July 2023

July 31, 2023

Former Vice President Mike Pence’s political advocacy group is calling for a declaration of an invasion at the southern border as part of a legislative agenda to tackle the ongoing migrant crisis.

Advancing American Freedom, which was founded by the 2024 presidential candidate, released its agenda Monday to secure the border and end illegal immigration.

It calls for legislation to declare an “invasion” in response to the crisis that has seen record numbers of migrants hit the southern border since 2021.

“The United States Constitution declares that the federal government shall protect states from invasion. So long as the Biden administration refuses to do this job, Congress should officially declare an invasion so that states have the legal authority to secure the border for themselves,” the agenda states.

The use of the term “invasion” has grown in Republican circles in recent years to describe the crisis. Both former President Donald Trump and Florida Gov. Ron DeSantis have used the term as part of their presidential campaigns – with DeSantis promising to “stop the invasion” as part of his border strategy.

Meanwhile, Texas Gov. Greg Abbott has cited the “invasion” clause to authorize the return of illegal immigrants to the border with Mexico. That comes after there were more than 1.7 million migrant encounters at the southern border in FY 2021 and 2.4 million in FY 2022.

Democrats have taken aim at the use of the term, saying it is dangerous and encourages anti-immigrant sentiment.

“The invasion narrative some members push in this hearing room is bigoted, fact-free and dangerous,” Jerry Nadler, House Judiciary Committee ranking member, said at a hearing last week.

The policy proposals put forward by Pence’s group also call for Congress to explore a possible impeachment of Homeland Security Secretary Alejandro Mayorkas – something that has been called for by a number of House members.

DHS has responded to those calls by urging Congress to pass legislation to fix a “broken” immigration system and provide the funding requested by the Biden administration.

Separately, the AAF agenda calls for an end to “chain migration” – which allows for immigrants to sponsor relatives for green cards into the U.S. – and also for reforms to temporary visa programs like the controversial H-1B visa program. Critics have said such visas are used by companies to replace American workers with cheaper foreign nationals.

It also backs legislation already introduced in Congress – including the GOP House border security package passed earlier this year. Other bills supported are Kate’s Law, as well as measures to end the visa lottery, allow victims of illegal immigrant crime to sue sanctuary cities, reinstate the Migrant Protection Protocols, and continue border wall construction at state level.

“Congress needs to hold President Biden, Secretary Mayorkas, and the Department of Homeland Security accountable for their dangerous failings at the border, while also passing legislation that gives our border agents the resources and restored powers they need to do their jobs and enforce the law, AAF Executive Director Paul Teller said in a statement. “Advancing American Freedom believes that a country without a secure border and the rule of law isn’t a country at all and will continue to call for decisive action from Congress and the administration to keep our country safe.”

The policy rollout, which will be followed by a visit by AAF staff this week, is the latest indicator of how the border crisis is likely to continue to be a top political and 2024 issue – even as the Biden administration has touted a recent drop in numbers at the border since the end of Title 42 in May.

Republicans have blamed the crisis on the Biden administration, with 2024 candidates rallying around calls to restore policies implemented when Pence was vice president. The Biden administration has said it is expanding lawful pathways while punishing illegal immigration as part of its post-Title 42 strategy.

However, the recent torpedoing of its asylum rule after a left-wing legal challenge has raised new fears that a potential new surge could be coming soon.

Read more at FoxNews.com.

July 27, 2023

Our Founding Fathers created three co-equal branches of government: legislative, executive, and judicial. But today, they are all ruled by a de facto fourth branch: the administrative state.

The Supreme Court accidentally elevated the permanent bureaucracy into a fourth branch of government with its 1984 ruling in Chevron U.S.A. v. Natural Resources Defense Council. The case established a legal doctrine known as Chevron deference, in which federal courts defer to an administrative agency’s interpretation of ambiguous statutes as long as that interpretation is “reasonable.” Agencies quickly stretched congressional ambiguity to include congressional silence on a matter, allowing them to create laws out of thin air.

Over the years, Chevron deference has steadily empowered unelected, unaccountable bureaucrats, allowing them to legislate by fiat while undermining the role of Congress and distorting the original intent of America’s founders. At the same time, the courts themselves have abdicated their responsibility to provide scrutiny and oversight by automatically deferring to government agencies. Worst of all, because deference is given to agency interpretations rather than the actual text of the law, bureaucrats can completely alter the law’s meaning while bypassing the legislative process altogether.

For American citizens and businesses caught in the bureaucracy’s crosshairs, it can be nearly impossible even to comprehend the implications of arcane regulations or what their legal obligations may be. This lack of clarity not only hampers public participation in the regulatory process — it forces those involved to spend untold fortunes just to stay in compliance.

Having been gifted such sweeping power, it should come as no surprise that the administrative state has come to relish wielding it with impunity. With little fear of judicial reversal, government agencies stretch the boundaries of their authority with each passing day. The result is an ever-growing mountain of burdensome regulations that choke out economic growth, trample individual liberties, and stifle innovation.

It is time for this bureaucratic tyranny to end.

On several occasions, the Supreme Court has signaled openness to reexamining Chevron deference, but has yet to act. Advancing American Freedom, the advocacy organization founded by former Vice President Mike Pence, is encouraging the court to end Chevron deference and defang the administrative state.

AAF has filed an amicus brief with the Supreme Court in Loper Bright Enterprises et al. v. Gina Raimondo, a case in which a federal agency is absurdly attempting to place bureaucrats on fishing boats and make the owners pay for it. Our brief asks the court to make clear that congressional silence is not tantamount to relinquishing its legislative powers, and it is certainly not permission for a fill-in-the-blank overreach of its limited powers.

All told, AAF has brought together more than three dozen conservative organizations to file briefs in five Supreme Court cases arguing against Chevron deference in just the last year.

Our argument is simple: Congress alone has power of the purse. The Chevron doctrine, by allowing mischievous agencies to seek funds outside of the appropriations process, has exceeded its delegated powers, and we are asking the court to rein in the roving powers of unelected agencies usurping powers the Constitution grants to Congress alone.

But even if our entreaties to the Supreme Court fall short, there is still reason for hope. The House recently passed the Separation of Powers Restoration Act, which would repeal the doctrine of Chevron deference. Obviously, the legislation has little chance of passing while liberals control the Senate and the White House. But it should be a priority for the next conservative administration, along with legislation clarifying that all executive branch employees serve at the pleasure of the president.

Repealing Chevron deference is crucial to restoring the proper balance of power and upholding the principles that underpin our constitutional democracy. Our founders, in their enduring wisdom, created three branches of government. It’s time to get back to the system they created.

Marc Wheat is the general counsel for Advancing American Freedom.

Read more at WashingtonExaminer.com

July 24, 2023

FIRST ON THE DAILY SIGNAL—A conservative nonprofit launched by former Vice President Mike Pence is representing 11 conservative groups in supporting fishermen challenging the extensive power of the federal bureaucracy.

Advancing American Freedom, which plays no role in Pence’s 2024 presidential campaign, filed an amicus brief in the Supreme Court case Loper Bright Enterprises v. Raimondo, in which the court will revisit the longstanding precedent of Chevron deference. The group exclusively gave The Daily Signal a copy of the brief.

In Chevron v. National Resources Defense Council (1984), the Supreme Court held that whenever a law is ambiguous, a federal agency has the authority to interpret the scope and content of that ambiguity to achieve its ends, so long as the interpretation is “reasonable.”

This precedent granted executive agencies tremendous power to effectively rewrite the law, critics like Advancing American Freedom claim.

“The Left has used Chevron Deference to grow the administrative state and circumvent the approval of Congress to push their own agenda,” J. Marc Wheat, Advancing American Freedom’s general counsel, told The Daily Signal. “This is never what the Founders intended; unelected bureaucrats at various agencies do not have the power to legislate and we hope that the Supreme Court checks the Chevron Deference once and for all.”

In Loper Bright, fishermen are challenging the National Marine Fisheries Service—represented by Commerce Secretary Gina Raimondo. Federal law forces fishermen to carry inspectors aboard their vessels. A new Fisheries Service rule forces the fishermen to pay the salaries of these federal inspectors. The federal law requiring the inspections does not stipulate that fishermen must pay inspectors’ salaries, but the Fisheries Service insists that it has the power to demand payment under Chevron.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the Fisheries Service in August 2022, noting that the statute leaves “room for agency discretion.” Yet Judge Justin Walker dissented.

“Did Congress authorize the National Marine Fisheries Service to make herring fishermen in the Atlantic pay the wages of federal monitors who inspect them at sea?” he asks in his dissent. “Congress unambiguously did not.”

“Fishing is a hard way to earn a living,” he notes. While “Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships,” it has not done so. “Until Congress does that, the Fisheries Service cannot.”

Advancing American Freedom filed the amicus brief on Monday, representing itself and ten other conservative organizations. Eagle Forum, the National Center for Public Policy Research, Project 21 Black Leadership Network, Students for Life of America, and Young America’s Foundation joined the brief.

The brief begins by quoting the Declaration of Independence, noting that the Founders faulted King George III for erecting “New Offices… to harass” them “and eat out their substance.”

“Here, a New England fishing business is threatened with insolvency because a Federal agency seeks to swarm the industry with bureaucrats to consume the proceeds of some 20% of the daily catch,” the petitioners write. “Bureaucracies that have grown smug and fat through Chevron deference should reacquaint themselves with their country’s history.”

“This case presents the question of Chevron deference dead on without any need to tack, offering an excellent opportunity to abandon this sinking ship and to offer lower courts a more seaworthy vessel for judicial review,” the petitioners write.

Conservative Supreme Court justices have criticized Chevron deference in recent years. Justice Clarence Thomas wrote in his concurrence in Michigan v. EPA (2015) that Chevron “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch. Justice Neil Gorsuch wrote last fall that the court should acknowledge “that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning.”

Federal agencies have used Chevron deference to justify many controversial policies.

When the Supreme Court overturned Roe v. Wade last year, President Joe Biden directed his administration to “protect and expand access to abortion care.” Following the prompting of Health and Human Services Secretary Xavier Becerra, the Centers for Medicare and Medicaid Services issued guidance claiming to find an abortion mandate in a law that had never been interpreted as mandating abortion.

The federal agency interpreted the Emergency Medical Treatment and Labor Act, which requires health care providers to provide “stabilizing treatment” in certain circumstances, as mandating abortion. If a health care provider determines that abortion is necessary to protect the mother’s life, he or she must either perform the abortion or refer the woman to a medical facility that would perform it, regardless of the relevant state law.

Advancing American Freedom, representing 25 other conservative and pro-life groups, filed an amicus brief challenging this interpretation of the law. The brief argues that this interpretation “would expand the meaning of the 1986 statute to include abortions as a form of treatment and would illegally overwrite legitimate state laws designed to protect women and the unborn.”

As in Loper Bright, Advancing American Freedom urges the Supreme Court to overturn Chevron.

Read more at DailySignal.com.