Are NOAA and Other Regulatory Agencies above the Law?
Dr. Brian Rothschild, the prominent fisheries scientist, recently published an op-ed titled "Fish, the intent of Congress, and jobs" in the New Bedford, MA Standard-Times. He advocates removing the management of our nation's fisheries from NOAA, the regulatory agency currently in charge. This writer wholeheartedly agrees.
Recently, the cities of New Bedford, MA and Gloucester, MA sued the federal government and NOAA over inappropriate and potentially unlawful interpretations of the Magnuson-Stevens Act that supposedly governs fisheries management. The courts ruled against the cities. Dr. Rothschild says that the judge, Judge Rya Zobel, had little choice but to rule as she did. It is a feature (or a bug) of administrative law.
I looked up administrative law in Nolo's Plain-English Law Dictionary and found the following:
The procedures created by administrative agencies (governmental bodies), including rules, regulations, opinions, and orders. These procedures are often unique to each agency and are usually not found in statutes.
Judge Zobel ended up affirming what Congress never intended. Per Dr. Rothschild:
Congress never intended to generate a fisheries management system that wastes huge quantities of fish, disregards fishing communities, is inherently unfair and ignores science.
Dr. Rothschild has made a point of far-reaching impact in his opinion piece.
[W]hen the language of the law is ambiguous (as is typical for most laws), [regulatory] agency determinations are always right.
Think of this. The Congress passes a law that requires regulations to be written after the law is enacted. The regulatory agency has a free hand. The courts are powerless with respect to regulations promulgated by the regulatory agency.
Remember when Nancy Pelosi told us we wouldn't know what was in the Obamacare law until after it was passed? We still don't know all of it, but we see Kathleen Sebelius making new law (e.g., birth control without co-pay) almost daily as "agency determinations that are always right."
Scarier and scarier.
Mike Johnson is a concerned citizen, a small-government conservative, and a live-free-or-die resident of New Hampshire. E-mail firstname.lastname@example.org.