‘Safeguard Against Tyranny’: House Weighs In On SCOTUS Case Testing Bounds Of Executive Agency Authority

Congress’ silence on an issue does not mean it delegated its authority to executive agencies, the U.S. House of Representatives told the Supreme Court in a bipartisan brief Monday.

The House’s Bipartisan Legal Advisory Group (BLAG) filed a brief with the Supreme Court supporting family-owned New Jersey fishing companies in their lawsuit against the National Marine Fisheries Service (NMFS), warning the justices that affirming a lower court’s decision against the fishermen would “undermine the system of checks and balances that is a critically important safeguard against tyranny.” The fishermen are asking the Supreme Court to decide whether the NMFS can require fishing vessels to pay the salaries of federal observers—costing 20% of company revenues—based on the NMFS’ interpretation of the statute empowering it to mandate vessels to carry federal observers, according to the petition.

Their case, Loper Bright Enterprises v. Raimondo, presents a major challenge to Chevron deference, a legal doctrine rooted in a 1984 Supreme Court decision that holds that courts should defer to agency interpretations of statutes when the language is ambiguous.

“Permitting agencies to find new authority lurking behind any statutory silence would also incentivize agencies to aggrandize their own authority at the expense of Congress’s Article I powers,” the House brief states. “Self-interested agencies will leverage statutory silence to expand their regulatory footprint. Worse yet, agencies may use silence to effectively augment their appropriations, as the [NMFS] did here, usurping Congress’s power of the purse.”

Republican Texas Sen. Ted Cruz and Republican Louisiana Rep. Mike Johnson, along with 34 other members of Congress, also filed an amicus brief Monday backing the fishermen, urging the Supreme Court to “unequivocally abandon the contemporary Chevron deference doctrine.”

The House recently passed the Separation of Powers Restoration Act of 2023, which would require courts to decide cases without reference to Chevron deference.

“Government works best when it can be held accountable,” Republican Wisconsin Rep. Scott Fitzgerald, who introduced the bill, said in a statement after it passed the House in June. “Unfortunately, unelected bureaucrats in our agencies wield far more power than intended because of mandated deference, like Chevron, during judicial review. This legislation restores Congress’s authority as the branch that makes the laws and the judiciary as the branch to interpret and enforce them.”

President Joe Biden has promised to veto the bill if it passes the Senate.