Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

Supreme Court briefDec 15, 2022

Ask Donna

What actually matters in this document.

Text

No. 22-451

In the Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, ET AL., Petitioners,

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR INDEPENDENT WOMEN’S

LAW CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

JENNIFER C. BRACERAS

INDEPENDENT WOMEN’S

LAW CENTER

1802 Vernon Street NW

Suite 1027

Washington, DC 20009

(202) 807-9986

KATHRYN E. TARBERT

Counsel of Record

GENE C. SCHAERR

ANNIKA BOONE BARKDULL*

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

ktarbert@schaerr-jaffe.com

Counsel for Amicus Curiae

DECEMBER 15, 2022

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ................................................... 1

REASONS FOR GRANTING THE PETITION.......... 3

II.

The Lower Court’s Reliance on Chevron

Violates the Separation of Powers. ................ 3

The Constitution Carefully Divides

Powers Among the Branches. ................. 4

Agencies

Have

Routinely

Encroached on the Legislative and

Judicial Powers Under Chevron. ............ 5

Allowing Agencies to Self-Fund Without

Congressional Authorization Is an

Especially Egregious Violation of the

Separation of Powers. ................................... 10

The Constitution Expressly Limits

the Power of the Purse. ......................... 11

Agencies are Increasingly Turning

to Self-Funding to Finance Their

Regulatory Agendas. ............................. 13

III. Increased Regulatory

Costs Are

Devastating for Small Businesses. .............. 17

CONCLUSION .......................................................... 20

TABLE OF AUTHORITIES

Cases

Page(s)

Alabama Ass’n of Realtors v.

Department of Health & Hum. Servs.,

141 S. Ct. 2485 (2021) .............................................. 8

American Hosp. Ass’n v. Becerra,

142 S. Ct. 2354 (2022) ............................................ 10

Baldwin v. United States,

140 S. Ct. 690 (2020) ............................................ 1, 7

Becerra v. Empire Health Found.,

142 S. Ct. 2354 (2022) ............................................ 10

Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ................. 1, 6, 10

City of Arlington v. FCC,

569 U.S. 290 (2013) .............................................. 5, 6

Consumer Fin. Prot. Bureau v.

All Am. Check Cashing, Inc.,

33 F.4th 218 (5th Cir. 2022) ............................ 12, 13

Federal Election Comm’n v. Cruz,

142 S. Ct. 1638 (2022) .............................................. 6

Franciscan All., Inc. v. Becerra,

47 F.4th 368 (5th Cir. 2022) .................................... 9

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ........................ 4, 6, 7

Marbury v. Madison, 1 Cranch 137 (1803) ................. 6

Michigan v. EPA, 576 U.S. 743 (2015) ....................... 6

Morrison v. Olson, 487 U.S. 654 (1988) ...................... 4

iii

Motor Coach Indus., Inc. v. Dole,

725 F.2d 958 (4th Cir. 1984) ............................ 16, 17

National Fed’n of Indep. Bus. v. Department of

Lab., Occupational Safety & Health Admin.,

142 S. Ct. 661 (2022) ................................................ 9

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) .................................................... 4

U.S. Dep’t of Navy v. Federal Lab. Rels. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) .............................. 11

West Virginia v. Environmental Protection

Agency, 142 S. Ct. 2587 (2022) ................................ 9

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................................ 20

Constitutional Provision

U.S. Const. art. I, § 9, cl. 7 ........................................ 11

Statutes

31 U.S.C. § 1341(a)(1)(A) ........................................... 12

31 U.S.C. § 3302(b) .................................................... 12

Continuing Appropriations, 1974, § 108,

87 Stat. 130 (1973) ................................................. 13

Treatises

3 Joseph Story, Commentaries on the

Constitution of the United States § 1342

(1833) ...................................................................... 11

The Federalist No. 47 (James Madison)

(Clinton Rossiter ed., 1961) ..................................... 4

The Federalist No. 51 (James Madison)

(Clinton Rossiter ed., 1961) ..................................... 4

Other Authorities

App. Vol. II, Loper Bright Enters., Inc. v.

Raimondo, No. 21-5166 (D.C. Cir. 2022) .............. 18

D. Andrew Austin, Cong. Rsch. Serv., R45463,

Economics of Federal User Fees (2019) ................ 15

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 Mich. L. Rev. 1 (2017) ....................................... 8

Christopher C. DeMuth & Michael S. Greve,

Agency Finance in the Age of Executive

Government, 24 Geo. Mason L. Rev. 555

(2017) .......................................................... 14, 15, 16

Steve Eder, When Picking Apples on a Farm

With 5,000 Rules, Watch Out for the

Ladders, N.Y. Times (Dec. 27, 2017) ..................... 19

Chris Edwards, Entrepreneurs and

Regulations: Removing State and Local

Barriers to New Businesses,

Cato Inst. (May 5, 2021) ........................................ 18

Bob Egelko, Court taking another look at

higher fishing fees for nonresidents,

sfgate.com (Feb. 26, 2016, 7:05 PM)...................... 17

Neil M. Gorsuch,

A Republic, If You Can Keep It (2019)..................... 9

Erin Hawley, Legal Policy Focus: The Future of

Administrative Law, Indep. Women’s Forum

(Apr. 22, 2020) .......................................................... 5

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) (reviewing Robert A. Katzman,

Judging Statutes (2014)) ......................................... 7

Written Testimony of Kevin Kosar,

Dir. Governance Project, R St. Inst.,

to H. Comm. Oversight & Gov’t Reform,

Subcomm. On Gov’t Ops. & Healthcare,

Benefits, & Admin. Rules, Restoring the

Power of the Purse: Legislative Options,

114th Cong., 2nd sess. (Dec. 1, 2016) .................... 15

James MacDonald et al., Econ. Rsch. Serv.,

U.S. Dep’t of Agric., Agric. Econ. Rep. No.

775, User-Fee Financing of USDA Meat

and Poultry Inspection (1999) ......................... 14, 15

Isabelle Ross, Togiak herring fishermen

can tap a huge quota in 2020, but some

are still staying home, KDLG

(Dec. 13, 2019, 11:33 AM) ...................................... 19

Cindy Ryoo, Baker Inst. Blog, Environmental

Regulation: Reducing the Burden on Small

Business and Entrepreneurs, Rice Univ.

Baker Inst. for Pub. Pol’y (Aug. 1, 2019) .............. 18

Renee Wolcott Shannon, The Fate of a Fishery:

Shad and River Herring at the Turn of the

21st Century, Coastwatch (Spring 2000) ........ 19, 20

Kate Stith, Congress’ Power of the Purse,

97 Yale L.J. 1343 (1988) ........................................ 12

Cass R. Sunstein, Constitutionalism after the

New Deal, 101 Harv. L. Rev. 421 (1987) ................. 7

Christopher J. Walker, Legislating in the

Shadows, 165 U. Pa. L. Rev. 1377 (2017) ............... 8

INTRODUCTION AND

INTEREST OF AMICUS CURIAE 1

The court of appeals in this case held that a federal agency may require local fisheries to pay the

wages of monitors that the agency requires them to

hire, despite an absence of statutory text authorizing

such charges. Although the statute governing the fisheries is at best silent on the matter—and, when read

as a whole, confirms that Congress did not intend Atlantic fisheries to be charged such fees—the court of

appeals deferred to the plan adopted by the National

Marine Fisheries Service (Service) under Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984).

That kind of unbridled deference to the executive

cannot be squared with the structural separation of

powers demanded by the United States Constitution.

See, e.g., Baldwin v. United States, 140 S. Ct. 690, 691

(2020) (THOMAS, J., dissenting from denial of certiorari) (“Chevron * * * gives federal agencies unconstitutional power.”). Judicial deference to the executive is

particularly problematic in cases such as this one,

where an agency has used its alleged authority to create an independent source of funding for its regulatory

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution toward the preparation or submission of this brief. Pursuant to Supreme Court Rule 37.2(a), counsel of record for all parties have

consented in writing to the filing of this brief; all parties were

notified by amicus curiae of its intent to file this brief more than

10 days prior to its due date.

mission. Such self-financing cannot be squared with

the Constitution’s Appropriations Clause, which limits

agency spending to that which Congress has authorized. And it can have devastating consequences for the

small businesses that are forced to shoulder the costs

of a larger regulatory agenda.

This threat to both the constitutionally demanded

separation of powers and small businesses across the

nation is of great concern to amicus Independent

Women’s Law Center (IWLC). IWLC is a project of Independent Women’s Forum (IWF), a nonprofit, nonpartisan 501(c)(3) organization founded by women to

foster education and debate about legal, social, and

economic policy issues. IWF promotes access to free

markets and the marketplace of ideas and supports

policies that expand liberty, encourage personal responsibility, and limit the reach of government. IWLC

supports this mission by advocating for equal opportunity, individual liberty, and respect for the American constitutional order.

IWLC agrees with Petitioners that (1) the court of

appeals erred in concluding that the Magnuson-Stevens Fishery Conservation and Management Act

(MSA) authorizes the Service to force fisheries to assume the expense of agency-required monitors; and (2)

this Court should grant the petition to either clarify

the proper application of Chevron or overrule it entirely. IWLC writes further to explain the constitutional and practical dangers of the majority’s decision

permitting agencies to shift their operational costs to

regulated entities. Those dangers provide ample additional reason for this Court to grant the petition for

certiorari, reverse the decision below, and return

agencies to their rightfully limited place in our constitutional scheme.

REASONS FOR GRANTING THE PETITION

In deferring to the Service’s decision to rewrite

the MSA, the court of appeals abdicated its duty to say

what the law is. Worse yet, the court did so in the context of an agency decision that requires those it regulates to fund its regulatory mission without one iota of

congressional authorization and outside the normal

constitutional appropriations process. The court below ignored this Court’s recent and repeated admonitions that every tool of statutory interpretation must

be employed before deferring to an administrative interpretation. This case is thus the latest in a long line

where the courts of appeals have reflexively deferred

to erroneous and aggressive agency interpretations of

the law. It should be the last.

The Service’s end-run around the limited authority it was given by Congress and creative funding of its

regulatory mission outside of the congressional appropriations process is not only unlawful but also devastating for Petitioners and other small businesses. This

Court should reverse the decision below and either

limit Chevron to its appropriate role or overrule it entirely.

The Lower Court’s Reliance on Chevron Violates the Separation of Powers.

At bottom, this case is fundamentally about the

proper separation of powers among the legislative, executive, and judicial branches of our federal government. The court of appeals’ reliance on Chevron violated that constitutionally required separation.

The Constitution Carefully

Powers Among the Branches.

Divides

“To the Framers, the separation of powers and

checks and balances were more than just theories.

They were practical and real protections for individual

liberty in the new Constitution.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 118 (2015) (THOMAS, J., concurring in the judgment) (citation omitted). Indeed, the

Founders were well aware that, without independent

judicial review, “executives throughout history” had

long “sought to exploit ambiguous laws as license for

their own prerogative.” Gutierrez-Brizuela v. Lynch,

834 F.3d 1142, 1152 (10th Cir. 2016) (GORSUCH, J.,

concurring).

By 1787, as a result of the failure of individual

state governments, there was widespread concern

about the concentration of power in any one branch of

government. James Madison captured that concern

when he famously warned that the “accumulation of

all powers, legislative, executive, and judiciary, in the

same hands, * * * may justly be pronounced the very

definition of tyranny.” The Federalist No. 47, at 301

(James Madison) (Clinton Rossiter ed., 1961). The

central innovation of the Constitution was, therefore,

the division of powers among three co-equal branches

of government. This structural separation of powers

was “essential to the preservation of liberty.” The Federalist No. 51, at 321 (James Madison) (Clinton Rossiter ed., 1961). As Justice Scalia explained, “[w]ithout a secure structure of separated powers, our Bill of

Rights would be worthless.” Morrison v. Olson, 487

U.S. 654, 697 (1988) (dissenting).

Agencies Have Routinely Encroached

on the Legislative and Judicial Powers

Under Chevron.

Unfortunately, the administrative state has

blurred—if not eviscerated—the separation of powers

that the Framers established for the purpose of protecting our liberty. The result is that, today, Americans are most often governed not by Congress but by

the “hundreds of federal agencies poking into every

nook and cranny of daily life.” City of Arlington v.

FCC, 569 U.S. 290, 314–315 (2013) (ROBERTS, C.J., dissenting) (citation omitted).

1. Indeed, rule by administrative agency is the

order of our day. 2 Each year, agency administrators

issue thousands upon thousands of regulations, while

Congress usually enacts fewer than two hundred statutes. 3 In short, as Chief Justice Roberts has explained, the administrative state “wields vast power

and touches almost every aspect of daily life.” City of

Arlington, 569 U.S. at 314–315 (dissenting) (citation

omitted).

As part of the executive branch, moreover, agencies have swallowed vast amounts of government

power. Far from merely enforcing the law, agencies

frequently write regulations with the force of law and

adjudicate disputes arising under those very regulations. As the Chief Justice put it, “It would be a bit

much to describe the result as ‘the very definition of

2 See Erin Hawley, Legal Policy Focus: The Future of Adminis-

trative Law 2, Indep. Women’s Forum (Apr. 22, 2020), https://tinyurl.com/mwrr733w.

3 See ibid.

tyranny,’ but the danger posed by the growing power

of the administrative state cannot be dismissed.” Id.

2. One of the few checks on agency authority is

the straightforward proposition that an agency “‘has

no power to act’ * * * unless and until Congress authorizes it to do so by statute.” Federal Election

Comm’n v. Cruz, 142 S. Ct. 1638, 1649 (2022) (citation

omitted). That check, however, has looked more like a

blank one ever since this Court’s decision in Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984).

Chevron is a powerful tool in an agency’s arsenal.

It requires federal courts to defer to an agency’s interpretation of an ambiguous statute, even when that interpretation is not the fairest reading of the statute or

the one that the Court would arrive at on its own interpretation. See id. Under Chevron, agencies have

the power not only to enforce the law but to make it.

3. Many members of this Court have noted the

separation of powers problem with such an approach.

Among other things, Chevron “wrests from Courts the

ultimate interpretative authority to ‘say what the law

is’ and hands it over to the Executive,” Michigan v.

EPA, 576 U.S. 743, 761 (2015) (THOMAS, J., concurring) (citing Marbury v. Madison, 1 Cranch 137, 177

(1803)), and permits executive agencies “to swallow

huge amounts of core judicial” power, Gutierrez-Brizuela, 834 F.3d at 1149 (GORSUCH, J., concurring).

“Such a transfer is in tension with Article III’s Vesting

Clause, which vests the judicial power exclusively in

Article III courts, not administrative agencies.” Michigan, 576 U.S. at 762 (THOMAS, J., concurring).

Chevron allows agencies to “chang[e] policy direction

depending on the agency’s mood at the moment.”

Gutierrez-Brizuela, 834 F.3d at 1158 (GORSUCH, J.,

concurring).

This “is not a harmless transfer of power.” Baldwin v. United States, 140 S. Ct. 690, 691–692 (2020)

(THOMAS, J., dissenting from denial of certiorari). Rather, Chevron “undermines” the ability of federal

courts to check unlawful executive action and allows

agencies themselves to determine the scope of their

own authority. Id.; see Cass R. Sunstein, Constitutionalism after the New Deal, 101 Harv. L. Rev. 421, 467

(1987) (“[F]oxes should not guard henhouses * * * .

Those limited by a provision should not determine the

nature of the limitation.”).

To the point, forty years under Chevron has

shown that ambiguity is almost entirely in the eye of

the beholder. Whether the language is clear or ambiguous “turns out to be an entirely personal question.”

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2142 (2016) (reviewing Robert

A. Katzman, Judging Statutes (2014)). Individual

“judges have wildly different conceptions of whether a

particular statute is clear or ambiguous,” and that

“threshold determination * * * may affect billions of

dollars, the individual rights of millions of citizens,

and the fate of clean air rules, securities regulations,

labor laws, or the like.” Id. at 2152–2153.

4. And indeed, agencies win most of the time. In

a study reviewing over 1,000 federal appellate decisions applying Chevron, the relevant statute was

found to be ambiguous a whopping 70% of the time.

Kent Barnett & Christopher J. Walker, Chevron in the

Circuit Courts, 116 Mich. L. Rev. 1, 32–34 (2017).

Upon a finding of ambiguity, the federal appellate

courts upheld the agency interpretation no less than

93.8% of the time. Id.

Given the reflexive deference often accorded under Chevron, “agencies have incentives” to urge Congress to “draft statutes flexibly, broadly, and ambiguously to trigger Chevron deference—and thus engage

in self-delegation of primary interpretive authority.”

Christopher J. Walker, Legislating in the Shadows,

165 U. Pa. L. Rev. 1377, 1419 (2017). They “have further incentives to be more aggressive in their agency

statutory interpretations when they believe Chevron

deference applies.” Id. The looming presence of Chevron deference incentivizes them to reject the fairest

reading of a statute—and Congress’s policy objectives—in favor of their own. See id.

5. There is no question that Chevron has emboldened agency decision-makers. Under the aegis of that

decision, federal agencies routinely promulgate jawdropping regulations. In just the last few years, this

Court has been required time and again to step in and

declare aggressive agency interpretations of the law

unlawful. The Centers for Disease Control, for example, recently issued a nationwide moratorium on evictions, even though that agency’s mandate has little to

nothing to do with housing, and even though Congress

had expressly rejected extending the moratorium. See

Alabama Ass’n of Realtors v. Department of Health &

Hum. Servs., 141 S. Ct. 2485, 2486 (2021) (per curiam)

(reversing stay of judgment holding moratorium unlawful).

Similarly, the Occupational Safety and

Health Administration, an agency supposedly limited

to regulating workplace safety, issued a nationwide

vaccine mandate on some eighty million workers—

something this Court found to be an extraordinary and

unlawful assertion of agency power. See National

Fed’n of Indep. Bus. v. Department of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 664–

665 (2022) (per curiam).

Or take the Clean Power Plan. Under that administrative action, the Environmental Protection

Agency took it upon itself to impose a nationwide cap

and trade program with the goal of changing the national energy grid—again, something Congress has

voted not to do. See West Virginia v. Environmental

Protection Agency, 142 S. Ct. 2587, 2614 (2022).

Most recently, the Department of Health and Human Services has aggressively interpreted Section

1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex, to require that every

American doctor be required to perform risky, permanent, and medically unnecessary sex-change operations on minors, even if the doctors believe the operation to be dangerous to the minor or if it violates their

conscience. See Franciscan All., Inc. v. Becerra, 47

F.4th 368, 376–380 (5th Cir. 2022). As Justice Gorsuch has cautioned, “when the separation of powers

goes ignored, those who suffer first may be the unpopular and least among us. But they are not likely to be

the last.” Neil M. Gorsuch, A Republic, If You Can

Keep It 46 (2019)). And that is one more reason such

policy decisions should be made by Congress—not by

insulated agencies acting on behalf of the executive

branch.

6. To address this serious problem, this Court has

recently suggested that the lower courts should take

seriously footnote nine of Chevron. That footnote

states that a court may not find a statute ambiguous

without “employing traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. In fact, recent opinions from this Court conspicuously fail to cite

to Chevron at all, instead rejecting the application of

that doctrine in favor of those “traditional tools of statutory interpretation.”

American Hosp. Ass’n v.

Becerra, 142 S. Ct. 2354, 2362 (2022). And the Court

has done so even in a case where the “ordinary meaning [of the statutory text] * * * d[id] not exactly leap off

the page.” Becerra v. Empire Health Found., 142 S.

Ct. 2354, 2362 (2022).

The lower courts, it seems, are not listening. They

continue, as in this case, to reflexively defer to impermissible agency interpretations that run riot through

separation of powers principles. The Court should

take this opportunity to declare—unambiguously—

that the days of blind deference to administrative

agencies are over.

II. Allowing Agencies to Self-Fund Without

Congressional Authorization Is an Especially Egregious Violation of the Separation

of Powers.

The decision below subverts the constitutional

separation of powers not only by abdicating the court’s

responsibility to interpret governing law, but also by

allowing an agency to impose the cost of regulation on

the regulated community. In this case, without express authorization from Congress, the Service

required small family-owned fishing businesses to pay

to be inspected by federally required monitors—costs

equal to an estimated twenty percent of annual revenue. Yet the Constitution is clear: only Congress has

the power to tax and spend, and the court of appeals

was wrong to hold that the Service itself could exercise

that power here.

A. The Constitution Expressly Limits the

Power of the Purse.

1. Article I of the Constitution of the United

States provides that “No Money shall be drawn from

the Treasury, but in Consequence of Appropriations

made by Law.” U.S. Const. art. I, § 9, cl. 7. The Appropriations Clause is “a bulwark of the Constitution’s

separation of powers among the three branches of the

National Government.” U.S. Dep’t of Navy v. Federal

Lab. Rels. Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012)

(Kavanaugh, J.). This “power over the purse” is “one

of the most important authorities allocated to Congress in” the Constitution. Id. at 1346–1347.

The constitutional limitation on appropriations

“is particularly important as a restraint on Executive

Branch officers: If not for the Appropriations Clause,

‘the executive would possess an unbounded power over

the public purse of the nation; and might apply all its

monied resources at his pleasure.’” Id. at 1347 (quoting 3 Joseph Story, Commentaries on the Constitution

of the United States § 1342, at 213–214 (1833)). In

fact, the Founders’ desire to “[r]estrain[] unruly executive power by giving the legislature control of the

purse strings has its pedigree in the English Revolution,” when Parliament took pains to eliminate the

Crown’s sources of ordinary revenue and ensure that

the monarch had to approach the House of Commons

each year to obtain funding. Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218,

225–226 (5th Cir. 2022) (Jones, J., concurring). As a

result, the Framers not only “vest[ed] Congress * * *

with the power to tax and spend, but also remove[d]

‘the option not to require legislative appropriations

prior to expenditure.’” Id. at 221 (Jones, J., concurring) (quoting Kate Stith, Congress’ Power of the

Purse, 97 Yale L.J. 1343, 1349 (1988)).

Congress, too, has safeguarded its power over the

purse by enacting statutes that limit executive spending. The Miscellaneous Receipts Act of 1849 requires

government officials who receive “money for the Government from any source” to deposit the money in the

Treasury. 31 U.S.C. § 3302(b). The Anti-Deficiency

Act of 1905 makes it unlawful for a federal agency to

“make or authorize an expenditure or obligation exceeding an amount available in an appropriation.” 31

U.S.C. § 1341(a)(1)(A). Both the Constitution and federal statutes are thus clear: to fund regulatory activities, the executive must come to Congress.

2. In addition, “[r]ecent history confirms that

Congress’s appropriations powers have proven a forcible lever of accountability” on the executive. All Am.

Check Cashing, 33 F.4th at 232 (Jones, J., concurring).

Congress has repeatedly used its power over the purse

to limit agency action of which it disapproved. As

Judge Walker noted in his dissent below, for example,

Congress at one point “used its funding power in its

effort to end commercial horse slaughter by defunding

the requisite ante-mortem inspections.” Pet. App. 32.

Likewise, in 2014, Congress reduced the budget of the

Internal Revenue Service by over $500 million after

“learn[ing] that the IRS [had] engaged in flagrant political targeting.” All Am. Check Cashing, 33 F.4th at

232 n.49 (Jones, J., concurring). Congressional decisions to reduce 60% of the Consumer Product Safety

Commission’s budget similarly limited the operations

of that agency over the years. Id. at 223. In the 1970s,

Congress “even [used its appropriations power] to end

armed combat.” Id. at 232 n.49 (citing Continuing Appropriations, 1974, § 108, 87 Stat. 130, 134 (1973)

(providing that no appropriated funds could be used

for “combat activities by United States military forces

in or over or from off the shores of North Vietnam,

South Vietnam, Laos or Cambodia”)).

Allowing an agency to obtain independent sources

of funding for its regulatory mission—or, as here, to

impose unilaterally those costs on the businesses it

regulates—allows it to bypass this important legislative check on the exercise of executive power. Congressional silence should not be understood to authorize

independent funding. To rule otherwise, as did the

majority below, is to permit the executive to regulate

much more than the legislature or Constitution has

authorized.

Agencies are Increasingly Turning to

Self-Funding to Finance Their Regulatory Agendas.

1. Despite the constitutional and statutory provisions that limit executive action to that which Congress has funded, administrative agencies have increasingly turned to independent sources of revenue to

finance their regulatory activities. 4 In other words,

Agencies are not simply collecting money to offset the

costs of services the federal government provides the

general public—for example, setting entrance fees for

national parks—but are charging regulated parties

fees that cover the agencies’ own overhead costs and

fund the performance of the agencies’ statutory mandates. 5

Agencies apparently view this self-funding as a

workaround for what they see as Congress’s “underfunding” of activities the agencies believe provide

“benefits [that] clearly exceed costs.” 6 In this case, for

example, the Service forced Petitioners to assume the

cost of federal monitors only after the agency faced

budgetary shortfalls in recent years. See Pet. 7.

As explained above, however, the Constitution

squarely places spending decisions in the hands of the

legislature. And Congress knows how to authorize

4 See James MacDonald et al., Econ. Rsch. Serv., U.S. Dep’t of

Agric., Agric. Econ. Rep. No. 775, User-Fee Financing of USDA

Meat and Poultry Inspection 6 (1999),

https://tinyurl.com/ywvye5x7 (“Many Federal agencies now rely on user

fees for at least some funding, and the importance of user fees as

a source of funding has grown sharply in recent years.”).

5 See Christopher C. DeMuth & Michael S. Greve, Agency Fi-

nance in the Age of Executive Government, 24 Geo. Mason L. Rev.

555, 556–557 (2017); MacDonald, supra note 4, at iii (“Overhead

may be paid for out of general tax revenues, but it is frequently

recovered through user fees”).

6 MacDonald, supra note 4, at iv. (“Interest in user-fee financ-

ing frequently arises from concerns that general revenue financing can lead to underfunding of some activities whose benefits

clearly exceed costs.”).

specific user fees when it believes they are warranted. 7

Indeed, in the very statute at issue in this case, Congress specifically authorized the Service to impose

monitoring fees on other fisheries. Pet. App. 32–34

(Walker, J., dissenting); see Pet. 17–18. When Congress decides not to provide for that type of funding,

the executive should not be given the authority to overrule the legislature’s choice.

2. Troublingly, the full extent of the executive’s

self-financing remains unknown. “Neither the Office

of Management and Budget, the Department of the

Treasury, the enforcement agencies, nor Congress

publishes—or evidently even compiles—systematic accounts of agency revenue raising and the uses made of

such funds.” 8 The Congressional Research Service has

concluded that “the format and level of detail of published data make it difficult to address some government-wide policy questions regarding user fees and

charges.” 9 Decisions like the one below—which permit

7 See id. at iii (confirming that the “USDA’s Food Safety and

Inspection Service” “has frequently requested expanded authority to charge user fees for its operations, but Congress has consistently rejected the requests, despite approving expanded userfee authority for other Federal agencies”).

8 Demuth & Greve, supra note 5, at 557; see Written Testimony

of Kevin Kosar, Dir. Governance Project, R St. Inst., at 7, to H.

Comm. Oversight & Gov’t Reform, Subcomm. on Gov’t Ops. &

Healthcare, Benefits, & Admin. Rules, Restoring the Power of the

Purse: Legislative Options, 114th Cong., 2nd sess. (Dec. 1, 2016),

available at https://tinyurl.com/96j6hspe (“I would suggest that

legislators should first get help mapping the scope of the problem.

It simply is not clear how many agencies collect monies from the

public and businesses, or what discretion they have over them.”).

9 D. Andrew Austin, Cong. Rsch. Serv., R45463, Economics of

Federal User Fees 10 (2019), https://tinyurl.com/3w7aasv7.

an agency to impose fees on regulated parties despite

no identifiable statutory authorization for doing so—

merely compound the problem.

Notwithstanding the lack of detailed data on the

subject, it seems plain that agencies are willing and

eager to finance themselves. The Federal Communications Commission (FCC), for example, collects a

“universal service fee” from telecommunications providers that “has no relation to any benefit conferred by

the FCC” and that the FCC simply “adjusts * * * each

quarter to keep pace with its program spending.” 10

The Public Company Accounting Oversight Board’s

annual budget is similarly “funded almost entirely by

its own tax, which it calls an ‘accounting support fee,’

on the equity capital or net asset value of public companies and broker-dealers.” 11 And, although members

of Congress once announced that they would seek to

counter executive changes to immigration policies

through appropriations to the Customs and Immigrations Service, those legislators later discovered that

this tactic would not work because the agency “is selffunded and financially independent of Congress.” 12

Not all of the executive’s attempts at self-funding

have been successful, however. The Fourth Circuit,

for instance, has rejected an attempt by the Federal

Aviation Agency to divert a portion of collected air carrier fees to increase bus service at Dulles International

Airport. Motor Coach Indus., Inc. v. Dole, 725 F.2d

958, 960–961, 967–968 (4th Cir. 1984). The court

10 Demuth & Greve, supra note 5, at 564–565.

11 Id. at 565.

12 Id. at 563.

refused to uphold “the agency's end-run around normal appropriation channels,” which would have “enabl[ed] it effectively to supplement its budget by $3

million without congressional action.” Id. at 968.

When the Federal Aviation Agency “finally followed

proper channels and requested budget authority from

Congress to purchase the necessary buses,” Congress

appropriated $500,000 less than the agency had taken

it upon itself to spend. Id. at 967, 968 & 968 n.14. As

the Fourth Circuit correctly recognized, therefore, it is

Congress, and not the executive, that has the authority to make funding decisions.

III. Increased Regulatory Costs Are Devastating

for Small Businesses.

Agency decisions to impose the costs of regulation

on regulated businesses, like the small family fishing

operations here, are not only constitutionally problematic but also financially devastating. While some large

corporations may have the resources necessary to take

on agency overhead as a cost of doing business, that

financial burden can be crushing for a small enterprise. The majority in this case, for instance, did not

dispute that the $710-per-day monitoring cost the Service imposed on fisheries can “reduce annual returns

by approximately 20 percent.” Pet. App. 4 (citation

and internal quotation marks omitted). That is a significant burden, particularly in an industry where

profit margins are often slim in the first place. 13

13 See Bob Egelko, Court taking another look at higher fishing

fees for nonresidents, sfgate.com (Feb. 26, 2016, 7:05 PM),

https://tinyurl.com/nhz2tv82 (discussing limitation on non-residents fishing in California and noting that “in the herring business * * * the profit margin is usually slim”); see also App. Vol. II

Indeed, this may well explain why Congress authorized monitoring fees in the Pacific, rather than the Atlantic, region: Pacific “waters * * * involve large commercial fishing operations that can more feasibly bear

the costs.” Pet. 17.

Despite Congress’s attempts to alleviate the regulatory burden on small businesses through legislation like the Regulatory Flexibility Act of 1980, it is

well established that “regulations often harm startups

more than large and established businesses in at least

three ways: disproportionate cost burdens, economies

of scale in compliance, and entry barriers.” 14 One

study concluded that “[f]irms with fewer than 50 employees pay nearly 75% more per year per employee to

comply with environmental compliance standards

than larger companies.” 15

Indeed, family-owned businesses like Petitioners

often struggle heavily under the weight of compliance

regimes. The extensive regulation of apple orchards,

for example, has posed difficulties for companies like

Indian Ladder Farms, a fifth-generation family operation in Albany, New York. Although estimates vary,

at A293, Loper Bright Enters., Inc. v. Raimondo, No. 21-5166

(D.C. Cir. 2022) (Service’s recognition that imposition of monitoring fees would be a “highly sensitive issue” in light of the “socioeconomic conditions of the fleets that must bear the cost[s]”).

14 Chris Edwards, Entrepreneurs and Regulations: Removing

State and Local Barriers to New Businesses 7, Cato Inst. (May 5,

2021), https://tinyurl.com/4f37h2zv.

15 Cindy Ryoo, Baker Inst. Blog, Environmental Regulation:

Reducing the Burden on Small Business and Entrepreneurs, Rice

Univ. Baker Inst. for Pub. Pol’y (Aug. 1, 2019), https://tinyurl.com/ycy5akur.

by even a minimal count, such orchards are governed

by approximately 5,000 federal restrictions. 16 It is no

wonder, as one expert in food policy has explained,

that farmers say that “stricter and stricter regulations

have put many of their neighbors and friends out of

business, and in doing so cost them their homes, land

and livelihoods.” 17 The regulatory burden facing these

family businesses is overwhelming.

The same is true for Petitioners, with the added

insult that the fisheries have now been forced to pay

for federally required monitoring themselves. And

federal charges are not the end of the regulatory story.

Fisheries are also governed by state regulators, which

may likewise enact stringent limitations on fishing operations. 18 Increased regulatory expenses in turn exacerbate other financial difficulties fisheries have

faced in recent years. Among other things, the price of

herring roe—which for some is the most prized part of

the herring catch—has declined sharply over the last

few decades. “In the 1990s, that roe could sell for

$1,000 a ton. But in 2019, that price was at $75.” 19

Steve Eder, When Picking Apples on a Farm With 5,000

Rules, Watch Out for the Ladders, N.Y. Times (Dec. 27, 2017),

https://tinyurl.com/2wv26xp7.

17 Ibid.

18 Renee Wolcott Shannon, The Fate of a Fishery: Shad and

River Herring at the Turn of the 21st Century, Coastwatch (Spring

2000), https://tinyurl.com/3bak9msx (explaining that “N[orth]

C[arolina] Marine Fisheries Commission * * * regulations have

become more and more stringent”).

19 Isabelle Ross, Togiak herring fishermen can tap a huge quota

in 2020, but some are still staying home, KDLG (Dec. 13, 2019,

11:33 AM), https://tinyurl.com/ypet7wb5.

In short, there is no question that fishing for herring is not an easy way to make a living. 20 Federal

agencies should not be permitted to make it more difficult and more expensive without explicit congressional authorization.

CONCLUSION

The court of appeals’ decision to the contrary has

devastating consequences for small businesses like Petitioners. Nor can it be squared with the separation of

powers the Constitution requires. As Justice Frankfurter once warned, “[t]he accretion of dangerous

power does not come in a day. It does come, however

slowly, from the generative force of unchecked disregard of the restrictions” imposed by the Constitution.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

594 (1952) (Frankfurter, J., concurring).

For these reasons, as well as those stated by Petitioners, the petition for certiorari should be granted,

and the lower court’s decision reversed.

20 Shannon, supra note 18 (explaining that shad and herring

fishing has provided sustenance for “[f]or generations of hardworking citizens—often the state’s poorest and most invisible

people”).

Respectfully submitted,