The case focused on a regulation under the Magnuson-Stevens Act that lets the National Marine Fisheries Service (NMFS) require fishing vessels to carry federal observers on board to enforce the agency’s fishing regulations. Image: Artis Veigurs/Shutterstock.com
By: FEDweek StaffFollowing is a letter from House Oversight and Accountability chairman Rep. James Comer, R-Ky., to acting OPM director Rob Shriver on the implications to that agency of the U.S. Supreme Court’s recent decision lowering the standard of deference that federal courts apply to agencies’ interpretations of laws affecting them. The letter is part of a series of similar letters being sent to all agencies by House Republicans in the wake of that decision.
Dear Acting Director Shriver:
I write to call to your attention Loper Bright Enterprises v. Raimondo, a recent Supreme Court decision that precludes courts from deferring to agency interpretations of the statutes they administer. 1 In its decision, the Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which had allowed courts to defer to agency interpretations of ambiguous statutes. By allowing such deference, the Court in Chevron upset the founders’ careful separation of powers, permitting courts to abdicate the judicial role granted exclusively to them through Article III of the Constitution and enabling the Executive to usurp the legislative authority granted exclusively to Congress through Article I. Unsurprisingly, Chevron unleashed decades of successively broader, more costly and more invasive assertions of agency power over citizens’ lives, liberty and property, as agencies adopted expansive interpretations of assertedly ambiguous statutes, demanding courts defer to them.
Perhaps no administration has gone as far as President Biden’s to found sweeping and intrusive agency dictates on such questionable assertions of agency authority. The Biden Administration has promulgated far more major rules, imposing far more costs and paperwork burdens, than either of its recent predecessor administrations.2 Many of these rules—such as those promulgated to impose President Biden’s climate, energy and Environment, Social and Governance (ESG) agendas—have been based on aggressive interpretations of statutes enacted by Congress years and even decades ago, before many issues against which the Biden administration has sought to deploy them were even imagined.
The expansive administrative state Chevron deference encouraged has undermined our system of government, overburdening our citizenry and threatening to overwhelm the founders’ system of checks and balances. Thankfully, the Court in Loper Bright has now corrected its Chevron error, reaffirming that “‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’” 603 U.S. at ___ (slip op. at 7-8) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This long-needed reversal should stem the vast tide of federal agencies’ overreach. Given the Biden administration’s track record, however, I am compelled to underscore the implications of Loper Bright and remind you of the limitations it has set on your authority.
As the committee of jurisdiction overseeing your agency, I assure you we will exercise our robust investigative and legislative powers not only to reassert forcefully our Article I responsibilities, but to ensure the Biden administration respects the limits placed on its authority by the Court’s Loper Bright decision.
1. Please provide the following concerning your agency’s legislative rules proposed or promulgated since January 20, 2021, identifying in each relevant listing the rule or rule-making and agency statutory interpretation concerned:
a. A list of all pending judicial challenges to final agency rules that may be impacted by the Court’s Loper Bright decision.
b. A list of all final agency rules not yet challenged in court that may be impacted by the Court’s Loper Bright decision if they are so challenged.
c. A list of all pending agency rulemakings in which the agency is relying on an agency interpretation of statutory authority that might have been eligible for Chevron deference prior to the Court’s decision in Loper Bright.
2. Please provide the following concerning your agency’s adjudications initiated or completed since January 20, 2021, identifying in each relevant listing the adjudication and agency statutory interpretation concerned:
a. A list of all pending judicial challenges to final agency adjudications that may be impacted by the Court’s Loper Bright decision.
b. A list of all final agency adjudications not yet challenged in court that may be impacted by the Court’s Loper Bright decision if they are so challenged.
c. A list of all pending agency adjudications in which the agency is relying on an agency interpretation of statutory authority that might have been eligible for Chevron deference prior to the Court’s decision in Loper Bright.
3. Please provide the following concerning enforcement actions brought by your agency in court since January 20, 2021, identifying in each relevant listing the agency statutory interpretation sought to be enforced:
a. A list of all pending enforcement actions in which the agency is relying on an agency interpretation of statutory authority that might have been eligible for Chevron deference prior to the Court’s decision in Loper Bright.
b. A list of all concluded enforcement actions in which the court deferred under Chevron to an agency interpretation of statutory authority as a basis for its judgment against a non-agency party.
4. Please provide the following concerning your agency’s interpretive rules proposed or issued since January 20, 2021, identifying in each relevant listing the statutory authority the rule interprets and the agency statutory interpretation set forth in the rule:
a. A list of all proposed or final agency guidance documents or other documents or statements of the agency containing interpretive rules likely to lead to— i. an annual effect on the economy of $100,000,000 or more; ii. a major increase in costs or prices for consumers, individual industries, Federal, State, local, or Tribal government agencies, or geographic regions; or iii. significant adverse effects on competition, employment, investment, productivity, innovation, public health and safety, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
b. A list of all proposed or final agency guidance documents or other documents or statements of the agency containing interpretive rules related to— i. novel legal or policy issues arising out of legal mandates or the President’s priorities; or ii. other significant regulatory issues not already identified in response to Request 4(a) above.
5. Please provide the following concerning judicial decisions in cases to which your agency has been a party since the Supreme Court issued its Chevron decision in 1984, identifying in each relevant listing the statutory authority the agency interpreted and the agency statutory interpretation upheld:
a. A list of all judicial decisions not ultimately overturned by a higher court in which the court deferred under Chevron to the agency’s interpretation of a statute.
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