IJ Sets Sail on the Seas of Administrative Law

By Anthony Sanders

Imagine you wanted to work as a lawyer in a specific city. Once you got your law license, you would assume you could work for any employer in the city or even start your own practice.

Now imagine there is only one law firm in the city and it has to give its blessing before you can even get your license. Once it does, the only place you are permitted to work is at that same firm. What’s more, suppose this backward monopoly system is set—and maintained—by federal law.

Sound crazy? Welcome to the morass of federal laws that govern sea pilots, the professionals who navigate ships. A pilot takes over from a ship’s captain when the ship comes into port, applying his knowledge of local waterways to guide the vessel safely to harbor.

Captain Matthew Hight wanted to turn his 20 years of experience in the Merchant Marines—including eight years as a ship’s master—into a career as a pilot on the Great Lakes. He trained for two years with the St. Lawrence Seaway Pilots Association, piloting ships on Lake Ontario over 200 times and preparing to “buy in” to the Association’s membership at a cost of over $200,000.

But then, after Captain Hight had a disagreement with the Association’s president, the Association suddenly informed the U.S. Coast Guard that it recommended against granting Captain Hight a license. The Coast Guard automatically deferred to the Association, and the captain unexpectedly found himself marooned with no license, no job, and no way to go back to work.

Even if Captain Hight had wanted to go elsewhere for his license, he couldn’t have: The Coast Guard decrees that all pilots in that part of the Great Lakes must be trained by, and work for, the Association. What’s more, the Coast Guard has granted the Association veto power over who gets a license. The effect of these rules is to create a monopoly so strong that the Association is free to keep individuals it does not like out of work.

But private interests should not be able to wield government power to crush individual initiative and arbitrarily shut people out of their chosen occupations. This spring, IJ filed a federal lawsuit to vindicate Captain Hight’s right to earn a living and the Constitution’s guarantees of due process and freedom of association.

Captain Hight’s situation is also a dramatic display of—and opportunity to challenge—federal administrative overreach. For too long, courts have deferred to administrative agencies in interpreting those agencies’ own regulations and statutes, with minimal accountability or concern for individual rights. Even worse, agencies like the Coast Guard now delegate their own lawmaking power to private actors and impose requirements that force entrepreneurs to placate their competitors in the marketplace. This unconstitutional behavior must end, and this case is one of several challenges IJ is filing to hold the administrative state accountable.

Captain Hight has a long fight ahead of him before he’s back out on the water, but the Constitution is on his side. In recent years, the Supreme Court has grown more concerned with the excesses of administrative agencies and the delegation of lawmaking power. IJ is litigating to turn that concern into action, both by land and by sea.

Anthony Sanders is an IJ senior attorney.