CHARLESTON — West Virginia Attorney General Patrick Morrisey is leading a coalition of 27 states in a brief asking the U.S. Supreme Court to overrule – or at least clarify — the doctrine known as Chevron deference.
In December, Morrisey led a coalition of 18 states supporting the challengers’ request for asking the Supreme Court to review the case, which the court granted.
The case – Loper Bright Enterprises v. Gina Raimondo, Secretary of Commerce – focuses on a regulation by the National Marine Fisheries Service that requires herring fishing boats to have an additional person on board to serve as a monitor, tracking compliance with federal regulation. The issue is that the fishing companies must pay the monitor’s salary, which costs about $700 a day.
Morrisey
“We’re happy that the court has decided to revisit the Chevron doctrine, a misguided doctrine under which courts defer to legally dubious interpretations of statutes put out by federal administrative agencies,” Morrisey said. “Congress’s 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.
“For too long, though, the Chevron doctrine has empowered agencies to do just that. This needs to stop. When people think about the major problems of the administrative state, Chevron deference should be at or near the top of the list.”
In the Loper case, the fisheries took the government to court. Applying Chevron deference, the lower courts said the Magnuson-Stevens Act allowed the imposition, even though the statute did not expressly authorize it. The fisheries then asked the Supreme Court to take the case — either to “overrule Chevron, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”
Chevron deference allows courts to defer to a federal agency’s interpretation of an ambiguous statute — even if the court thinks that the agency’s approach is not the most faithful way to read the statute. And, because agencies only have the powers that Congress gives them by statute, the doctrine effectively allows agencies to expand their authority whenever statutes are even a little unclear.
The name comes from a landmark 1984 case Chevron U.S.A. v. Natural Resources Defense Council. In that case, the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable so long as Congress had not spoken directly to the precise issue at question.
According to the coalition brief, the Chevron doctrine has been abused and manipulated to allow federal agencies to run amok.
It says, by stacking the deck in the agencies’ favor, the states lose “not only our authority to regulate in ways that matter most, but also our right to have the people we send to Congress make those calls if the federal government tries to take on these issues instead."
“Congress should pass laws, judges should construe them, and unelected bureaucrats should stick to their job of just implementing those laws — not rewriting them,” Morrisey said. “The Court should overturn Chevron and return power where it belongs: with the people.”
Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming joined West Virginia in the brief.
