Attorney General Paxton has joined a West Virginia-led cert-stage amicus brief requesting that the U.S. Supreme Court hear Loper Bright Enterprises, Inc., et al. v. Gina Raimondo, Secretary of Commerce, et al., to limit the power of federal administrative entities.
First, the case is a prime example of an unrestrained government agency that ought to have its authority checked by the Court. At issue is the National Marine Fisheries Service’s requiring commercial fishermen to allow “observers” on their boats, at a cost to be paid for by the fishermen themselves.
Second, the United States Court of Appeals for the D.C. Circuit recently ruled that the agency’s decision to essentially give itself the power of taxation is lawful under the Chevron deference doctrine, which says that when a statute is silent the courts should defer to an agency’s interpretation of its authority and allow its regulation to stand. Here, the circuit court misapplied the doctrine.
The brief urges the U.S. Supreme Court to use the case as an opportunity to limit government overreach in not just one narrow circumstance, but also in future situations where courts have historically deferred to overzealous agencies using Chevron as the justification.
“Deferring to an agency’s purported power to self-fund lets the fox both build the henhouse and buy the hens,” the brief states. “Here, it was bad enough that the majority allowed the agency to fund its own enforcement efforts without any ‘straightforward and explicit command’ from Congress. Worse still, it signed off even though the agency is not self-appropriating public dollars, but requiring private parties to foot the bill. The majority should have been especially cautious before deferring to an agency’s assertion of quasi-taxation power—particularly when, again, the most it had in support was statutory silence.”
To read the full amicus brief, click here.