SLF Public Comment: National Marine Fisheries Service Vessel Speed Rule

The Framers well understood the dangers of consolidated government. That is why they devised an elegant solution—they divided it. When one branch of government assumes the powers of another, it threatens individual liberty. The Constitution awards lawmaking power to Congress and Congress alone. When agencies assume powers of breathtaking scope that would be unimaginable to the Congress that created them, they violate the constitutional order by consolidating power in one branch of government.

Americans do not live under a constitutional order that the founders would have recognized. NMFS’s actions are, unfortunately, not unusual. Most federal laws today do not emanate from Congress but from agencies who take narrow and vague authorizations and turn them into powers of great significance that effectively let agencies act with few safeguards. The problem is that Americans never get a chance to vote on these measures.

Vice President of Litigation for SLF Braden Boucek states,

SLF’s efforts to rein in NMFS is an important step to regaining the idea of a republican government run by the people’s elected representatives, not unelected bureaucrats. The judiciary serves as an important safeguard against the “fourth branch” of government. We stand ready to utilize that safeguard through legal action if NMFS continues to abuse its power.

SLF is also fighting back against efforts to require Herring fishermen pay to government monitors on board their boats. In Loper Bright v. Raimondo, SLF filed a merits brief with the United States Supreme Court urging it to scrap so-called Chevron agency deference under which courts are supposed to defer to NMFS’s interpretation of its own powers. SLF had previously joined in requests for the Supreme Court to accept this case. Such deference, SLF explained, poses significant separation of powers concerns because it would allow the agency to call its own fouls free from oversight. When Congress gives agencies authority to enact “appropriate” or “necessary” regulations, it expects that they will act modestly, filling in the details in minor ways to facilitate a power Congress has clearly given the agency.

Similarly, in Relentless v. Department of Commerce, SLF joined another request to the Supreme Court from fishermen who opposed this rule to accept the case and find that such vague grants of statutory authority could not authorize such sweeping actions without posing constitutional problems. The Supreme Court also agreed to hear this case.