Posted originally on Mar 22, 2024 By Martin Armstrong 

There is a major case before the Supreme Court that has broad implications for EVERYONE’s civil rights. An agency arbitrarily demanded that fishermen pay for the agency’s decision to regulate them, which was not in the statute, is the facts before the court. In short, the fishermen are objecting to a regulation that requires them to pay observers to ensure their vessels comply with federal regulations while at sea. In other words, you have to pay for a government agent to follow you while working every day.

Cape May, New Jersey-based commercial fishing operations, run by Bill Bright, Wayne Reichle, and Stefan Axelsson, filed a suit, Loper Bright Enterprises v. Raimondo, which is backed became the lightning rod to overturn – Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Can you imagine if you had to pay the salary of a government observer to ride with you in your car to ensure you do not speed just to drive your car?

Following the oral argument in a closely watched administrative law case that could have a major impact on limiting the government’s arbitrary actions, it appeared that some U.S. Supreme Court justices would be open to limiting the opportunities for lower courts to defer to federal agencies’ legal interpretations in disputes over rulemaking known as the Chevron case.

Questions posed by U.S. Supreme Court justices during oral arguments suggested that a compromise on Chevron’s deference may be in the works.

Fishing groups asked the Supreme Court to overturn its 1984 ruling in Chevron, which established that federal judges must defer to agencies’ reasonable interpretations of ambiguous laws in litigation over rulemaking. While some justices seemed receptive to such a move, others asked questions that indicated some reservations.

Completely overturning Chevron would eliminate a legal dictatorship for agencies. However, curtailing its conditions of use could accomplish many of the same aims without a high-profile rebuke of a 40-year-old precedent.

Justices Amy Coney Barrett and Elena Kagan appeared to be concerned about the effects of overturning Chevron. During oral arguments, they began exploring how the court might impose new guardrails around the use of the long-standing legal doctrine. Chief Justice John Roberts asked a few questions along the same lines, indicating he was perhaps hesitant about totally scrapping Chevron.

Justices Sonia Sotomayor and Ketanji Brown Jackson supported maintaining the Chevron deference as it is since they are Democrats and love big government. Still, with Justices Barrett and Roberts potentially closer to the limiting rather than overturning option and Justice Kagan exploring the middle ground, it looked like a compromise was in the air.

Justice Barrett gave a clue to a path forward when she coined the term “Kisorize” during her questioning of Solicitor General Elizabeth Prelogar. This demonstrated her curiosity about whether the high court could restrict the use of the Chevron doctrine similarly to the way it curtailed the use of the Auer deference to agency interpretations of ambiguous regulations in 2019’s Kisor v. Wilkie. Kisor argued that Auer deference forced judges to blindly give weight to agencies’ interpretations of their regulations—regardless of how the judges would otherwise interpret the regulations in their own independent judgment. This deference doctrine, to me, is a violation of the Separation of Powers because an agency will ALWAYS interpret its regulation to its own self-interest. This deference has been rooted in a presumption that Congress intended for courts to defer to agencies when interpreting their own ambiguous rules. The Court adopted that presumption, which has created an arbitrary and unconstitutional practice of authoritarianism, denied judicial review.

We are talking about the very foundation of our nation. The Constitution is NEGATIVE and was intended to be a restraint upon government – not a means to expand powers. Sotomayor and Jackson need to move to the center and just for once realize the very foundation of our Constitution was to RESTRAINT government to preserve our liberty.

Since there did not appear to be a 5:4 vote for overruling Chevron, that leaves restricting its application, if a judge is to defer to an agency’s legal interpretation under Chevron, the agency must clear a two-step process. At step one, the judge must determine if the statute the agency relies on as authority for its rule is ambiguous. Then, in step two, the judge must determine if the agency’s interpretation of that ambiguity is reasonable. This is where our rights will still slip through the cracks.

The Court could instruct judges not to be too quick to find ambiguity and to better define reasonableness. This is still a gray area. Step two would instruct judges to make sure an agency is acting with the force of law and to look for other statutory indications that Chevron may not apply in that case. This fine-tuning would avoid the formal overruling of a prior precedent that would do what is right but unlikely since agencies will cry over a loss of arbitrary power. It should be where the “best” interpretation of a law wins in court, even if there is this claim that their interpretation is “reasonable.” That would be the correct decision, but there goes the agency’s absolute power. What they do now is infer that statutory silence concerning their controversial powers constitutes ambiguity requiring deference to the agency. That is an outrageous abuse of power.

I seriously doubt that the Supreme Court should overrule Chevron outright. Once you hand any power to those in government, it becomes like Communism. You can vote your way in, but you have to shoot your way out. They just can’t bring themselves to ever hand power back to the people, regardless of what the Constitution had to say about it. They have turned the Bill of Rights, which is a NEGATIVE restraint upon government, into a positive right you have, and then they claim you can waive that right, thereby constructively amending the Constitution so it no longer exists as applied to you.