In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA President Mark Chenoweth discuss a major development in NCLA’s challenge to a federal rule requiring fishermen to pay for government monitors placed on their boats—despite no clear statutory authorization.

After a district court upheld the rule using a theory that conflicts with the Supreme Court’s decision in Loper Bright, NCLA appealed to the First Circuit. Now, seven separate amicus briefs—from across the legal and ideological spectrum—have weighed in, each highlighting a different flaw in the district court’s analysis.

John and Mark walk through the most compelling arguments from the amici, including post-Loper Bright de novo review, the misuse of “necessary and appropriate” authority, clear-statement rules, the Major Questions Doctrine, constitutional limits on agency power, and why reviving Chevron-era reasoning under new labels is not permissible.

Host 2: John Vecchione: Welcome to Unwritten Law. This is John Vecchione. I’m here with Mark Chenoweth, as usual. Like the Post Office, neither sleet nor snow, nor ice or driving rain will stop us from producing Unwritten Law. In any event, I hope you’ve all dug out or are digging out well from the snowstorm. But we have some very good news to report.

We filed our brief before the First Circuit, trying to overturn the district court that found that fishermen had to pay for the monitors that the government puts on their boats without any statutory authority. So, we appealed that ruling, and I think we’ve discussed that before. But we have now received seven, the magnificent seven, I want to say, Mark, amicus briefs.

[Crosstalk]

Host 1: Mark Chenoweth: We weren’t the only ones outraged by the court’s decision?

[Crosstalk]

Host 2: John Vecchione: We were not the only ones outraged, and some of them are old friends of ours, some of them. But all of them did an absolutely good job because when I was reading them, except for Chevron is overruled, there wasn’t a lot of repetition. The arguments are all slightly different and all really interesting. In fact, even though I’ve been doing this for years, I learned a number of things that I did not know or had not seen put so starkly before. That doesn’t always happen once you’re really used to something, right?

[Crosstalk]

Host 1: Mark Chenoweth: Sure.

Host 2: John Vecchione: So, I’d like to go through it and give a shoutout to each group that put one in. I’ll give pride of place to Americans for Prosperity and Ryan Mulvey, who obviously was also the counsel on Loper Bright as cause of action.

Host 1: Mark Chenoweth: They know a little bit about this topic.

Host 2: John Vecchione: They know a little bit about this, yes. This amicus brief was very clear on some post-Loper decisions, like McKesson, and the county case that came out where the Supreme Court has reinforced Loper Bright, and reinforced the idea that the courts, first thing they should do is decide the bounds of what Congress allowed the agency to do.

Host 1: Mark Chenoweth: As a matter of statutory interpretation.

Host 2: John Vecchione: As a matter of statutory interpretation. It also pounded very hard that it should be de novo review. Each of the four things the Supreme Court has said to look over, they’ve got to look over and use cannons and things like that. But then, the really important part of this brief that I think was more stark than in many of the others was, you can’t use necessary and appropriate to do anything you want.

They argue very strongly that this rule by the agencies to have the fishermen pay for their monitors is neither necessary nor appropriate. Because there’s appropriations by Congress, because the fact is there’s no delta. There’s no delta between what the paid-for monitors and the unpaid-for monitors are going to do. So, it was very stark and clear what the Supreme Court has done since Loper Bright, and that none of it was addressed by this district court, and none of it was followed by this district court.

Host 1: Mark Chenoweth: Who’s next?

Host 2: John Vecchione: Next is Buckeye. Our friend David Tryon said that this will cause constitutional confusion. He has three arguments. One of which we actually had in the Gaither case, but we removed. I haven’t seen it in a while, but I enjoyed how he did it. That is first, all bills for raising revenue shall originate in the House. That’s appropriations; that arguments been made.

Host 1: Mark Chenoweth: These appropriations originated in the executive branch, essentially.

[Crosstalk]

Host 2: John Vecchione: In the executive branch. Actually, in National Marine Fisheries and NOAA, they just made it up. It wasn’t like the president said, “Go do this.”

Host 1: Mark Chenoweth: Well, is the argument that there was an underlying organic statute that originated in the Senate instead of the House? Is that part of the argument here?

Host 2: John Vecchione: No. No. No. No. But the fact is, there’s no money. The House didn’t do anything to raise money, except, of course, appropriate for observers, right?

Host 1: Mark Chenoweth: Correct.

Host 2: John Vecchione: But then, he has one that we always liked, but we felt was perhaps a stretch, but that’s what amicus briefs are for. That is the Third Amendment. The Third Amendment says, “No quartering of troops in your house.” But what this brief does is note that because our fishermen are out there for two to three weeks, this is their home.

Host 1: Mark Chenoweth: Right.

Host 2: John Vecchione: They are not out there for just a little few days. They’re out there for weeks. That raises two things that he points out that the quartering of troops wasn’t the only thing; they didn’t want any government officers there. He cites where the colonists put that in, even though the Constitution says, “quartering troops,” it meant federal officers. That was an interesting argument.

Host 1: Mark Chenoweth: You can’t just call them National Guard, and then you can have them in there.

[Crosstalk]

Host 2: John Vecchione: Correct. No. Exactly. Then he said, obviously, in the home, the Fourth Amendment violations are also heightened because it’s a more protected area than outside or anywhere else, and should be looked at like that. So, those were novel arguments. But I think they also showed that there should be more protection in this area. Now, Cato is the next one.

Host 1: Mark Chenoweth: You got the real ABCs of amicus briefs here.

[Crosstalk]

Host 2: John Vecchione: I did. I did. Thomas Berry and Mr. Cavedon, who I mention because I do not recall seeing him on Cato briefs; I apologize. But he has a very pithy statement that I wish I had thought of to oppose this. He says, “You bear your own compliance costs, not the governments from regulations.” This is the government’s compliance cost because they’re doing government jobs. I think that really, really isolates what the stolen bases are of this default norm, which we’ll talk about.

Host 1: Mark Chenoweth: Got to use the air quotes, “default norm,” like Chief Justice Roberts.

[Crosstalk]

Host 2: John Vecchione: Yes, exactly. They cite Chenoweth and Samp in the Wallison and Yoo book.

Host 1: Mark Chenoweth: Is there a better place to cite?

Host 2: John Vecchione: No. No. Certainly not. So, Mark Chenoweth and Rich Samp are in The Administrative State book by Wallison and Yoo, and they cite it prominently. Then, they do something that I haven’t seen in a brief, which I really enjoyed, which is they gathered together all of the Supreme Court cases that required clear statements for doing things.

They say that this is easily in this area. Even if Congress wanted to, they could do it clearly; they’ve done it before. But look at all the things the Supreme Court – they layout, 12 or 15, quite a number of clear statement rules. I thought it was very effective because I hadn’t seen it before. I understand Mr. Cavedon is responsible for that.

Host 1: Mark Chenoweth: Okay. Terrific. Well, thank you for that. In other words, this is clear statement rule territory. This isn’t default norm territory.

[Crosstalk]

Host 2: John Vecchione: Correct.

[Crosstalk]

Host 1: Mark Chenoweth: Is that the idea?

Host 2: John Vecchione: Correct.

Host 1: Mark Chenoweth: Okay.

Host 2: John Vecchione: Then Landmark Legal put in a brief, and they’re the only ones who tackled the major questions doctrine.

Host 1: Mark Chenoweth: Okay.

Host 2: John Vecchione: The way they get to the major questions, because you think, “Oh, well, fishing maybe that it doesn’t –” Because inspection regimes are so common, this cause shifting becomes a major question because it’s going to permeate the entire federal government. It’s not a one-off.

[Crosstalk]

Host 1: Mark Chenoweth: If they’re right about this default norm, then that’s a major question.

[Crosstalk]

Host 2: John Vecchione: Correct. Right. You can’t isolate it; it’s going to cover a lot more than just this case. I thought that was a very good argument. I thought they were dead on. Again, this is an idea that was not in our brief. Well, we did say that only this case ever does this, and it should spread to others. But he’s saying, if it spreads to others is a major question, which is obviously true, I think.

Host 1: Mark Chenoweth: Well, if it’s a default norm, he’s already claiming it.

Host 2: John Vecchione: Right, exactly.

Host 1: Mark Chenoweth: He’s not saying it’s a default norm in this case.

[Crosstalk]

Host 2: John Vecchione: The judge.

Host 1: Mark Chenoweth: The judge is saying a default norm for all the cases, and this is just a specific application of it.

[Crosstalk]

Host 2: John Vecchione: Correct. Correct.

Host 1: Mark Chenoweth: So, it is. It’s a major question without any spreading yet, the way he’s used it.

Host 2: John Vecchione: That’s right.

[Crosstalk]

Host 1: Mark Chenoweth: The judges used it.

Host 2: John Vecchione: He cites provisions of the FAA and the NRC. The FAA for these inspectors uses appropriations. The NRC uses fees from industry that are statutorily identified by Congress. He says, “A thorough review by Landmark Legal could not find one place besides here and Gaither, where any monitors were funded in this manner.” I mean, that is powerful, I think.

I agree with it, but I like to see – because you always think you might be missing something. All these people looked for the things I was looking for and did not find it, so I was very pleased. AAF and friends, they put in a lot. There were a lot of people, I can’t mention them all. They have 21 different groups.

Host 1: Mark Chenoweth: But this is Mike Pence’s group, and Marc Wheat is the General Counsel.

[Crosstalk]

Host 2: John Vecchione: Yes, and Marc Wheat signed it. Correct. It’s a real originalist brief. It brings out the Madison and Coolidge statements of what the government should be doing. That taking money, fees, taxes, or any other type of exaction from the people cannot just be done willy-nilly, and that the Constitution is really set up not to allow that.

It’s very original, I think. They cite Ogden, they cite very old cases, or the founders themselves. Then, the second part compares it to Woodrow Wilson and the administrative progressives and how they’re at war with this idea, and because they’re at war with this idea, a court that is textualist and originalist should not be going in that direction.

Host 1: Mark Chenoweth: This gets back to our RJ Pestritto article that we had on the podcast a couple episodes back.

Host 2: John Vecchione: Correct. It also hits very hard on, no general powers in the Constitution, its enumerated powers. Congress does have enumerated powers in this area, but nobody else does anywhere in the Constitution.

Host 1: Mark Chenoweth: Well, and there’s no general federal police power.

Host 2: John Vecchione: Correct.

Host 1: Mark Chenoweth: So, they can’t just go inspect fish because there’s a general federal police power. They have to have statutory authority to do it.

Host 2: John Vecchione: That’s what they say. Exactly. Then, the NFIB Small Business Legal Center and the Manhattan Institute all joined in a brief by our friends Joel Nolette at Wiley Rein and Ilya. Trevor Burrus is back.

[Crosstalk]

Host 1: Mark Chenoweth: Right. Right.

[Crosstalk]

Host 2: John Vecchione: He used to be at Cato; he’s now at the Manhattan Institute. I’m always glad to see him on a brief. He’s very good at this. This brief really shows that the district court absolutely discarded Loper Bright by not doing a thorough de novo review and relying on all cases that were previous deference cases. The fact that he didn’t use an cannons, he didn’t use anything except to rely on previous cases that had been either overruled or vacated.

Host 1: Mark Chenoweth: We’re seeing this, not just in your case, John, we’re seeing this across the board. We’re seeing judges rely on old precedent, Chevron precedent, and then saying, “Well, I’m not relying on Chevron.” Yes, you are.

Host 2: John Vecchione: Yes, you are.

Host 1: Mark Chenoweth: You can’t rely on old circuit president that was based on Chevron in order to avoid doing post-Loper Bright statutory analysis. That is not allowed, judges.

[Crosstalk]

Host 2: John Vecchione: Particularly when a case you’re in was absolutely vacated. So, there was nothing left of it. Not only does the Supreme Court vacate it, the First Circuit, when they sent it to them, said, “It’s overruled and vacated.” The First Circuit put it in their own order. So, it’s not like they were silent about it.

Host 1: Mark Chenoweth: This isn’t like citing an unpublished opinion.

Host 2: John Vecchione: Correct.

Host 1: Mark Chenoweth: This is citing a vacated opinion, which is not something one can treat as precedent.

Host 2: John Vecchione: Right. They said that he did a cursory statutory analysis and poisoned the analysis by using all of these vacated cases. Poison was a nice word, I thought. Then, they did something that I thought was clever.

Host 1: Mark Chenoweth: Poisoned is a nice word because once a judge is using this flawed methodology, it’s hard to disaggregate the methodology from the result. Because how can you say the result is fine when you used this troubling method to get there?

Host 2: John Vecchione: Right. Then, they talk about the cursory statutory analysis he did. It was basically seven paragraphs. They compared it to Corner Post on remand. If you remember, Corner Post is the one that said that basically the statute of limitations begins a new ever time you’re injured by a regulation, even if the statute has passed.

Host 1: Mark Chenoweth: Well, if you weren’t around.

Host 2: John Vecchione: If you weren’t around.

Host 1: Mark Chenoweth: If your entity didn’t exist.

Host 2: John Vecchione: Right.

Host 1: Mark Chenoweth: And didn’t have an earlier chance to oppose it.

[Crosstalk]

Host 2: John Vecchione: To oppose. Then, because this was reopened, this judge did a very strong de novo statutory analysis of whether it was allowed or not.

Host 1: Mark Chenoweth: This is the district judge in North Dakota or South Dakota? Whichever it was. One of the Dakotas.

[Crosstalk]

Host 2: John Vecchione: Maybe Nevada.

[Crosstalk]

Host 1: Mark Chenoweth: No, it was definitely one of the –

[Crosstalk]

Host 2: John Vecchione: It was Dakotas. It was Dakotas. Of course, banking. Anyway, they point out that these two analyses, if you put them side by side, they’re night and day. There were 41 substantive paragraphs in the Corner Post going through every single part of the statute, every part of the language, every part of all the cannons. Everything to come out with this. So, they compare this and say, “Look, the district court judge has to be overruled just for not using every tool at his disposal.” Near and dear to my heart, Westlaw says nobody has cited a default norm except the Relentless Court, ever.

Host 1: Mark Chenoweth: Meaning the Gaither default norm that this judge was citing himself from before.

[Crosstalk]

Host 2: John Vecchione: Correct. That Kayatta cited back eight years ago.

Host 1: Mark Chenoweth: No one else picked up on that in the interim?

[Crosstalk]

Host 2: John Vecchione: No one else. They said if there was a default norm, wouldn’t you think someone else would know about it?

Host 1: Mark Chenoweth: It’s a very subtle default norm; very secret.

[Crosstalk]

Host 2: John Vecchione: Subtle. Subtle. Yes, exactly. All those secret default norms.

[Crosstalk]

Host 1: Mark Chenoweth: That’s right. That’s right. Almost cult-like.

Host 2: John Vecchione: Finally, the Chamber of Commerce, Chris Walker wrote it for them over at Michigan. He says, “This is almost an anti-Loper analysis.” He did fix the boundary of authorities, which he should have done first, the district court. It just simply didn’t happen. He fixed no boundaries of what they’re allowed to do and not to do.

Host 1: Mark Chenoweth: Well, and the significance of this one, to me, is Chris Walker was no friend of Loper Bright on the front end.

[Crosstalk]

Host 2: John Vecchione: Correct. Correct.

Host 1: Mark Chenoweth: So, the fact that he, on the back end, is looking at this saying, “Eh, this isn’t what the court told you to do.”

Host 2: John Vecchione: He was more friendly to Chevron than many of our people in this area. Correct.

[Crosstalk]

Host 1: Mark Chenoweth: Absolutely. Absolutely.

Host 2: John Vecchione: He says that the substantive law doesn’t allow this, and then the catch-all doesn’t do it. This is the necessary and appropriate area. He says, “But a catch-all can’t do something this big, unless you’ve got something else there, and there’s nothing there.” Then, he drops the hammer. He says, “The default norm is Chevron by other means.” The Supreme Court did not put in Loper Bright to allow substitutions of default norms. I think that hits it hard.

I think they also, in the Chamber brief, they cite something I’ve never seen, which is, there’s a federal listing of two things that we’re going to be using again and again, I think. First, it’s every agency that uses ALJs. Then, the other one, everyone with an inspection regime, and what they do to fund them. Where do the inspection regimes come from? They cite, and they say, “There’s nothing like this, except here.” I thought that was very powerful.

We got seven amicus briefs before the First Circuit. All of them followed the rule that they don’t do all the same thing. As I’ve laid out here, they did all kinds of different things. But all of it leads to one idea: The district court waited a while, came out with a very short sort of analysis, which didn’t do everything you’re supposed to do after Loper Bright.

We know that now because, No. 1: The four things that the Supreme Court said that you do, you did not do. We didn’t cabin what Congress was doing? He didn’t really look at the language compared to other language. He didn’t even dispute either the legislative history that we put there, and he didn’t dispute the cannons saying one thing excludes the other thing. None of it. I thought this was all to the good. They all put in reasons why the First Circuit should really take a hard look at this and not rubber-stamp it. I thank all of our amici in this case. I think everyone did just an absolutely fabulous job.

Host 1: Mark Chenoweth: This leaves me with two questions, John. Well, maybe a comment and a question. The comment is, the First Circuit has everything in front of it now that it needs in order to reach the right result here. There’s no doubt that with this sort of thorough treatment, there’s nothing about this that hasn’t been thoroughly examined. The court doesn’t have a lot to work – I mean, they can pick and choose what it think is the most persuasive. But it has all the ingredients here to get this correct. My question is, why is the Trump administration still fighting this? I mean, these are all the same people who were on this question before.

Host 2: John Vecchione: They all said we put in amicus briefs in Loper Bright and Relentless. They all said that.

Host 1: Mark Chenoweth: This isn’t new. The Trump administration has been vocally supportive of taking out Chevron.

Host 2: John Vecchione: Put it in EOs.

Host 1: Mark Chenoweth: Yet the rank-and-file at the DOJ is still fighting this case. I don’t understand it. It’s completely inexplicable to me.

Host 2: John Vecchione: Well, not the rank-and-file. I mean, Shumate’s on these briefs.

Host 1: Mark Chenoweth: That’s pretty high rank.

Host 2: John Vecchione: I’m pretty sure Dan Hanlon has been speaking to his higher-ups. I’ve talked to Dan. I do not think Dan is off on a rogue operation. Okay. I will say that about him. Who knows.

Host 1: Mark Chenoweth: Well, it just makes it all the more inexplicable. This should be an easy case for this administration.

Host 2: John Vecchione: Can I tell you what I think’s been going on? All right, here is complete speculation.

Host 1: Mark Chenoweth: Do we get a complete speculation?

[Crosstalk]

Host 2: John Vecchione: Exactly. Aaron can later on put a little sign on.

[Crosstalk]

Host 1: Mark Chenoweth: That’s right. A little sign flashing.

[Crosstalk]

Host 2: John Vecchione: Exactly. Complete speculation. What I’ve seen is that the administration wants to win on whether courts are going to do things or are they going to be allowed to fix it themselves in the sweet by-and-by. So, it’s basically an “only I can fix it” idea from the administration, whereby they do not want to be beholden to court orders. But then they’ll take it back and say the regulation will be really light. But for our clients and for the whole world, the whole thing about presidents is they don’t last forever.

Host 1: Mark Chenoweth: Look, I’d much rather have a decision from the First Circuit that gets the right answer here.

Host 2: John Vecchione: Correct. I think everyone would. The beauty of precedent is, other courts are going to follow it. They’re not necessarily going to follow an EO. Especially a withdrawn EO. That is not what they consider real authority. It’s very minor authority to them. But another court, particularly the First Circuit, and this is it, if a win in the First Circuit, because it really loved Chevron. It is a very pro-administrative law Wilsonian-type court, and the fact is that if they rule against this and say why, it’s going to have a powerful effect on other circuits.

I do want that better than just the agency saying, “Oh, well, we won’t do it anymore.” They’re not saying that. The other thing is, Loper Bright has stayed, right? They’re negotiating with Loper Bright, probably because of the name. Who knows why? But they’re stayed, and supposedly they’re doing something. I haven’t seen anything. So, that’s the raw speculation portion of our show.

Host 1: Mark Chenoweth: Well, maybe I should be happy they keep fighting because we’ll get this perhaps First Circuit decision.

Host 2: John Vecchione: That’s true. We got something to do.

[Crosstalk]

Host 1: Mark Chenoweth: For the sake of clients, I would like to see this go away.

Host 2: John Vecchione: Correct. All right, well, thank you very much. Again, thank you for our amici, and we’ll see you next time on Unwritten Law.

[End of Audio]

Duration: 21 minutes