Chevron deference unwound: How does the herring fishing decision relate to OSHA’s Covid shot orders?

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2023 U.S. House Oversight Committee hearing on Covid mandates

The U.S. Supreme Court has overturned what is known as the Chevron deference, which is a decades-old court decision that says if a law passed by Congress is not clear in some area, then federal agencies of the Executive Branch can interpretat of how to enforce law through regulation. Such broad powers have led to an expansion of the regulatory state.

The decision’s ramifications will go far and wide throughout many areas of life impacted by regulation, impacting decisions by the EPA and the ATF, for example.

Here’s one instance where this decision impacts 80 million workers: The Occupational Safety and Health Administration’s Covid-19 vaccine mandate of 2021.

The OSHA COVID-19 Emergency Temporary Standard on Vaccination and Testing required employers with 100 workers or more to establish, implement, and enforce a written mandatory vaccination policy for Covid-19 for their workplaces.

OSHA used the Chevron deference (also called Chevron doctrine) as the basis for its authority to mandate the experimental vaccine to these private-sector workers.

In a case brought by the National Federation of Independent Business and others that went to the Supreme Court, the Biden Administration argued that Covid-19 remained a “grave danger” in 2022, and that the OSH Act “clearly” grants OSHA the power to protect the workforce, and the agency can act on an emergency basis to do so — all based on Chevron deference.

The Supreme Court struck down that mandate on the 80 million workers in America. In the 6-3 decision, the justices blocked OSHA from its mandate, but allowed a separate vaccination mandate for health care workers at 76,000 federally funded facilities to stand. That upheld mandate came out of the Centers for Medicare and Medicaid Services rather than OSHA.

The ruling on OSHA related to Chevron deference, but that term didn’t specifically show up in the decision, which just discussed regulatory overreach.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the majority said in the opinion. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

This past week, however, the Supreme Court was very specific when it ruled that a federal agency cannot require fishing vessels to pay the federal government for agency-mandated observers to be on their boats while they are fishing.

The justices were clear in saying that the regulatory bureaucracy needs to step back into its cage created by Congress.

In the case that will impact so many federal agency regulations across the agencies, the plaintiffs were herring fishermen from Cape May, New Jersey. The Magnuson-Stevens Act gave the National Oceanic and Atmospheric Administration the authority to require federal monitors on commercial fishing boats to ensure that the fishermen adhere to the NOAA mandates.

But while the Magnuson-Stevens Act requires owners of certain classes of fishing boats to pay for their own monitors, the MSA never specified herring boats as one of those classes. That was added to the requirements by NOAA bureaucrats, not by Congress. And in this decision, the court took direct aim at the Chevron deference.

8 COMMENTS

  1. This is a great start on reigning in unelected bureaucrats from practicing petty tyranny based on “interpretation”. Stellar ruling. Let’s keep going and dismantle these federal government agencies down to their constitutional roles, if they exist or if not, dismantle them entirely.

  2. “……..if a law passed by Congress is not clear in some area, then federal agencies of the Executive Branch can interpretat of how to enforce law through regulation……..”
    The laws are clear. The lawyer class just does everything it can to obfuscate all they can. Make such games dangerous and painful, and the disease goes away.

  3. Any rulings not in favor of the federal agencies, is just ignored. The fed’s know citizen will still have to sue them and that what they count on. It will still be business as usually at the federal agencies.

  4. Although the current administration seeks every way possible to evade the Court’s rulings, nevertheless this is quite possibly the most significant ruling in a generation…hope it has the effect of reining in the unelected bureaucrats

  5. This is exactly why Trump turned the US Supreme Court around with his installation of three reasonable justices. The Supreme Court had gone far too Left. And with that, an adminstrative state full of brainwashed communists trying their best to govern the country. This IS the deep state. And Trump’s return in 2024 will further carve it up. And that needs to be completed soon, thanks to a little assistance by this court.
    Tremendous ruling for America.

  6. Separation of powers. Express subject matter delivered in the US Constitution. Someone must have personal jurisdiction and subject matter jurisdiction to wield any authority. Courts do NOT have fishing authority. They have authority over jots, tittles, margins, correct cites timely adequate service. Not daily authority over fishing limits etc.

  7. As important as this decision is, it will still require lawsuits to bring agencies into line. They will not willingly comply.

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