Is this our most important legal brief ever?

July 24, 2023

Will you have a voice in our most important legal brief ever?

The Supreme Court has agreed to rule on the case Loper Bright Enterprises v. Raimondo. We want to file a brief in that case, and we need your help to do it.

This could be the most important brief we’ve ever filed. Here’s why…

To whom should the courts defer when making their rulings?

Pick one…

A.  Congress
B.  The President
C.  Bureaucrats
D.  The Constitution

If you chose the Constitution, then we agree. However…

For many decades the courts have asserted that democracy requires them to defer to the intentions of our elected leaders in Congress (and sometimes the White House). Alas…

This view obliterates the whole idea of “checks and balances” and the “separation of powers.” How can the courts be a check and a balance against Congress and the President by meekly deferring to them? But it gets worse…

The Chevron v. NRDC decision in 1984 went a big, bad step further. The ruling in that decision was that courts should defer to federal agency interpretations of “ambiguous” statutes!

In other words, Congress provides little or no guidance – they certainly don’t “Write the Laws” – and unelected bureaucrats get to figure out, by themselves, how to implement regulations. And when someone turns to the courts to “check” bureaucratic power, they find zero “balancing.” So…

What does a bureaucratic interpretation have to do with democracy?

Who elected the bureaucrats to decide and rule? The answer is no one. So why should the judicial branch defer to them?

Please notice how the Chevron decision relates to the concept behind Downsize DC’s “Write the Laws Act?” That legislation, which has been introduced in the Senate, stipulates that…

  • All legislative authority resides in Congress and cannot be delegated to Executive Branch agencies.
  • Any rule that will be imposed on the American people must first be read, debated, and passed by Congress.
  • No bureaucratic agency can impose rules on you without specific Congressional action.

Please also recall our recent reports showing that the Supreme Court has been moving in our direction on the issue of non-delegation of powers. This is exciting and important because…

Now we have a two-part question the Supreme Court must answer…

  1. Can the bureaucracy legally impose its own interpretation of legislation?
  2. Must or should the courts defer to those interpretations?

These are the issues at stake in the case Loper Bright Enterprises v. Raimondo. Specifically…

  • Congress passed legislation (the Magnuson-Stevens Act) dictating that fishing vessels must have someone on board to monitor that the fishers comply with fishing regulations.
  • But Congress did not specify who should pay the costs of such a monitor.

The National Marine Fisheries Services provided its interpretation of congressional intent, deciding that the fishers must pay the cost. Loper Bright Enterprises has challenged the authority of the NMFS to impose this interpretation absent specific congressional instructions.

The Supreme Court has decided to hear this case. At stake is the Chevron precedent.

Will the current court continue to agree that all courts must simply defer to bureaucratic interpretation, or will it strike a blow against this delegation of powers?

We believe there is a strong chance that the current Supreme Court will finally rule against the bureaucratic presumption of legislative power.

You can help them come to the right decision!

We want to file an amicus curiae brief in this case. There are powerful arguments that can be made…

  • The bureaucracy does not possess legislative power
  • Congress cannot delegate its legislative power to Executive Branch agencies
  • There is no democratic justification for courts to defer to bureaucratic opinions
  • Deference to bureaucratic opinion means that there is no equal protection of the law whenever a citizen mounts a legal challenge against the bureaucracy

Victory in this case would take a big step toward restoring the separation of powers and the checks and balances. This is a huge opportunity. Will you help us seize it? Please contribute to fund our amicus brief…

Fund the Brief

Supreme Court briefs are more expensive to deliver than other federal court briefs, and it’s not just because the stakes are higher. The Supremes have arcane printing requirements that add $1,200 on average to our costs. We are seeking at least one person who can give $1,000 or more, and five to ten more people who can contribute $100 or $200.

If tax deductibility is crucial to you, please donate through our partner organization, Downsize DC Foundation at the Zero Aggression Project page.

Our best shot at success is if everyone does what they can. All contributions add up and matter. But if you can start or increase your monthly pledge, we can plan ahead to do even more cases. Thank you, in advance.

Set your own agenda,

Jim Babka, President
Agenda Setters by Downsize DC

Today’s Action: Fund our legal brief in Loper Bright Enterprises v. Raimondo