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How the States Can Fight Administrative Tyranny

February 6, 2023

Should fishermen be forced to pay the salaries of government-mandated observers to ensure that the fishermen comply with federal regulations? When an obscure federal agency called the National Marine Fisheries Service tried to make them pony up, the fishermen sued because Congress never granted the agency authority to impose this extraordinary power. But a federal appellate court deferred to the government and upheld the agency’s actions, causing extraordinary financial hardship for small, often family-owned fishing businesses.

Is a July 4 fireworks display a form of oceanfront “development” because fireworks create smoke? The California Coastal Commission, a little-known state agency that regulates land use along California’s 800-mile coastline, prohibited a small town’s fireworks show for that reason. Judges then upheld the commission’s order, deferring to the agency’s head-scratching interpretation and bringing to an end a small town’s annual tourist attraction.

Both cases are examples of the kind of broad deference judges give to government regulators’ interpretation of the law when they make decisions that are later challenged in court. This problem is rampant at all levels of government across the country — and while the problem originated in the federal judiciary, it’s time for state legislators to take action to stop it.

Read the rest of the op-ed at National Review.

Jon Riches is the vice president for litigation at the Goldwater Institute.



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