The chief culprit undermining the Constitution’s separation of powers is a controversial doctrine known as “Chevron deference.” The doctrine was invented by the courts to give regulatory agencies wide latitude to make decisions. According to it, courts must defer to an agency’s interpretation of a statute unless the court finds it patently unreasonable (which they don’t do). When Chevron deference applies, agencies win nearly 80% of cases compared to 38% when courts don’t put a thumb on the scale in the government’s favor.
This case, California Sea Urchin Commission, exemplifies the dangers of courts abdicating their oversight role. In this case, a federal agency has declared itself to have the power to upend a compromise that Congress solidified by statute.
To help recover the California sea otter, Congress authorized the agency to establish a new population of otters in Southern California. But, recognizing the impacts the new population could have on the surrounding fishery, Congress imposed limits on that authority to protect a fishery and those whose livelihoods depend on it. Congress was remarkably clear that these protections “shall” and “must” be adopted and implemented as a condition of establishing the otter population. Nothing in the statute authorizes the agency to ignore these requirements.
Now, after having established a thriving otter population in Southern California, the agency has declared that it will no longer honor the fishery protections required by Congress. This decision was upheld in lower courts.
As a Tenth Circuit judge, Justice Gorsuch described Chevron deference as replacing “an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
On behalf of sea urchin and abalone divers, lobster trappers, and other fishermen, PLF asked the U.S. Supreme Court to review the case to enforce the separation of powers in the Constitution. The Supreme Court denied the petition on October 29, 2018.