Thomas A. Berry, Brent Skorup, and Alexander Xenos
The Constitution vests Congress—not federal agencies or their employees—with the power to decide when Americans must fund government programs. Indeed, the very first power of Congress listed in Article I, Section 8 of the Constitution is the power to “lay and collect Taxes, Duties, Imposts and Excises.” Yet regulators at a fisheries division within the Department of Commerce have claimed sweeping authority to collect money directly from Atlantic herring fishers. The agency requires these fishers not only to carry government compliance monitors aboard their small vessels at sea but also to pay the monitors’ salaries. These new costs, imposed in 2020 agency rulemaking, can be economically crippling. So the fishers sued, alleging violations of the law and the Constitution.
The lower courts originally ruled in favor of the government based on the doctrine of Chevron deference, which held that the government’s interpretation of the law must be accepted so long as it is reasonable. But in a landmark decision in 2024, the Supreme Court overruled the Chevron doctrine and sent the cases back down to be reevaluated by the lower courts without any deference to the government’s interpretation of the law.
After the district court nonetheless ruled in favor of the government again, the fishers appealed to the US Court of Appeals for the First Circuit. And Cato has now filed an amicus brief supporting the fishers.
To justify the agency’s supposed authority in imposing these costs, the government and the district court relied upon the broad and open-ended language in the Magnuson–Stevens Fishery Conservation and Management Act. That statute contains a catch-all provision authorizing the agency to impose fishery management regulations it deems “necessary and appropriate.”
Our brief explains why that language cannot bear the weight that the government places on it. The Constitution vests the power of the purse in Congress alone, and ambiguity and implication cannot sustain a statutory reading that undermines the separation of powers.
Here, the executive branch unilaterally shifted the funding of a regulatory program from the government to regulated parties. The Framers understood that the power to compel payments is uniquely susceptible to abuse. Article I not only grants Congress the exclusive authority to “lay and collect Taxes, Duties, Imposts and Excises,” but it also requires that revenue bills originate in the House of Representatives. Congress was designed to be closest to the people, and the Framers rejected allowing the executive branch to wield the revenue-raising power—lest it free itself from congressional oversight.
For those reasons, our brief urges the First Circuit to adopt a clear statement rule: When Congress has not spoken clearly, courts may not infer revenue-taking authority from silence or ambiguity. That rule reflects constitutional structure, not judicial preference. Treating a general regulatory provision as an implicit revenue statute would allow agencies to transform broad regulatory language into a license to fund existing and new programs.
The district court erred in holding that regulated parties can be forced to pay the salaries of their government monitors based on vague statutory language. At stake in Relentless, Inc. v. Department of Commerce is not merely the livelihood of these fishers but a fundamental question of constitutional structure. The First Circuit should reverse the district court and reject the agency’s attempts to exploit statutory ambiguity to seize the power of the purse from Congress.
