Jack Fitzhenry (The Heritage Foundation) has posted By Land or By Sea, Challenges to Chevron Deference Will Not Cease (Cumberland Law Review, Forthcoming) on SSRN. Here is the abstract:
Is the Chevron doctrine poised to sink at last? A fleet of North Atlantic Fishermen hopes so. They challenge an interpretation of the Magnuson-Stevens Act that would allow the Fisheries Service to compel fishermen to pay for the federal monitors required aboard their boats. With the fishermen hoping to steer their case towards a Chevron-skeptical Supreme Court, this essay examines what role deference played in the DC Circuit's ruling against the fishermen, how the DC circuit's rhetorical framing of the statute in conjunction with Chevron's permissive presumption of delegation allowed the court's majority to imply an enormously consequential funding power, and how a less deferential approach would result in a different assessment of the statutory boundaries constraining the agency's interpretation.