Agencies Are Limited in Which Congressional Power They Can Exercise

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Can unelected federal bureaucrats force people to hire police to ensure that the law is complied with—even if Congress never said anything about hiring cops in the legislation that created the program? That is the core issue in Loper Bright Enterprises v. Raimondo, in which CEI, along with the Manhattan Institute, has now filed an amicus brief to the Supreme Court asking the Court to block such agency actions. 

For years, if not decades, Congress has not given the National Marine Fisheries Service (NMFS) sufficient funding to put observers on all boats to ensure compliance with their rules. In 2013, the New England Counsel of the NMFS proposed requiring the fishermen to pay for agency-selected monitors as a way to boost federal enforcement without additional enforcement funds from Congress. In 2018 it was formally proposed by NMFS. 

Despite receiving 90 percent opposition from the public, the agency decided to go forward with its proposal in 2020. The only problem is that Congress never authorized the agency to do this.  

Congress authorized NMFS to create fishery management plans that are “necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.” 16 U.S.C. § 1853(a)(1)(A). All of the rulemaking authority given to the agency was under Congress’s power to regulate the property owned by the federal government. 

But the agency, in requiring the fishermen to pay for agency monitors, decided that the fishermen had a funding duty to pay a third party for police services. That is an entirely different power of Congress in the Constitution. While Congress might be able to do that, it did not.  

The D.C. Circuit held that the “text makes clear the Service may direct vessels to carry at-sea monitors but leaves unanswered whether the Service must pay for those monitors or may require industry to bear the costs of at-sea monitoring mandated by a fishery management plan.”

Despite the lack of any congressional decision to issue a duty or to authorize the agency to do so, the D.C. Circuit allowed NMFS to use its rulemaking authority in implementing the Property Clause power of Congress to also exercise all the other powers of Congress. 

This was beyond the power of the agency. The Supreme Court should put a stop to it. Dozens of agencies have been given rulemaking authority without any express limit prohibiting them from requiring private parties to pay for agency-selected monitors. Can any of them require private parties to pay extra money to government-selected individuals to assist the government in enforcement? We think not. 

Only Congress has the power of the purse. It alone can choose to direct the money of the nation to public ends. Once Congress has selected to apply the money to a specific area, then the agency might be able to take over in executing the vision of Congress. But Congress, not the agency, must first make the decision. 

Even the Securities and Exchange Commission (SEC) is now getting in on this new bold claim, trying to require agency-selected independent monitors of greenhouse gas emissions in its new rulemaking. For decades, the SEC has requested from Congress the ability to “self-fund” issuing fees on businesses around the country to pay for SEC. But now it believes it can require businesses to pay for agency-selected monitors to determine if the greenhouse gas findings they submit to the SEC are accurate. The same kind of new-found power that the NMFS claims to have found in its statutory authority.  

These kinds of ploys to get around the congressional appropriation process need to stop. Only the Supreme Court can put an end to them once and for all. We hope the Supreme Court feels the same way; we should find out early next year.