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

No. 22-451

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

---------------------------------♦--------------------------------BRIEF OF ATLANTIC LEGAL FOUNDATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------HERBERT L. FENSTER

3800 Fox Ridge

Longmont, CO 80503

(303) 834-9673

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

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i

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICUS CURIAE .................... 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 7

Chevron Deference Should Not Enable a Federal

Agency To Violate the Separation of Powers…………7

A. An agency interpretation that violates the

separation of powers is not “reasonable” for

Chevron deference purposes………………………...8

B. The NMFS-imposed, industry-funded at-sea

monitoring program violates the separation-ofpowers embodied by the Appropriations

Clause…………………………………………………11

CONCLUSION…………………………………………..16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Axon Ent., Inc. v. FTC,

No. 21-86, slip op. (U.S. Apr. 14, 2023) ............... 14

Baldwin v. United States,

140 S. Ct. 690 (2020) (Thomas, J., dissenting from

the denial of certiorari) ................................... .2, 10

Biden v. Nebraska,

No. 22-506, slip op. (U.S. June 30, 2023) .......... 3, 7

Buffington v. McDonough,

143 S. Ct. 14 (2022) (Gorsuch, J., dissenting from

the denial of certiorari) .................................... 2, 10

CFPB v. All Am. Check Cashing, Inc.

33 F.4th 218 (5th Cir. 2022) (en banc) ...... 3, 11, 12

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ............................................ 8, 9

City of Arlington v. Fed. Commc’ns Comm’n,

569 U.S. 290 (2013) ................................................ 8

Cmty. Fin. Servs. Ass’n of Am., Ltd., v. CFPB,

51 F.4th 616 (5th Cir. 2022), cert. granted,

No. 22-448 (U.S. Feb. 27, 2023). .............. 12, 13, 14

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ............................................ 2

iii

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................... 10

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ............................................ 2

Michigan v. EPA,

576 U.S. 743 (2015) ........................................ 2, 8, 9

Off. of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990) .............................................. 12

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 10

PHH Corp. v. CFPB,

881 F.3d 75 (2018) (en banc) ................................ 12

U.S. Dept. of Navy v. Fed. Lab. Rels. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) ............................ 12

U.S. House of Rep. v. Burwell,

185 F. Supp. 3d 165 (D.D.C. 2016) ................ 11, 14

Util. Air Regulatory Group v. EPA,

573 U.S. 382 (2014) ............................................ 8, 9

Constitution, Statutes, & Regulations

U.S. Const., art. I, § 9, cl. 7 ............................... 3, 6, 11

iv

Magnuson-Stevens Fishery Conservation and

Management Act, 16 U.S.C. §§ 1801-1884 ............ 4

16 U.S.C. § 1853(b)(8) ............................................ 5, 13

50 C.F.R. § 648.11...................................................... 13

50 C.F.R. § 648.11(g) ................................................... 3

50 C.F.R. § 648.11(g)(3)(i) ......................................... 14

50 C.F.R. § 648.11(g)(3)(viii) ..................................... 14

50 C.F.R. §§ 648.11(g) & (h) ........................................ 5

50 C.F.R. § 648.11(h)(5)(vii) ........................................ 5

Other Authorities

85 Fed. Reg. 7,414 (Feb. 7, 2020) .................... 3, 11, 14

Kate Stith, Congress’ Power of the Purse, 97 Yale L.J.

1343, 1344 (1988) ........................................... 11, 15

Philip Hamburger, Chevron Bias, 84 Geo. Wash. L.

Rev. 1187 (2016) ..................................................... 9

1

INTEREST OF THE AMICUS CURIAE 1

Established in 1977, the Atlantic Legal Foundation

(ALF) is a national, nonprofit, nonpartisan, public

interest law firm whose mission is to advance the rule

of law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from the distinguished legal

scholars, corporate legal officers, private practitioners,

business executives, and prominent scientists who

serve on its Board of Directors and Advisory Council,

the Foundation pursues its mission by participating as

amicus curiae in carefully selected appeals before the

Supreme Court, federal courts of appeals, and state

supreme courts. See atlanticlegal.org.

*****

Respect for the separation of powers is

fundamental to the limited and responsible form of

government that the Constitution embodies and ALF

long has advocated as an amicus curiae in numerous

cases before this Court—most recently in Consumer

Financial Protection Bureau v. Community Financial

Services Association of America, Limited, No. 22-448

and Biden v. Nebraska No. 22-506.

1 No counsel for a party authored this brief in whole or part, and

no party or counsel other than the amicus curiae and its counsel

made a monetary contribution intended to fund preparation or

submission of this brief.

2

The far-reaching question that the Court will be

addressing here—whether Chevron deference should

be overruled or at least clarified—implicates the

separation of powers.

See, e.g., Buffington v.

McDonough, 143 S. Ct. 14, 18 (2022) (Gorsuch, J.,

dissenting from the denial of certiorari) (Chevron

“pose[s] a serious threat to some of our most

fundamental commitments as judges and courts”);

County of Maui v. Hawaii Wildlife Fund, 140 S. Ct.

1462, 1482 (2020) (Thomas, J., dissenting)

(“[D]eference under Chevron . . . likely conflicts with

the Vesting Clauses of the Constitution.”); Baldwin v.

United States, 140 S. Ct. 690, 692 (2020) (Thomas, J.,

dissenting from the denial of certiorari) (“Chevron

deference undermines the ability of the Judiciary to

perform its checking function on the other branches.”);

Kisor v. Wilkie, 139 S. Ct. 2400, 2446 n. 114 (2019)

(Gorsuch, J., concurring in the judgment) (“[T]here are

serious questions . . . about whether [the Chevron]

doctrine comports with the . . . Constitution.”);

Michigan v. EPA, 576 U.S. 743, 761 (2015) (Thomas,

J., concurring) (“Chevron deference raises serious

separation-of-powers questions.).

Regardless of whether Chevron deference offends

the separation of powers categorically, it does so in

this case if federal courts are required to accept an

Executive Branch agency’s statutory interpretation

that itself violates the separation of powers. At the

very least, a federal agency should not be able to hide

behind Chevron while arrogating to itself a pivotal

power—here, the “power of the purse”—that the

Constitution assigns exclusively to Congress. Indeed,

3

“[a]mong Congress’s most important authorities is its

control of the purse.” Biden v. Nebraska, No. 22-506,

slip op., at 24 (U.S. June 30, 2023).

As Circuit Judge Walker’s dissenting opinion in

this case explains, Respondent National Marine

Fisheries Service (NMFS) “had trouble affording its

preferred monitoring with just its congressionally

appropriated funds” so it “attempted a workaround.”

App-22-23. The agency’s scheme—“forc[ing] the

fishermen to pay the wages of federally mandated

monitors,” App-24—violates the purpose of the

Appropriations Clause, U.S. Const., art. I, § 9, cl. 7,

and in so doing, the separation of powers.

The

Appropriations

Clause

“embodies

a

fundamental separation of powers principle—

subjugating the executive branch to the legislature’s

power of the purse.” CFPB v. All Am. Check Cashing,

Inc. 33 F.4th 218, 221 (5th Cir. 2022) (en banc) (Jones,

J., concurring). It assigns to Congress alone the power

to decide whether, and to what extent, an Executive

Branch program or activity, even if otherwise

authorized by statute, should be funded.

The NMFS-imposed “industry-funded monitoring”

program underlying this case is entirely a creature of

regulation. See 50 C.F.R. § 648.11(g); 85 Fed. Reg.

7,414 (Feb. 7, 2020). It hijacks the critical check on

Executive Branch power that the Constitution,

through the Appropriations Clause, vests exclusively

in Congress. The Service’s attempt to “workaround”

the lack of congressional funding for the Atlantic

herring fishery at-sea compliance monitoring program

4

that it wishes to conduct is a serious breach of the

separation of powers.

In addressing the viability and/or scope of Chevron

deference, the Court should use this case as an

opportunity to correct, or at least admonish, the

Service’s brazen disrespect for the Appropriations

Clause. Over the course of many decades, both the

Executive Branch and Congress, often in concert, have

violated the letter and/or purpose of the

Appropriations Clause in too many ways to catalog

here. Only this Court can begin to restore the

Appropriations Clause’s crucial constitutional check

against abuse of Executive Branch power.

SUMMARY OF ARGUMENT

The Court has limited its review to the second

question presented by the petition for a writ of

certiorari: whether Chevron should be overruled, or at

least clarified so that courts do not equate statutory

silence with statutory ambiguity for purposes of

deferring to an agency’s assertion of controversial

powers under a statute that it administers.

This question, of course, cannot be addressed in a

vacuum. It arises here because NMFS, in an effort to

utilize at-sea government inspectors for whom

Congress has appropriated no funds, has read into the

Magnuson-Stevens

Fishery

Conservation

and

Management Act, 16 U.S.C. §§ 1801-1884, authority

to shift the cost to the regulated fishing vessel owners.

Invoking Chevron, NMFS contends that courts

(including this Court) must accept its self-serving

interpretation—a

statutory

construction

that

5

squarely conflicts with

Appropriations Clause.

the

purpose

of

the

Judge Walker noted in his dissent that the

rulemaking record establishes that the Service’s

efforts to impose industry-funded at-sea monitoring

were motivated by the lack of congressional

appropriations for federally paid at-sea observers in

the Atlantic herring fishery and other New England

fisheries. See App-23 n.11. To circumvent the lack of

funding, NMFS has interpreted the Act to silently

authorize imposition of a requirement that fishing

vessels regulated by the New England Fishery

Management Council hire and pay the wages of

NMFS-approved at-sea “monitors.”

See 50 C.F.R.

§§ 648.11(g) & (h). Just like federally paid at-sea

“observers,” these monitors are government agents

“carried on board a vessel . . . for the purpose of

collecting data necessary for the conservation and

management of [a] fishery.” 16 U.S.C. § 1853(b)(8).

The many types of reports that industry-funded at-sea

regulatory compliance monitors are required to

generate for and provide to NMFS are listed at 50

C.F.R. § 648.11(h)(5)(vii).

The small-business-crippling cost for these

intrusive at-sea monitors—“more than $ 700 per day”

per monitor and “the opportunity cost of giving to the

monitor a bunk that would be otherwise occupied by a

working fisherman”—“could reduce financial returns

to the fishermen by twenty percent.” App-24, 29

(Walker, J., dissenting.).

The D.C. Circuit panel majority held at Chevron

“Step One” that “[n]either Section 1853(b)(8) nor any

6

other provision of the Act explicitly allows the Service

to pass on to industry the costs of monitoring

requirements included in fishery management plans.”

App-13. But asserting that “the Act may not

unambiguously resolve whether the Service can

require industry-funded monitoring,” App-5, the

majority proceeded to Chevron “Step Two” and held

that

deference

to

the

Service’s

statutory

interpretation is required. According to the majority,

“Section 1853(b)(8)’s silence on the issue of cost of atsea monitoring provides no basis for applying different

standards of review here.” App-15-16.

In contrast, Judge Walker indicated in his dissent

that “Congress’s silence on a given issue does not

automatically create such ambiguity or give an agency

carte blanche to speak in Congress’s place. In fact, all

else equal, silence indicates a lack of authority.” App26.

Even assuming that the Act’s silence on New

England fishery industry-funded monitoring—in

contrast to the Act’s “specific provisions for industry

funding elsewhere,” App-33—should be viewed as an

ambiguity, the majority opinion nowhere considers

whether Chevron deference should be afforded if the

Service’s interpretation of its own authority is

unconstitutional. Here, the Service’s interpretation

facilitates a violation of a fundamental separation-ofpowers provision, the Appropriations Clause, U.S.

Const., art. I, § 9, cl. 7, and therefore, should be

afforded no deference.

The Service’s contention that it has authority

under the Magnuson-Stevens Act to impose industry-

7

funded at-sea monitoring in the absence of sufficient

congressionally appropriated funds to pay for that

governmental function violates the Appropriations

Clause. The Framers included the Appropriations

Clause in Article I of the Constitution as a check

against abuse of otherwise authorized Executive

Branch activities. The Service’s industry-funded

monitoring program is a transparent attempt to

circumvent

the

constitutionally

mandated

congressional appropriations process. By requiring

diversion of nongovernmental funds to pay for a

governmental function, the Service’s monitoring

program divests Congress of the control that the

Appropriations Clause requires it to exercise through

its power of the purse. The industry-funded program,

therefore, breaches the separation of powers.

If Chevron deference excludes anything, it should

be the Service’s unconstitutional power grab here. An

agency interpretation cannot be reasonable, or

permissible, or consistent with congressional intent, if

it conflicts with the Constitution.

ARGUMENT

Chevron Deference Should Not Enable a

Federal Agency To Violate the

Separation of Powers

“[T]his is a case about one branch of government

arrogating to itself power belonging to another. . . . [I]t

is the Executive seizing the power of the Legislature.”

Biden v. Nebraska, slip op., at 21.

8

A. An agency interpretation that violates the

separation of powers is not “reasonable”

for Chevron deference purposes

“Chevron directs courts to accept an agency’s

reasonable resolution of an ambiguity in a statute that

the agency administers.” Michigan v. EPA, 576 U.S.

at 751; see Chevron U.S.A. Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 844 (1984) (“[A] court may

not substitute its own construction of a statutory

provision for a reasonable interpretation made by the

administrator of an agency.”). “Even under this

deferential standard, however, ‘agencies must operate

within the bounds of reasonable interpretation.’”

Michigan v. EPA, 576 U.S. at 751 (quoting Util. Air

Regulatory Group v. EPA, 573 U.S. 382, 392 (2014)).

“No matter how it is framed, the question a court

faces when confronted with an agency’s interpretation

of a statute it administers is always, simply, whether

the agency has stayed within the bounds of its statutory

authority.” City of Arlington v. Fed. Commc’ns

Comm’n, 569 U.S. 290, 297 (2013). When an agency

has “strayed far beyond those bounds,” id., its

statutory interpretation is “unreasonable,” id. at 759,

and “does not merit deference.” Util. Air, 573 U.S. at

393.

An agency interpretation purporting to authorize

regulatory activity that conflicts with the

Constitution, particularly with the powers and duties

that Article I assigns exclusively to Congress—such as

the power of the purse—is out of bounds. Any such

interpretation must be viewed as “unreasonable—i.e.,

something Congress would never have allowed.”

9

Michigan v. EPA, 576 U.S. at 771 (Kagan, J.,

dissenting). It “does not merit deference.” Util. Air,

573 U.S. at 393.

The criteria that Chevron establishes for deference

confirm what seems apparent: An agency’s statutory

interpretation of its own regulatory authority should

not be deemed reasonable, much less entitled to

deference, if it violates the Constitution.

“The second step of Chevron comes in three layers.”

Philip Hamburger, Chevron Bias, 84 Geo. Wash. L.

Rev. 1187, 1221 n.104 (2016). More specifically, the

question of whether an agency’s interpretation of its

own statutory authority is “reasonable” is “framed by

the initial question of whether the agency

interpretation is permissible and by the follow-up

question of whether it goes beyond congressional

intent.” Id; see Chevron, 467 U.S. at 843 (an agency’s

interpretation must be based on “a permissible

construction of the statute”); id. at 843 n.9, 845 (a

court “must reject administrative constructions which

are contrary to clear congressional intent,” or “not

one[s] that Congress would have sanctioned”)

(internal quotation marks omitted).

Where, as here, an agency interpretation breaches

the separation of powers by effectively annulling the

Constitution’s allocation of a particular power to

Congress, e.g., the power of the purse, it should not be

viewed as “permissible” for Chevron deference

purposes. Nor should a court infer that Congress

would have silently intended to cede such an exclusive

and foundational legislative power to an Executive

Branch agency.

10

Indeed, Chevron “rests on the fiction that silent or

ambiguous statutes are an implicit delegation from

Congress to agencies.” Baldwin, 140 S. Ct. at 691

(Thomas, J., dissenting from the denial of certiorari).

Congress,

however,

“may

not

delegate

. . . powers which are strictly and exclusively

legislative.” Gundy v. United States, 139 S. Ct. 2116,

2133 (2019) (Gorsuch, J., dissenting). Decisions

concerning the funding for Executive Branch agencies

and their activities, a profound and sweeping

responsibility that the Appropriations Clause assigns

entirely to Congress, fits squarely within this

nondelegable category.

A statutory interpretation that enables an agency

to engage in regulatory activity that conflicts with the

Constitution’s separation of powers also is “plainly

erroneous” and should not be afforded deference. See

generally Perez v. Mortg. Bankers Ass’n, 575 U.S. 92,

110 (2015) (Scalia, J., concurring in the judgment)

(“[D]eference is not an inexorable command in all

cases, because (for example) it does not apply to

plainly

erroneous

interpretations.”)

(internal

quotation marks omitted).

Dissenting from the denial of certiorari, Justice

Gorsuch recently explained in Buffington v.

McDonough, 143 S. Ct. at 20, that “[o]verreading

Chevron . . . encourages executive officials to write

ever more ambitious rules on the strength of ever

thinner statutory terms, all in the hope that some

later court will find their work to be at least

marginally reasonable.” The Court should put an end

to such Executive Branch overreading. The Service’s

11

attempt here to circumvent the Appropriations Clause

by imposing industry-funded monitoring for the

Atlantic herring fishery, and potentially for all New

England fisheries, see 85 Fed. Reg. at 7,414, does not

even pass a “marginally reasonable” test.

B.

The NMFS-imposed, industry-funded atsea monitoring program violates the

separation-of-powers embodied by the

Appropriations Clause

1. “[T]he separation of powers principle enshrined

in the Appropriations Clause” is “subjugating the

executive branch to the legislature’s power of the

purse.” All Am. Check, 33 F.4th at 221 (Jones, J.,

concurring). “And separation of powers is at the heart

of our constitutional government in order to preserve

the people’s liberty and the federal government’s

accountability to the people.” Id.

“The Constitution places the power of the purse in

Congress: ‘No Money shall be drawn from the

Treasury, but in Consequence of Appropriations made

by Law . . . .’ This empowerment of the legislature is

at the foundation of our constitutional order.” Kate

Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343,

1344 (1988) (quoting U.S. Const., art. I, § 9, cl. 7); see

also U.S. House of Rep. v. Burwell, 185 F. Supp. 3d

165, 165 (D.D.C. 2016) (“[A]ppropriations are an

integral part of our constitutional checks and balances

insofar as they tie the Executive Branch to the

Legislative Branch via purse strings.”)

The Appropriations Clause is not only “a bulwark

of the Constitution’s separation of powers,” but also

12

“particularly important as a restraint on Executive

Branch officers.” U.S. Dept. of Navy v. Fed. Lab. Rels.

Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012). Its pivotal

role in maintaining the separation of powers, and

controlling Executive Branch programs through the

power of the purse, “has been repeatedly affirmed.”

Cmty. Fin. Servs. Ass’n of Am., Ltd., v. CFPB, 51 F.4th

616, 637 (5th Cir. 2022), cert. granted, No. 22-448 (U.S.

Feb. 27, 2023); see id. at 637-38 (collecting cases).

2. The “fundamental and comprehensive purpose”

of the Appropriations Clause “is to assure that public

funds will be spent according to the letter of the

difficult judgments reached by Congress as to the

common good and not according to the individual favor

of Government agents.” Off. of Pers. Mgmt. v.

Richmond, 496 U.S. 414, 427-28 (1990); see also PHH

Corp. v. CFPB, 881 F.3d 75, 197 n.19 (2018)

(Kavanaugh, J., dissenting) (“As those who have

labored in Washington well understand, the regular

appropriations process brings at least some measure

of oversight by Congress.”).

It is not mere happenstance that Congress

is the chief guardian of the purse strings.

Drawing on the British experience, the

Framers placed the national government’s

fiscal powers in Congress’s hands to check

the propensity for aggrandizement and

consequent loss of liberty endemic to a

powerful executive branch.

All Am. Check, 33 F.4th at 225 (Jones, J., concurring);

see id. at 225-32 (discussing “[t]he historical origins of

Congress’s control over the purse strings”).

13

[T]he Framers carefully separate[d] the

“purse” from the “sword” by assigning to

Congress and Congress alone the power of

the purse. The Framers’ reasoning was

twofold. First, they viewed Congress’s

exclusive “power over the purse” as an

indispensable check on the overgrown

prerogatives of the other branches of the

government. . . . The Framers also believed

that vesting Congress with control over

fiscal matters was the best means of

ensuring transparency and accountability

to the people.

Cmty. Fin. Servs. Ass’n, 51 F.4th at 635-36 (cleaned

up).

3. The industry-funded monitoring program being

challenged in this case is an effort by NMFS to sever

Congress’s purse strings, or at least avoid

entanglement in them. This attempt at constitutional

circumvention obstructs the purpose of the

Appropriations Clause.

There can be no doubt that the so-called thirdparty at-sea “monitors” whom NMFS is requiring

Atlantic herring fishery vessel owners to quarter and

compensate are acting as government agents

performing governmental functions—the same data

collection and compliance monitoring duties as

federally paid at-sea “observers.” See 16 U.S.C.

§ 1853(b)(8); 50 C.F.R. § 648.11; Pet. for Writ of Cert.

at 8 n.4. But insofar as the Magnuson-Stevens Act

authorizes NMFS to require at-sea observers or

monitors, there is a “distinction between authorizing

14

legislation and appropriating legislation.” Burwell,

185 F. Supp. at 168-69. “A law alone does not suffice.”

Cmty. Fin. Servs. Ass’n, 51 F.4th at 640. NMFS

readily admits that vessel owners are being required

to foot the bill for Atlantic herring fishery at-sea

monitoring because Congress has not appropriated

funds to cover it. See App-22-23 & n.11 (Walker, J.,

dissenting).

NMFS “knows a good deal” about fish, “but nothing

special about the separation of powers.” Axon Ent.,

Inc. v. FTC, No. 21-86, slip op., at 17-18 (U.S. Apr. 14,

2023). According to NMFS, however, its industryfunded monitoring program is “consistent with legal

requirements”

because

“government

cost

responsibilities are paid by the government and the

government’s costs are differentiated from the

industry’s cost responsibilities.” 85 Fed. Reg. at 7,414.

This assertion misses the point.

Although the

Service’s regulations state that its own “cost

responsibilities” include, for example, “[t]he labor and

facilities associated with training and debriefing of

monitors,” 50 C.F.R. § 648.11(g)(3)(i), the regulations

also make clear that “[t]he industry is responsible for

all other costs associated with [industry-funded

monitoring] programs.” Id. § 648.11(g)(3)(viii).

Shifting to vessel owners the direct cost of hiring

at-sea

government

inspectors

violates

the

Appropriations Clause because it divests Congress of

its purse strings. It deprives Congress of the control

15

that the Appropriations Clause provides as a check

against the Executive Branch. 2

If the Executive could avoid limitations

imposed by Congress in appropriations

legislation by independently financing its

activities with private funds . . . this would

vitiate the foundational constitutional

decision to empower Congress to

determine what actions shall be

undertaken in the name of the United

States.

Federal agencies may not resort to

nonappropriation financing because their

activities are authorized only to the extent

of their appropriations.

Stith, supra at 1356.

2 Insofar as the Magnuson-Stevens Act authorizes industryfunded monitoring under limited circumstances not applicable

here, see App-33 (Walker, J., dissenting), we question the

constitutionality of those provisions, but recognize that would be

a case for another day.

16

CONCLUSION

If the Court decides to retain Chevron deference in

some form, agency interpretations purporting to

authorize regulatory activity that violates the

Constitution—especially foundational separation-ofpowers provisions such as the Appropriations

Clause—should be expressly excluded.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

HERBERT L. FENSTER

3800 Fox Ridge

Longmont, CO 80503

(303) 834-9673

July 2023