapp, Fisheries Liaison & General Manager, Seafreeze, Ltd.,
Mark Chenoweth, President and Chief Legal Officer, and Roman Martinez, Latham & Watkins Partner,
give their comments at the Supreme Court’s steps after the oral argument in Relentless.
I’d like to talk about just one distinctive aspect of the body of law that has followed in the wake of the Supreme Court’s decision in Chevron—that it has spawned a boatload of complex and comically inscrutable doctrines. Here’s counsel for the boat Relentless at argument:
“You … need a secret decoder ring to figure out what the law means under this Court’s approach. You have to do step zero. You have to apply Mead. Then you have to do a robust step one inquiry taking into account Footnote 9 and taking into account, you know, how much ambiguity is needed. In this — in the D.C. Circuit, you have to do step one and a half, where you have to figure out whether the agency recognized that the statute was ambiguous. Under Kisor, there’s maybe a step three that says you turn off deference when the agency’s operating outside of its area of expertise. And then overlying all that you’ve got the Major Questions Doctrine.”
Whew! With apologies to Ira Gershwin, these are “more clouds of gray/than any Russian play/could guarantee.” SpongeBob would call this “nautical nonsense.” And the quoted litany of doctrine-gone-haywire does not even take into account Skidmore “respect,” Kisorizing, and other obscurantist fun and games that have evolved in the wake of Chevron, an exception-laden, step-ridden, multi-part doctrine that impoverishes both struggling fisherman and the rule of law.
What is this case about? It asks whether a mere agency, the National Oceanic and Atmospheric Administration (NOAA) can interpret a statute that has been on the books for decades to authorize a new rule requiring the boats to pay up to 20% of their profits per trip to federal agents to cover the $700 per day costs of the government monitors they are required to carry on their fishing trips. Congress itself has refused to fund the monitoring observers the agency wanted, so the agency has passed a final rule doing that for itself. This arrogation of government power without Congressional authorization is so obviously atextual, unlawful, unjust, and burdensome to these struggling fishermen that it provided the compelling theme of economic distress in CODA, 2001’s Oscar-winning Best Picture of the year. It has taken the Supreme Court a few years to catch on to a lawless flex of federal power that even Hollywood grasps.
The Expertise Emperor Has No Clothes
The justices in favor of an agency self-financing its regulation on the backs of fishermen argued, among other things, that such a decision falls within the agency’s interpretive powers and expertise. But this is baldfaced nonsense! Agencies have no “expertise” in deciding whether their regulatory power should be funded outside the agency. Congress, and Congress alone, possesses the power of the purse and that means deciding when and how government power imposes costs on the American people or regulated industries and whether agencies can resort to non-appropriations funding of their operations. That question requires no expertise. It requires a law.
This scheme of self-appropriating funding for NOAA’s operations not only imposes enormous costs on these small fishing enterprises, it is a brazen end-run around the requirement that under the Constitution and laws of the United States, including the Anti Deficiency Act and the Miscellaneous Receipts Act, the legislature alone can raise, receive or spend money. Alexander Hamilton explained that in a constitutional order that assigns the lawmaking and appropriations powers to the legislature, ‘no money can be expended, but for an object, to an extent, and out of a fund, which the laws have prescribed.” (Emphases in original). Alexander Hamilton, Explanation, in The Works of Alexander Hamilton, Vol. 8, p.128 (Henry Cabot Lodge ed., 2d ed. 1903).
This prompts me to ask, if this question is that simple, why all of this complex doctrinal noise around Chevron? P.J. O’Rourke (God rest his immortal soul) once quipped that “There’s a simple rule here, a rule of legislation, a rule of business, a rule of life: beyond a certain point, complexity is fraud.” Like so many quips, it is funny because it is true.
This thought about how complexity informs the law and exposes its infirmities is not new. One of the most astute observations about law that I have come across arose in the context of the English common law in the 19th century. England had a common-law rule that, like Chevron, was thoroughly erroneous at its core. In that instance, the flawed premise was that a crime could be prosecuted only in a venue in which all of the acts necessary to establish the offense had occurred. Such a search for the one perfect locus was obviously chimerical given the long legs of criminal enterprise, and so the flawed common-law rule forced Parliament to enact dozens of statutes explicitly providing for multiple permissible venues. The prominent English criminal-law scholar James Stephen astutely noted that “the only general interest attaching to these exceptions is that they prove that the general principle which requires so many exceptions must be wrong.” 1 J. Stephen, A History of the Criminal Law of England 277 (1883).
Like the English common law venue rule, Chevron is fundamentally flawed. Article III empowers the judicial branch alone to say what the law is using their best and independent judgment. Chevron reassigns interpretive authority from courts to agencies, even forcing courts to adopt inferior agency decisions issued for political, policy or in this case, self-interested reasons. Chevron mandates judicial bias favoring one litigant—the most powerful—over the other and further incentivizes agency abuse of power—such as self-appropriation of government funds through the sheer flex of administrative power over fishermen. By removing the structural judicial check on executive power, Chevron threatens individual liberty and livelihoods.
The owners and crew of the two courageous named fishing boats that have challenged the NOAA rule, Relentless and Loper Bright, have been adrift and left vulnerable to unlawful exaction for far too long in this sea of abstruse and incomprehensible doctrine. Sail on, Relentless and Loper Bright! May you soon send Chevron to Davy Jones’ locker.