In this episode of Unwritten Law, John Vecchione and Mark Chenoweth unpack the latest chapter in Relentless, Inc. v. Department of Commerce, a case that sits at the crossroads of administrative power, statutory interpretation, and life after Chevron deference.

The conversation focuses on whether federal agencies can require regulated parties — here, commercial fishermen — to pay for government-mandated monitors placed on their boats, even when Congress never clearly authorized those costs. John explains why a Rhode Island district court relied on a so-called “default norm” to uphold the rule, and why that reasoning conflicts with the Supreme Court’s rejection of Chevron in Loper Bright.

Mark and John walk through the Magnuson-Stevens Act, highlighting where Congress explicitly authorized industry-funded observers — and where it did not. They also explore the constitutional stakes: who decides who pays, why funding power belongs to Congress, and what happens when agencies effectively fund themselves through regulation.

The episode offers a clear look at how unelected bureaucrats expand power, why statutory text still matters, and what this case could mean for administrative law after Chevron.

John Vecchione: Welcome to Unwritten Law. This is John Vecchione here with Mark Chenowith. And it’s a little bit of a return call.

Mark Chenowith: Déjà vu.

John Vecchione: Déjà vu. We have filed a brief before the First Circuit in Relentless v. Commerce, which many of our listeners will be familiar with, that was a companion case in Loper Bright. It got rid of Chevron deference. And Loper Bright is stayed. And there has been no Circuit Court decision there. And we got a District Court decision. And the District Court, I think I’ve mentioned before –

Mark Chenowith: Yeah, from the District of Rhode Island.

John Vecchione: – granted summary judgment against our clients, relying on the overturned vacated decision of the First Circuit, the last time. So, we have appealed. We don’t think that’s the proper way to go on this. Now, as you all recall, I think this is the case whereby under the Magnuson-Stevens Act, the agencies – NOAA and Commerce and National Marine Fishery – say that they can put at sea monitors which are a –

Mark Chenowith: An at sea monitor, as our client says.

John Vecchione: Yeah, exactly, at sea monitor, on their boats, and have the fisherman pay for them up to $710.00 a day. And this despite the fact that the statute says there are observers, and the observers have always been understood for 30 years to be government-paid folks who make sure that you’re catching the right size fish and the bycatch, which is the fish you throw back, is all being done properly. They don’t do anything at all for the fishermen or the work of the boat at all. And so, the agencies have made up this paid-for monitor, paid for by the regulated party.

And what the District Court said was, “Well, I go and look what the First Circuit did the last time before they were overturned, and they say that, ya know, Congress kinda knew this was gonna happen, and it does say that they get to put these observers on the boats,” which no one disputes. That’s what the statute says. But it says they have to carry the observers. And he has used this statute to say, “Well, that means they can charge for ‘em.” The other thing he’s used is something that’s only appeared in these cases, in the fish cases that I had when I was a cause of action Gathel, and a concurring opinion by Judge Kayatta said there’s a default norm. And this default norm is that the regulated party pays for the regulation, the administrative cost. And that concurring opinion in this Gathel opinion cited nothing. What it said was is that hundreds of regulations follow this pattern. So, it’s a default norm. But as we say in this brief, Mark, that’s just following agency practice. That’s not making your own judgment as a court about it. It’s actually a monstrous Loper Bright violation where at least those guys were looking at one agency with supposedly some idea about what this regulation was and deferring to it. He’s deferring to all the agencies about whether the courts have a default norm.

Mark Chenowith: Well, and you’d hope for better judicial logic than everybody’s doing it. But even here, everybody’s not doing it. It’s not true that across the broad range of inspection regimes, for example, that the regulated party has to pay the costs of the salaries of the inspector.

John Vecchione: Well, that’s the second jump because even though there are cases, and I will have to admit this, that yes, if they tell you you have to have a net that’s so big so that fish go through it, you know, the fish you’re not allowed to catch go through it, well, you have to pay for that net. But then again, you own that net. You can sell it to the next guy, right? These observers – you don’t own them. They have a duty to the government, not to you.

Mark Chenowith: They don’t work for you.

John Vecchione: They don’t work for you. But you pay their contract, by gum.

Mark Chenowith: And the statute does say you have to provide them a berth on the boat.

John Vecchione: Right, right.

Mark Chenowith: You have to feed them if you’re out at sea for some length of time.

John Vecchione: Right. Those are the administrative costs Congress acknowledged that you would have to pay. And everyone knew it. It’s written down. Everyone read it at the time. And I will say this. We have found no record of any fishermen or company or anyone opposing that.

Mark Chenowith: Well, that’s the way it works when something’s not in the text of the regulation. You assume that it’s not part of what’s covered by it.

John Vecchione: Correct. And so, we’ve put in a brief, and we’ve gone through that this isn’t how you do statutory construction.

Mark Chenowith: Anymore.

John Vecchione: Yeah, anymore. But there’s not only no deference to the agencies, but you have to look at the statute. And the statute for foreign fishermen allows we make this clear, apples to apples. It says that if this fund that’s created by foreign fishermen runs out, that foreign fishermen have to contract with the observers. Doesn’t say anything like that for domestic folks. And then, there’s other sections up in the Northern Pacific – that’s Alaska – and in these fisheries where they know who all the fishermen are, and they divide the fish equally. It’s called blaps. Or if not equally, by a percentage. They, too, can split up the cost of these observers. But it's in the statute.

You can read it. You know whether it’s happening or not.

Mark Chenowith: And none of those three things apply to the Atlantic herring fishery. First of all, the North Atlantic is not the North Pacific. I think we can all agree on that.

John Vecchione: That’s true.

Mark Chenowith: Domestic vessels are not foreign vessels.

John Vecchione: Right.

Mark Chenowith: And these aren’t laps.

John Vecchione: Right.

Mark Chenowith: So, those are the only times when Congress has said that you can charge the vessel for the cost of the observer.

John Vecchione: That’s right. And so, we think we have a very good case here, but this default norm, which is only found, by the way, in cases I have been involved in. So, only in Gathel, only in –

Mark Chenowith: We call it the Vecchione curse.

Mark Chenowith: Default norm in scare quotes, too.

John Vecchione: Yeah, in scare quotes as well. So, I don’t think they like it. I don’t think they were going, “Hey, yeah, that’s right.” So, I’m hoping the First Circuit will not double down.

Mark Chenowith: They should take a hint.

John Vecchione: They should take a hint. And one of the problems here is we’re all deciding what to call the District Court Loper Bright and Relentless cases because the appellate cases are Relentless I, Loper Bright I. I said, “What do we call ‘em?” I said, “Well, we’ve gotta call up the Little Sisters of the Poor’s lawyers and find out what they’re doing because they must have three or four District Court cases, right?”

Mark Chenowith: That’s right. They’ve done this song and dance a few times.

John Vecchione: Right. So, in any event. So, we are going back up to the First Circuit, and I think we’re gonna have some amicus support. And, I hope, I hope, that the demise of Chevron by our clients who brought that about, it would be thin gruel if this were to stand after they’ve gone through everything to get rid of this Chevron deference. And remember what that means, what the original opinions mean. It meant that it was ambiguous and unclear, but they just went with the agency’s view of it. Well, if it’s ambiguous and unclear, and you’re charging people for something, that’s a congressional thing to do.

Congress makes the rules about who pays what. Who pays what is pretty much like the main function of Congress.

Mark Chenowith: Not only that, but one of the things you say in this brief that really I found compelling, John, is that look, when they all looked at this before with one exception we can get to, they said that the only way we could sort of get to the idea that the regulation allows this or that the statute allows this is by deferring to the agency under Chevon. Well, now that that option is off the table, the decision they reach oughta be clear. Now, you can’t do it because you can’t defer under Chevron anymore. And before you said that was the only way you can get there.

John Vecchione: That’s right.

Mark Chenowith: So, the fact that the District Court here, notwithstanding the fact that Chevron deference is off the table now, still found a way to decide that the statute allows them to charge the vessels is perplexing to me.

John Vecchione: Well, I think the District Court looked at – there’s only six guys on the First – six judges, they’re not all guys, but they’re all on the First Circuit. And I think – he didn’t even give a sorrel argument. I think he looked at it and said, “Are they gonna do anything different? I’m wondering.”

Mark Chenowith: I hope they will. I think they will.

John Vecchione: I hope they will as well.

Mark Chenowith: There’s some good judges on the First Circuit.

John Vecchione: No question.

Mark Chenowith: I don’t always agree with Judge Lynch, but she’s a sharp cookie.

John Vecchione: Correct. And I think it’s pretty compelling. So, we’ll see what happens. we’re back up there again. And the other thing is that I find interesting is that the government stayed Loper Bright so that they don’t get a decision out of the D.C. Circuit so they can negotiate some sort of settlement, but they are not staying this one. I don’t know if it’s ‘cause they got a District Court opinion, or they don’t care about the First Circuit, or it’s because the name is not the first name in the case.

Mark Chenowith: Well, that might be it, but I think it’s because they won at the District Court level and so it makes them timid about settling or something. But you have other good arguments in this brief, John. You talk about the penalty provision of the MSA – Magnuson-Stevens Act – not providing the power to assign industry-funded at sea monitors.

John Vecchione: Right. That’s the other thing. So, they say that because there’s a penalty provision that says that if you don’t pay a contracted observer when you’re required to, that means that Congress thought you could have contracted observers all the time. But there’s a couple of things going on there. First, some things in the statute have the government contracts with the observer, and you pay the government. So, it could mean that. And in others outside the Magnuson-Stevens Act, the Mammal Protection Act, the Endangered Species Act, they have observers who you have to contract with.

Mark Chenowith: Right. This penalty provision doesn’t just apply to the Atlantic herring fishery. This is a broad provision.

John Vecchione: Right. So, what Congress was putting in there, from our view, is that whenever some other part of our statutes say that you have to contract with an observer, we can penalize you for not paying those guys, right? But it doesn’t mean we say in all areas you can have these paid-for contractors.

Mark Chenowith: Right.

John Vecchione: And it’s very odd that a penalty provision would provide the power, right?

Mark Chenowith: For sure.

John Vecchione: So, they’re maybe saying this is evidence of it. But it’s not evidence of that because it’s equally, or I think more strongly, evidence that they knew there were observers out there who were gonna be contracted with, like in foreign fisheries. Then you gotta pay ‘em. And you can be penalized if you don’t. Makes perfect sense. And I think at this time, I will say, in this brief, I most clearly laid out how the statute works.

Mark Chenowith: How it hangs together.

John Vecchione: How it all hangs together, and how each brick of it makes sense. All right, these guys have to pay and contract with observers. In this other area, we shift the cost of the observers in a different manner. And then, if you don’t follow those, you could be penalized. That doesn’t mean that they said, “Now you can have these observers.” The other thing that has never been explained, and I think we hit it hard here, is why when Congress has allowed observers to be paid for by industry one way or another –

Mark Chenowith: Like in the North Pacific.

John Vecchione: – they’ve always capped it.

Mark Chenowith: Right. That’s right.

John Vecchione: They cap it. Here it’s 20%. It’s five times.

Mark Chenowith: I was gonna say, the cap is two or three percent or something like that.

John Vecchione: Yeah, it’s two, three, five percent of catch, I think, in the North Pacific. But the fact is, it’s way less than 20%. Way less.

Mark Chenowith: Yeah, Congress would never authorize this.

John Vecchione: So, yeah. And I think that the cost-benefit balance that Congress put in is the cost-benefit that the agencies have to follow, even if you buy the idea that they’re allowed to put these ASMs wherever they want, the cost of the ASMs has to be what Congress has said is reasonable, even if you thought that that was correct. It can’t just be anything.

Mark Chenowith: Plus, if they can put this cost on the industry, then that cuts Congress out of the equation of deciding the amount of monitoring that they want.

John Vecchione: Well, that’s it. They can fund themselves through the regulated party. They don’t need Congress. They become a machine that goes by itself. And what we put in here is, look, Air Marshals have to be on the various planes –

Mark Chenowith: I like that analogy.

John Vecchione: – and it is, our cause of action folk. Ryan Mulvey came up with that some time ago, and I like that. But also, now we have ICE, right? So, everyone sees ICE in the news. Well, if they capture you, do you have to pay their salary, right? There’s no…

Mark Chenowith: That’s like the old Soviet days when they would shoot you and then send the cost of the bullet to your family.

John Vecchione: Yes, exactly. So, all these regulatory people – the meat packers – I mean, meat inspection has been around for over 100 years under the Food and Drug Act and things. And no one has said without congressional authorization that that is chargeable to industry. And that one you could see Congress saying, “Let’s do this,” and if they did it, that would be okay. I mean, it would at least be legal, it would be constitutional. But if they don’t do it, Congress is not giving these agencies the power to just fund themselves. And the way you can see this is all the fights over the CFPB, right? Congress was very clear they wanted it to be funded without going back to Congress ‘cause they didn’t want Congress interfering.

Mark Chenowith: Well, and you also point out that the legislative history doesn’t support that idea.

John Vecchione: There’s not anything like it. So, I really think there are very good arguments here, and I hopefully will win in the First Circuit, and that’ll be the end of it. But if it’s not, you know.

Mark Chenowith: Well, at least you’ll get oral argument in the First Circuit, I predict, and you can give them an earful.

John Vecchione: I guess. Well, the other thing is, it always reminds me, and we put this in the brief, it’s the 250th anniversary of the Declaration of Independence. And one of the things there is they’re creating new officers to weed out our substance, right?

Mark Chenowith: Right, right.

John Vecchione: This is a new office. The observers were an unpaid government position, and the ASMs are industry-paid position. That’s different. And in the regulation, they have slightly different things that they do as well. But the fact is, it’s a big difference between if the government’s gonna pay for the person checking up on you and you’re gonna pay for it. That’s big. So, you’re right there in Boston Harbor where the First Circuit sits.

Mark Chenowith: Boston Harbor.

John Vecchione: Yeah, Boston Harbor. And the fishing boats are still there, there’s still some, not as many as there used to be, but there’s still some. So, I’m just hoping that that’ll be the end of it. Well, you’ve been listening to Unwritten Law, and we hope to see ya next time.

[End of Audio]

Duration: 17 minutes