An Otter Travesty by the Administrative State

In the 1980s, there was concern regarding the endangered sea otter population in California, so Congress passed a law by which a group of otters would be relocated to an island off the coast where they might flourish. Congress was concerned, however, that the relocated otters might cause problems for the fishermen who made their living in those same waters, and so the legislation mandated that the agency in charge set up a management zone which would prevent the otters from damaging the fisheries. It also gave legal protection to well‐​meaning fishermen who accidentally caused the death of a sea otter—an accident which would otherwise have grave consequences under the Endangered Species Act.


The otters flourished, the fisheries were protected, and everything worked well enough for the next few decades—until some environmental groups convinced the federal government to remove the fisheries’ protections. Congress had balanced the interests at stake when crafting the legislation, but now the feds considered that balance inconvenient. The agency rescinded the fisheries’ regulation, yet left the otters in their new home. A number of groups that depend on the fisheries were nonplussed by this change, and filed a lawsuit.


Under existing Supreme Court precedent, when agencies interpret the statutes for which they are responsible, courts grant them what is known as Chevron deference. This framework has two steps: first, the court asks whether the language of the statute is ambiguous; if it is, the court then asks whether the agency’s interpretation is anything but “arbitrary and capricious.” In other words, the agency doesn’t have to be right, but it can’t be crazy. But this framework is predicated on a text that the court can examine to judge the clarity or lack thereof. Here the statute says nothing about the circumstances whereby the fisheries protection can be rescinded; it says only that the agency must issue it.


The U.S. Court of Appeals for the Ninth Circuit didn’t care about the legal niceties. It declared that Chevron applies not only to unclear congressional commands, but to congressional silence. If the statute doesn’t say the agency can’t  do something, they court will defer to the agency’ judgement as long as it is a “reasonable policy choice.” The plaintiffs have now filed a petition asking the Supreme Court to take up their case and reject the extension of Chevron from mere ambiguity to silence.


The Cato Institute, joined by the Goldwater Institute and Cause of Action Institute, filed a brief in support of the petition. We argue that Congress alone has authority to authorize federal action. If there is no express grant of authority, then the agency is by definition not empowered to act. Allowing agencies to make up their own rules anytime Congress has neglected to preempt them would run afoul of the principles of “nondelegation,” a constitutional doctrine that holds that it is Congress that legislates, not the executive branch.


We urge the Court to take up California Sea Urchin Commission v. Combs and put a stop to this perfunctory rubber‐​stamping of the unaccountable administrative state.