Imagine you live somewhere in small-town America where residents routinely exceed the posted speed limits. To address this problem, the town council votes to require a police officer to ride along with each member of the community every time they venture out in an automobile.
The purpose of the new program is to make sure the speed limits are obeyed. Anyone caught speeding is fined to pay for the program. It sounds like a win-win for everyone, but there’s a problem: The people who designed the program underestimated how much it would cost — there being a fair number of people in the town who go places by car — but overestimated the amount of money it would bring in from fines assessed on people caught driving above the posted limits.
Rather than abolish the program, which would seem to most people to be the sensible thing to do, the chief of police announced his officers would now be paid directly by the drivers in whose cars they ride.
You might think something like that could never happen. Yet that is precisely the position into which the Department of Commerce has placed the nation’s deep-sea fishermen. For more than 30 years, the Magnuson-Stevens Act has authorized the Commerce Department’s National Oceanic and Atmospheric Administration to require commercial fishing boats to carry observers with them to monitor their adherence to federal fishing regulations.
When NOAA ran out of the money it needed to keep this program going to the extent it deemed necessary in the U.S. Atlantic Coast herring fisheries, the agency decided without congressional authorization to shift the responsibility of paying for these third-party observers to the fishermen themselves.
That’s right. The people who own the boats that ply their trade in the Atlantic herring fisheries were forced to pay an estimated $700 per day for the privilege of being policed, whether they caught any fish while at sea or not. This isn’t like hiring a security guard; the observer’s job is to make sure that rules and regulations are followed and to ensure any that violate them are fined and put on report.
Whether NOAA had the right to do this is now in the courts. In Loper Bright Enterprises v. Raimondo, a group of fishermen argued that the agency engaged in an “outrageous abuse” of federal power by requiring them to pay for the observers. If the Supreme Court agrees, and it should, it will send a message to the regulatory state that the days of judicial deference to agency interpretations of statutes they oversee ushered in by the 1984 Chevron decision are over.
In Chevron, the court established a two-part test to be used by the courts to determine whether a federal agency had exceeded its authority. In the ensuing 35 years, that test has been abused by agencies to expand their power regardless of congressional intent. More recently, as it did earlier this year in West Virginia v. EPA, the court seems willing to rein in any activities that occur absent specific congressional instruction or expressed intent.
The latter was an important change in the law that limited the power of unelected, unaccountable bureaucrats who think that just because Congress has not prohibited them from imposing regulations and penalties, they are free to act as they please. Likewise, the attorneys arguing Loper Bright say that because the Magnuson-Stevens Act does not give NOAA the authority to force the fishermen to pay for the privilege of being monitored, the agency erred in requiring them to pay for the monitors.
A finding in the plaintiff’s favor that narrows Chevron’s scope or overturns it altogether would be a major victory in the battle against the excesses of the administrative state. Congress, meanwhile, should undertake a review and find out how many other federal programs require people and businesses to pay for the privilege of being under surveillance. Those should be abolished too.