July 3, 2024
 
 
 

 What do Herring Fisherman have to do with Non Competes?  Agency interference.  Recently decided LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE, ET AL.  challenges the Chevron Doctrine, established law that provides deference to Agency discretion in interpretation of ambiguous law.  The basis of the suit are agency decisions resulting in fisherman bearing the cost of a mandated fishing "observer".   The Supreme Court decided the agency overreached by its invocation of the Chevron Doctrine to warrant requiring private companies pay for the "observer".

The Supreme Court, in its majority decision penned by Chief Justice John Roberts, explains how administrative agencies took power, and, why, in light of our Constitution, that power was misplaced and must be returned to the legislature, policed by the courts.  Practically speaking, the Loper decision will have tremendous and longstanding impact diminishing administrative agency authority, delegating back to the courts interpretation of the laws written by our legislators, and reinvigorating stare decisis (the doctrine governing judicial adherence to precedent).   One of the first agency actions I anticipate being successfully challenged includes the FTC non compete ban.  We shall see...

If you have not tried your hand at reading a Supreme Count decision, Lober would not be the one I would recommend trying your hand; was a bit loquacious, but very interesting, inclusive of a rendering of our development of agency authority, and our checks and balances.

Some call out language from the opinion -

"The view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken, for it rests on a profound misconception of the judicial role. It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation. That task does not suddenly become policymaking just because a court has an “agency to fall back on.” Kisor, 588 U. S., at 575 (opinion of the Court). Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. Indeed, the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. See The Federalist, No. 78, at 522–525. They were to construe the law with “[c]lear heads . . . and honest hearts,” not with an eye to policy preferences that had not made it into the statute. 1 Works of James Wilson 363 (J. Andrews ed. 1896)." Pg. 34. 

Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with “[u]nexplained inconsistency” being “at most . . . a reason for holding an interpretation to be . . . arbitrary and capricious.” Brand X, 545 U. S., at 981. But statutory ambiguity, as we have explained, is not a reliable indicator of actual delegation of discretionary authority to agencies. Chevron thus allows agencies to change course even when Congress has given them no power to do so. By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty."  See pg. 41.

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf 

Bottom line: "Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous."  See pg. 43.