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Except the law did contain the provision for this fee. The Magnuson–Stevens Fishery Conservation and Management Act included a “Necessary and Proper” clause that mirrors the Constitution’s, yet the Supreme Court decided that Congress’ ability under that clause doesn’t extend beyond itself. Despite the “History and Tradition” of this delegation, and despite the fact that such powers are literally written in the constitution itself.

It seems we are inching closer to a world where it would require a constitutional amendment to make traffic laws.

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>Except the law did contain the provision for this fee.

Incorrect. The law has provisions of this kind of fee for other types of fish, it was silent on herring which these boats were fishing for. Historically, the government had been funding these monitors until budget cuts made no longer possible. So, agency created a rule that since while law says monitors are required and we can't pay for it, the industry must now pay for it. Industry sued and here we are.

This “silent on” meme is clever, but it doesn’t quite work when the entire framework of regulatory law relied on the agencies to adapt to circumstances that everyone knows will change. In fact, your point strengthens that idea: why would anyone with any working knowledge of how regulations work expect the law to need changing to cover every type of fish when the overfishing situation is by definition dynamic? This is the purpose of the “necessary and appropriate” clause.

This isn’t even an example text vs. spirit. Congress wrote the law to cover this.

I don't know what you are even going on about. Necessary and Proper Clause does not say what you think it means. Necessary and Proper Clause in this case says Congress could legislate in this area and they did until budget cuts made it till they couldn't. Then Executive stepped in and said "Industry will pay for it", they sued and here we are. Just like IRS pays for tax auditors.

Congress could still step in here and just make it clear "All monitors shall be funded by fee set by Government." and party over. I'm not sure why Congress didn't do that originally with this law.

I don't know anything about the legal side of any of this convo but your "Incorrect" followed up by saying in apparent seriousness that there are laws for fish but not THIS PARTICULAR kind of fish made me actually laugh out loud.

Internet comments have the funniest versions of good and bad faith.

But that's entire debate in the case with SCOTUS and this is a ton of US law.

Section A/B/C says these kind of fish boats must be monitored, and fishing boats being monitored will pay for said monitors. Section D says these kinds of fishing boats shall be monitored as well but nothing about who pays for it.

You will find US law RIDDLED with these inconsistencies.

Do you have links to back up this argument? Anyone that actually cited the parts of th law and and explained how scotus got it wrong?

“ A split in decisions among federal appeals courts has set the stage for possibly overturning the Chevron deference.

In its ruling on the Cape May fishermen’s case, the First Circuit Court of Appeals in Washington, D.C., “decided that broad ‘necessary and appropriate’ language in the Magnuson-Stevens Act, which governs U.S. fisheries, augmented the agency’s regulatory power,” according to a narrative from the New Civil Liberties Alliance. “It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.”

https://www.nationalfisherman.com/national-international/sup...

Here’s the necessary and proper clause: https://constitution.congress.gov/browse/essay/artI-S8-C18-1....

It’s hard to square “well congress didn’t intend for them to have that power” when they quoted their own damn rules when they wrote the law.

But again, SCOTUS decided Congress doesn’t have that power.

When there is a split among Federal courts then the SCOTUS does often step in. The SCOTUS decision was that the interpretation of the First Circuit was wrong.

FWIW it says "the Congress shall have power..." not unelected bureaucrats of any stripe. In the event the issue about "unbiased experts" is raised, remember that the case is about "who should pay" not that there should or should not be monitors on the boat.

A "split decision" is not the same as a "split among Federal courts". A split decision just means the appeals court (one Federal district) ruled 2-1 rather than 3-0. A split among Federal courts means that different districts ruled in different ways.

Yes, that is correct; it's worded somewhat clumsily in the parent quote.

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