Time to Toss the Administrative State Overboard

I f you’re a good driver, you follow the rules of the road, obeying the speed limit, coming to full stops at stop signs, and yielding to pedestrians in crosswalks. And that ought to be enough. But now imagine that the government mandated you carry a state trooper in your passenger seat, one assigned to ensure you obey every traffic law at all times — and one whose salary you were obligated to pay out of your own pocket.

Sound far-fetched? It’s not. Something similar is happening to me today.

I make my living fishing out of Cape May, N.J. While I don’t have a state trooper riding in my car, the federal government makes me carry a monitor on my vessel to observe my activities and report back to the government.

And yes, the government wants to force me to pay the monitor directly — at least when I fish for herring — at a cost of more than $700 a day. That comes on top of an obligation to provide the monitor with a bunk and meals during what can be days-long outings. At times, the monitor is the highest-paid person on the boat, outearning both the captain and the crew.

From where to what and how much we can fish, the fishing industry is highly regulated. Decreasing quotas over the years and high fuel prices have made turning a profit more challenging. An additional $700 a day for a fishing monitor adds to our burden. It may even run some fishing rigs out of business.

Monitoring and observing programs have been around for decades. But the National Oceanic and Atmospheric Administration (NOAA) took those programs to an unprecedented direction when it decided to make herring fishermen like me pay for government-mandated monitors out of our own pockets. The move is all the more galling because such a requirement is unlawful, imposed by federal bureaucrats without congressional authority.

Federal law gives NOAA the power to force me to carry a monitor on my boat, but it doesn’t give the agency the power to make me pay for the monitor. If Congress had passed a law that allowed NOAA to force herring fishermen to pay for monitors, we could at least use our voices and our votes to check the lawmakers who’d voted for it. But since in this instance a federal agency has tried to do the same thing through an unconstitutional, unilateral power grab, we’ve been forced to settle the issue in the courts.

Our case seemed like a slam dunk to me until I learned about “Chevron deference,” a legal doctrine established in a 1984 Supreme Court decision that effectively requires judges to cede their authority to interpret the law to federal bureaucrats. Judges are supposed to be a check on executive-branch abuses, but Chevron deference turns that upside down and transforms judges into rubber stamps for the whims of the federal bureaucracy.

In the federal appeals court, we lost our case by a two-to-one vote due to Chevron deference. The judge who sided with us described the government’s unfair actions best:

Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships. But until Congress does that, the Fisheries Service cannot.

We will not be deterred by our appellate-court loss. We’re now asking the U.S. Supreme Court to take up our case. And while the justices are at it, we hope they will get rid of Chevron deference, which unjustly ties the hands of federal judges and allows agencies to invent new law with little oversight, altogether.

My grandfather came to Cape May from Sweden in 1954. He started a family business that has survived three generations thanks to hard work and a willingness to take on the risks inherent to fishing. I honor his legacy today by supporting my family and feeding my neighbors just as he once did. I hope one day to pass the business on, allowing a fourth generation to do the same. But that will only be possible if the Supreme Court reins in the unconstitutional excesses of unelected federal bureaucrats by overruling Chevron.