Under important American principles of government, the functions of government are divided. From the outset, the Founders recognized that consolidated government would be a threat to the newly minted Nation, founded and conceived in individual liberty. Their elegant solution was to divide government.

But modern agencies perceive separation of powers to be an inefficient nuisance. Increasingly, they use the general grants of rulemaking given to it by Congress to simply fill in the details on laws that it has enacted as an excuse to expand their powers, wholesale, without limits. What NMFS has done here under its authority to enact “necessary and appropriate” rules is not new, but it is part of a persistent threat to our system of governance. When courts fail to enforce those limits, Americans cannot count on the lines of government being neatly divided as the Founders intended.

This case is about something far greater than small fish. To remain free, the courts must not think they should “defer” to an agency’s interpretation of its own power. Agencies must not treat general statutory authority as an excuse to accrue power that Congress has not and, in many cases, could not delegate to them.

The Supreme Court should take this opportunity to cure legal recognition of the principle that courts are to defer to an agency’s interpretation. Also, the Supreme Court should place parameters on the meaning of language surrounding the “necessary and appropriate” terminology so as to avoid interpreting those words in a manner that would create a constitutional problem.