In Chevron v. Natural Resources Defense Council I discussed a little about Chevron deference. This is the case law that allows the federal government to say “We are the experts, our interpretation of the law is always correct.”
I am not qualified to know whether the original decision was a good decision or not, I believe it was not. Regardless, it has been abused for decades at this point.
Today, the Supreme Court granted certiorari in Loper Bright Enterprises, Inc v. Gina Raimondo, 21-5166 (D.C. Cir. 2022). This case has nothing to do with the Second Amendment directly, but it holds a great deal of potential for reigning in the ATF and other federal agencies.
The gist of the case is that congress passed the Magnuson-Stevens Act (MSA) in 1976. The MSA extended the regulatory reach of the “National Marine Fisheries Service”. It was passed to
to conserve and manage the fishery resources…of the United States — 16 U.S.C. § 1801 (b)(1).
This is the law that is designed to stop overfishing of territorial waters of the US.
In September 2018, the NMFS submitted the Omnibus Amendment to the Service. This opened a commenting period. The commenting period ended and the Omnibus Amendment to the Service was approved. The Final Rule was published in February 2020.
Sort of like the ATF did bump stocks and pistol braces. They publish the proposed rule. Open for comments, then do whatever they wanted to do in the first place.
At issue in the Omnibus Amendment is that the NMFS decided that they were going to make the fishing boats pay to have an inspector on board and to force the fishing boats to accept an inspector. Space is at a premium aboard ships, so having a deadhead onboard worsens it for everyone. In addition, the government man isn’t actually doing any work. All he does is run his clipboard looking for ways to ding the boat.
This inspector is paid a percentage of the value of the catch.
In other words, the government gets to force a fishing boat to take an inspector onboard and the fishing boat has the pleasure of paying that inspector to eat their food, take up space, and in general to be a government busybody.
- Whether, under a proper application of Chevron, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry.
- Whether the Court should 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.
— Loper Bright Enterprises, Inc v. Raimondo 45 F.4th 359 (D.C. Cir. 2022)
The first question is strictly limited to this particular case. If the Supreme Court heard the case on only question 1 then the decision would not be helpful to the country as a whole.
The Politics of the Court
The Supreme Court normally does not grant certiorari to cases where finally outcome will not be useful. This case is even a bit more convoluted because Justice Jackson was on the D.C. Circuit court when the case was originally at the Circuit court. She was on the panel that was going to decide this case.
When she was nominated and confirmed to the Supreme Court, her seat on the case was filled by another judge. In the question of granting certiorari, Jackson took no part. This means that when this case is argued and decided, she will recuse herself.
She can’t recuse herself from the discussion on certiorari and then “rehabilitate” herself in time for the case to be heard. It doesn’t work that way.
This means that there are only 8 Justices that will be deciding. This could lead to a tie. The Supreme Court does not like ties and avoids them like the plague. Given that there could be a tie, there is a strong indication that the Justice already have a good idea where they are going.
Tn granting cert. The court said they were only going to address question 2. Again, this is great news! They are going for the whole apple.
A number of Supreme Court observers have noted that it looked like the Supreme Court was looking for a chance to readdress Chevron
This case won’t be heard anytime soon. It is likely that some of the cases coming up through the inferior courts will be held pending the outcome of this case. Any case where the state and inferior court relied on Chevron would likely be held.
The inferior courts, mostly the circuit courts, will hear motions to hold cases pending the outcome of this case. Much like, a number of cases were just held at the circuit court while everybody was waiting for the Bruen opinion.
My question is: Which way will the court(s) go regarding pending litigation on things like the bump stock ban, frame and receiver, and pistol brace Final Rules?
Do they issue an injunction stopping the state from enforcing these final rules, or do they leave them in place?
We are looking at 12 to 14 months before we know the outcome of this case.
We live in interesting times.
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