Amicus Curiae Brief — California Sea Urchin Commission, et al., Petitioners v. Susan Combs, Acting Assistant Secretary for Fish, Wildlife, and Parks, et al.

Supreme Court briefJul 5, 2018

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Text

No. 17-1636

In the

Supreme Court of the United States

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

CALIFORNIA SEA URCHIN COMMISSION, ET AL.,

Petitioners,

SUSAN COMBS, ET AL.,

Respondents.

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

On Petition for Writ of Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

BRIEF AMICUS CURIAE OF THE BUCKEYE

INSTITUTE FOR PUBLIC POLICY SOLUTIONS IN

SUPPORT OF PETITIONERS

ɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

John J. Park, Jr.

Counsel of Record for

Amicus Curiae

Strickland Brockington

Lewis LLP

1170 Peachtree Street

NE, Suite 2200

Atlanta, GA 30309

678.347.2208

jjp@sbllaw.net

Robert Alt

President and CEO

The Buckeye Institute

for Public Policy

Solutions

88 East Broad Street

Suite 1120

Columbus, Ohio 43215

614.224.4422

QUESTIONS PRESENTED

In 1986, Congress authorized the U.S. Fish

and Wildlife Service to reintroduce sea otters into

Southern California waters, conditioned on several

mandatory protections of the surrounding fishery. In

addition to dictating that the Service “shall” adopt a

regulation that “must” contain the required fishery

protections, the statute also directs that the Service

“shall implement” the regulation. The statute says

nothing about the Service revoking these mandatory

protections.

Twenty-five years after accepting this

authority and reintroducing sea otters into these

waters, the Service repealed the regulation and

terminated the statute’s protections. Upholding that

decision, the Ninth Circuit held that the statute

“does not speak to the issue of termination at all.”

Because the statute is completely silent on the issue,

the Ninth Circuit concluded it must defer to the

agency’s claim that it has this power under Chevron,

U.S.A., Inc. v. National Resources Defense Council,

467 U.S. 387 (1984).

The questions presented are:

1) If a statute neither authorizes nor forbids

an agency action, does that statutory silence trigger

Chevron deference?

2) If yes, how should courts measure the

reasonableness of an agency’s interpretation where

that interpretation is not based on any statutory text

but instead on the absence of relevant text?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

iii

STATEMENT OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. Introduction

II. There is a federal leviathan and

Chevron enables its growth

III. Members of this Court have made

their discomfort with Chevron and other

judicial deference doctrines clear.

IV. The Ninth Circuit’s decision is a

paradigmatic example of judicial abdication in the

face of executive lawmaking.

V. Jettisoning Chevron will return

the judiciary to its proper role.

VI. Chevron is inconsistent

with Congress’s view of the judicial role.

CONCLUSION

iii

TABLE OF AUTHORITIES

Cases

Auer v. Robbins, 519 U.S. 452 (1997)

2,7

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410

(1945)

2,7

City of Arlington v. F.C.C., 569 U.S. 290

(2103)

passim

Chevron, U.S.A., Inc. v. National Resources Defense

Council, 467 U.S. 387 (1984)

passim

Crowell v. Benson, 285 U.S. 22 (1932)

Dept. of Transportation v. Ass’n of American

Railroads, 135 S.Ct, 1225 (2015)

E.I. Du Pont de Nemours & Co. v. Smiley, 585 U.S. ___,

2018 WL 3148557 (2018)

Free Enterprise Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477 (2010)

Garco Construction, Inc. v. Speer, No. 17-225, in the

Supreme Court of the United States

Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (10th

Cir. 2016)

Humphrey’s Executor v. United States, 295 U.S. 602

(1935)

Marbury v. Madison, 1 Cranch 137 (1804)

3,14

Michigan v. Environmental Protection Agency, 135 S.

Ct. 2699 (2015)

11,14,15

National Cable & Telecommunications Ass’n v.

Brand X Internet Services, 545 U.S. (2005) 10

Pereira v. Sessions, 585 U.S. ___, 2018 WL 3058276

(2018)

passim

Schechter Poultry Corp. v. United States, 295 U.S.

495 (1935)

Talk America, Inc. v. Michigan Bell Telephone Co.,

564 U.S. 50 (2011)

Constitution

U.S Const. Art. I, § 1

U.S. Const. Art. II, § 1, cl. 1

U.S. Const. Art. III, § 1

Statutes

5 U.S.C. § 706

5 U.S.C. § 706(2)(A)

16 U.S.C. § 1538(a)(1)(B)

16 U.S.C. § 1540

16 U.S.C. § 1540 (b)

Public Law 99-625

11,13

Rules

37.2

37.6

Other Authorities

52 Fed. Reg. 29,754 (Aug. 11, 1987)

77 Fed. Reg. 75,266 (Dec. 19, 2012)

Brett M. Kavanaugh, Fixing Statutory Interpretation

129 Harv. L. Rev. 2118 (Jun. 2016)

Carlos Bea, Who Should Interpret Our Statutes and

How It Affects Our Separation of Powers (Feb.

1, 2016) available at http://report.heritage

.org/hl1272

2,6

Cass R. Sunstein, Nondelegation Canons, 67 U. Chi.

L. Rev. 315 (2000)

Charles J. Cooper, Confronting the Administrative

State, 36 National Affairs, 96 (Fall 2015)

Cass R. Sunstein, Beyond Marbury: The Executive’s

Power to Say What the Law Is, 115 Yale L. J.

2580 (2006)

Hearing on “Examining the Federal Regulatory

System to Improve Accountability,

Transparency, and Integrity” Before

the Senate Comm. On the Judiciary, 114th

Cong. 1 (2015)

Jack

M. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has Failed

and Why It Can and Should Be Overruled, 42

Conn. L. Rev. 779 (2010)

Joseph Story Commentaries on the Constitution of

the United States vii (1833)

Karen Kerrigan and Ray Keating, Regulation and

the ‘Fourth Branch of Government’ at 1

(2014),http://centerforregulatorysolutions.org/

wpcontent/uploads/2014/04/FourthBranchWhi

tePaper.pdf

Kent Barnett & Christopher J. Walker, Chevron in

the Circuit Courts, 116 Mich. L. Rev. 1

(2017)

Thomas W. Merrill, The Story of Chevron: The

Making of an Accidental Landmark, 66

Admin. L. Rev. 253 (2014)

Philip Hamburger, Chevron Bias, 84 Geo. Wash. L.

Rev. 1187 (2016)

Robert Gordon, Take it Back: Extending the

Endangered Species Act’s “Take” Prohibition

to All Threatened Animals Is Bad for

Conservation (Heritage Foundation Dec. 7,

2017),at9.file:///F:/My%20Documents/Take%20

It%20Back_%20Extending%20the%20Endang

ered%20Species%20Act%E2%80%99s%20%E2

%80%9CTake%E2%80%9D%20Prohibition%2

0to%20All%20Threatened%20Animals%20Is%

20Bad%20for%20Conservation%20_%20The%

20Heritage%20Foundation.html

The Federalist No. 47 (James Madison) (J. Cooke ed.

1961)

vii

Woodrow Wilson, The Study of Administration, 2

Pol. Sci. Q. 198 (1887)

STATEMENT OF AMICUS CURIAE

This amicus brief is submitted by the Buckeye

Institute for Public Policy Solutions (the “Buckeye

Institute”). 1 The Buckeye Institute was founded in

1989 as an independent research and educational

institution—a think tank—to formulate and promote

free-market solutions for Ohio’s most pressing public

policy problems. The staff at the Buckeye Institute

accomplishes the organization’s mission by

performing timely and reliable research on key

issues, compiling and synthesizing data, formulating

free-market policies, and marketing those public

policy solutions for implementation in Ohio and

replication across the country. The Buckeye Institute

is located directly across from the Ohio Statehouse

on Capitol Square in Columbus, where it assists

executive and legislative branch policymakers by

providing ideas, research, and data to enable the

lawmakers’ effectiveness in advocating free-market

public policy solutions. The Buckeye Institute is a

non-partisan, nonprofit, tax-exempt organization, as

defined by I.R.C. § 501(c)(3).

1 Pursuant to Rule 37.2, all parties were notified of the Buckeye

Institute’s intention to file this brief at least 10 days prior to its

filing. All parties consented to the filing.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than Amicus Curiae or their counsel made a monetary

contribution to the brief’s preparation or submission.

Through its Legal Center, the Buckeye

Institute works to limit the degree to which

doctrines of judicial deference to the actions of

federal administrative agencies undermine the

constitutional order. The Buckeye Institute joined an

amicus brief in Garco Construction, Inc. v. Speer, No.

17-225, in the Supreme Court of the United States,

in which the Petitioner and its supporting amici

urged this Court to overrule Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410 (1945), and Auer v.

Robbins, 519 U.S. 452 (1997). Those decisions call for

judicial deference to an executive agency’s

interpretation of its own ambiguous regulations.

This case presents a related challenge to

another judicial deference doctrine, that of Chevron

U.S.A., Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984). That decision calls for judicial

deference when a federal agency interprets an

ambiguous law enacted by Congress. Thirty years of

experience with Chevron have revealed its flaws, and

Buckeye will show how jettisoning that doctrine will

return the judiciary to its proper role in our

governmental scheme.

SUMMARY OF ARGUMENT

The time has come to “junk Chevron.” See

Carlos Bea, Who Should Interpret Our Statutes and

How It Affects Our Separation of Powers (Feb. 1,

2016)

available

http://report.heritage.org/hl1272

(“Who

Should

Interpret Our Statutes”). Chevron has “permit[ted]

executive bureaucracies to swallow huge amounts of

core judicial and legislative power and concentrate

federal power in a way that seems more than a little

difficult to square with the Constitution of the

framers’ design.” Gutierrez-Brizuela v. Lynch, 834 F.

3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J.,

concurring). Overruling Chevron would return the

judiciary to is constitutional role, which is

“emphatically . . . to say what the law is.” Marbury v.

Madison, 1 Cranch 137, 177 (1804).

More specifically, as the Buckeye Institute

will make clear in this brief, there are at least four

compelling reasons to overrule Chevron. First, it is

inconsistent with the constitutional role of the

Judiciary. Second, it enables the growth of the

administrative state, which now extends its

tentacles into much of the nation’s life and work.

Third, in application, Chevron institutionalizes a

bias in favor of federal agencies into the courts,

marginalizing judicial independence and denying

litigants their entitlement to due process of law

under the Fifth Amendment. Fourth, it is

inconsistent with the Administrative Procedures Act.

ARGUMENT

I. Introduction

In Chevron, the Court established a two-step

test for evaluating the statutory interpretations

made by federal administrative agencies. The

reviewing court first looks to see whether the

statutory language is clear. “If the intent of Congress

is clear, that is the end of the matter; for the court,

as well as the agency, must give effect to the

unambiguously expressed intent of Congress” 467

U.S. at 842-43. If, however, the statute is

ambiguous, the reviewing court considers whether

the agency has made a “permissible construction of

the statute.” Id. at 843. In so doing, the court asks

only whether a “reasonable” interpreter might have

adopted that construction. Id. at 843 n. 11, 844.

Thomas Merrill notes that the Chevron

decision “marks a significant shift in the justification

for giving deference to agency interpretations of

law.” Thomas W. Merrill, The Story of Chevron: The

Making of an Accidental Landmark, 66 Admin. L.

Rev. 253, 255 (2014) (“The Story of Chevron”). Put

simply, it’s not just the judiciary that gets to say

what the law is.

Thirty years later, the flaws in the Chevron

Court’s reasoning have become clear. It is time to

overrule Chevron.

II. There is a federal leviathan and

Chevron enables its growth.

As this Court has recognized, “the modern

administrative state “wields vast power and touches

almost every aspect of daily life.” Free Enterprise

Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

477, 499 (2010). “It is fitting that we refer to the

administrative state as a ‘state,’ for it has become a

sovereign power unto itself, an imperium in imperio

regulating virtually every dimension of our lives.”

Charles J. Cooper, Confronting the Administrative

State, 36 National Affairs, 96, 97 (Fall 2015)

(“Confronting the Administrative State”).

“The Framers could hardly have envisioned

today’s ‘vast and varied bureaucracy’ and the

authority administrative agencies now hold over our

economic, social, and political activities.” City of

Arlington v. F.C.C., 569 U.S. 290, 313 (2013)

(Roberts, C.J., dissenting). 2 There are now “over 430

departments, agencies, and sub-agencies in the

federal government.” Hearing on “Examining the

Federal

Regulatory

System

Improve

Accountability, Transparency, and Integrity” Before

the Senate Comm. On the Judiciary, 114th Cong. 1

(2015) (statement of Senator Grassley). With the

growth in the number of federal agencies comes a

growth in the number of pages in the Federal

from 4,369 pages in 1993, to 49,813 pages in 2003, to

81,883 pages in 2012 3 – an increase of nearly 2,000%

in just 19 years. By way of another example, from

2013 to 2014, “the federal bureaucracy finalized over

7,000

regulations.”

Examining

the

Federal

Regulatory System. When one compares those 7,000

regulations to the 300 statutes that Congress

enacted during those same years, the growing power

of the federal bureaucracy is undeniable. Id.

The number of official regulations tells only

part of the story. As this Court is well aware, federal

agencies issue, interpret, and enforce the rules that

govern our lives. “[A]s a practical matter they

exercise legislative power, by promulgating

regulations with the force of law; executive power, by

Chief Justice Roberts was joined in his dissent by Justices

Kennedy and Alito.

3 Karen Kerrigan and Ray Keating, Regulation and the ‘Fourth

Branch

Government’

(2014),

http://centerforregulatorysolutions.org/wpcontent/uploads/2014/04/FourthBranchWhitePaper.pdf.

policing compliance with those regulations; and

judicial power, by adjudicating enforcement actions

and imposing sanctions on those found to have

violated their rules.” City of Arlington, 569 U.S. at

312-13 (Roberts, C.J., dissenting); see also id.

(“C]itizens confronting thousands of pages of

regulations . . . can perhaps be excused for thinking

that it is the agency really doing the legislating.”).

This melding of governmental roles cannot be

squared with the constitutional architecture.

“The Constitution does not vest the Federal

Government with an undifferentiated ‘governmental

power.’” Dept. of Transportation v. Ass’n of American

Railroads, 135 S. Ct. 1225, 1241 (2015) (Thomas, J.,

concurring in the judgment). Rather, it vests “[a]ll

legislative powers herein granted” in Congress,

“[t]he executive power” in the President, and “[t]he

judicial power of the United States” in the federal

judiciary. U.S. Const. Art. I, §1, Art. II §1, cl. 1, Art.

III § 1, respectively. “These grants are exclusive”

such that “[w]hen the government is called upon to

perform a function that requires an exercise of

legislative, executive, or judicial power, only the

vested recipient of that power can perform it.” Ass’n

of American Railroads, 135 S. Ct. at 1241 (Thomas,

J., concurring in the judgment).

More to the point, one branch cannot delegate

powers to another that it does not have. Judge Bea

explains that “even assuming that Congress may

delegate its own executive power to the Executive, it

has no constitutional authority to delegate judicial

power, of which it has none.” Carlos Bea, Who

Should Interpret Our Statutes and How It Affects

Our Separation of Powers (Heritage Foundation,

Feb.

2016)

available

http://report.heritage.org/hl1272

(“Who

Should

Interpret Our Statutes”).

The separation of governmental powers rests

on a sound foundation. Indeed, as Justice Story

observed, “It has been deemed a maxim of vital

importance that these powers should forever be kept

separate and distinct.” 2 Joseph Story Commentaries

on the Constitution of the United States vii (1833)

(“Story”). That is because “[t]he accumulation of all

powers, legislative, executive, and judiciary, in the

same hands, whether of one, a few, or many, and

whether hereditary, self-appointed, or elective, may

justly be pronounced the very definition of tyranny.”

The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J.

Madison); see also 2 Story vii (“In absolute

governments, the whole executive, legislative, and

judicial powers are, at least in their final result,

exclusively confined to a single individual; and such

a form of government is denominated a despotism,

as the whole sovereignty of the state is vested in

him.”).

Agency exercises of legislative authority often

unchecked

because

their

regulatory

interpretations often receive judicial deference under

Chevron and related doctrines. 4 Such deference runs

4 See Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410 (1945). The constitutional

grounding of these doctrines has also been criticized. See, e.g.,

E.I. Du Pont de Nemours & Co. v. Smiley, 585 U.S. ___, 2018

WL 3148557 (2018) (Gorsuch, J., dissenting from the denial of

certiorari); Talk America, Inc. v. Michigan Bell Telephone Co.,

564 U.S. 50, 67-69 (2011) (Scalia, J., concurring)

afoul of the Constitution because it is inconsistent

with separation of powers principles.

In Confronting the Administrative State,

Charles Cooper shows how this Court’s decisions

“gutted” Articles I, II, and III of the Constitution. Id.

at 101. In Humphrey’s Executor v. United States, 295

U.S. 602 (1935), the Court held that Congress can

limit the President’s power to remove executive

branch officials performing quasi-legislative and

quasi-judicial functions. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935), “was the last

gasp of the so-called ‘non-delegation doctrine.’

Confronting the Administrative State at 101. Indeed,

“[s]ince 1935, the Supreme Court has not struck

down an act of Congress on nondelegation grounds,

notwithstanding the existence of a number of

plausible

occasions.”

Cass

Sunstein,

Nondelegation Canons, 67 U. Chi. L. Rev. 315, 315

(2000). In Crowell v. Benson, 285 U.S. 22 (1932), the

Court sanctioned agency fact-finding by likening

agencies to juries, in what has been characterized as

a “flawed analogy.” Id. at 102. The effect of these

decisions was to “unite[] the judicial, legislative, and

executive powers in the ‘expert’ hands of the

administrative state.” Id. at 101.

Cooper explains, “What emerged from this

period was an implicit bargain: The Court would

permit Congress to delegate—and the administrative

state to exercise—legislative, executive, and judicial

power, but it would review administrative exercises

of such power to prevent lawlessness and abuse.” Id.

at 103.

But, the Court “reneged” on the deal in

Chevron, calling for judicial deference when agencies

interpret ambiguous statutes. The effect of Chevron

and the related doctrines calling for judicial

deference to agency actions is to put “a powerful

weapon in an agency’s regulatory arsenal.” City of

Arlington, 569 U.S. at 314 (Roberts, C.J.,

dissenting). “Congressional delegations to agencies

are often ambiguous—expressing a mood rather

than a message.” Id. (Internal quotation omitted).

“We can now see that Chevron is properly

understood as a kind of counter-Marbury for the

administrative state. Indeed, it suggests that in the

face of ambiguity, it is emphatically the province of

the executive to say what the law is.” Cass R.

Sunstein, Beyond Marbury: The Executive’s Power to

Say What the Law Is, 115 Yale L. J. 2580, 2589

(2006). But, this Court said long ago that it is

“emphatically the province and duty of the judiciary

to sat what the law is.” Marbury, 1 Cranch at 177.

More than that, Chevron deference introduces

a “systemic judicial bias” in favor of the government.

Philip Hamburger, Chevron Bias, 84 Geo. Wash. L.

Rev. 1187, 1188 (2016). As Hamburger notes, “[T]he

bias arises from institutional precedent rather than

individual prejudice, but this makes the bias

systematic and the Fifth Amendment due process

problem especially serious. Id. He explains, “Under

Article III, judges have a duty to exercise

independent and unbiased judgment, and under the

Fifth Amendment’s guarantee of due process, they

are barred at the very least from engaging in

systematic bias. Id. at 1212. Indeed, when Chevron

deference applies, the odds that a court will side

with the agency are 77.4%, well in excess of the 38%

that follows when courts engage in de novo review.

See Kent Barnett & Christopher J. Walker, Chevron

in the Circuit Courts, 116 Mich. L. Rev. 1, 6-8 (2017).

Put simply, Chevron enables the growth of the

administrative state to the detriment of separationof-powers principles. In City of Arlington, for

example, the Court held that courts should defer to

an agency’s determination of its own jurisdiction. In

National Cable & Telecommunications Ass’n v.

Brand X Internet Services, 545 U.S. (2005), the Court

held that an agency’s interpretation of an ambiguous

statute prevails over a court’s prior interpretation of

that statute. If brakes are to be put on to halt the

inexorable growth of the administrative state,

Chevron will need to be overruled.

III. Members of this Court have made their

discomfort with Chevron and other judicial

deference doctrines clear.

In this Court’s most recent term, Justice

Kennedy expressed his “concern with the way in

which the Court’s opinion in Chevron . . . has come

to be understood and applied.” Pereira v. Sessions,

585 U.S. ___, 2018 WL 3058276 at * 14 (2018)

(Kennedy, J., concurring). He observed that, by

“engag[ing] in cursory analysis” of congressional

intent, “some Courts of Appeals” displayed a

“reflextive deference” that “suggests an abdication of

the Judiciary’s proper role in interpreting federal

statutes.” Id. Justice Kennedy suggested, “[I]t seems

necessary and appropriate to reconsider, in an

appropriate case, the premises that underlie

Chevron and how courts have implemented that

decision.” Id.

In the same case, Justice Alito characterized

Chevron as “an important, once celebrated, and now

increasingly maligned precedent.” Pereira, 2018 WL

3058276 at *15 (Alito, J., dissenting).

In addition, in two opinions, Justice Thomas

has “explained how the basic principles of our

Constitution’s separation of powers are incompatible

with the system of bureaucratic rule” that now

prevails. Confronting the Administrative State at 96.

In Perez v. Mortgage Bankers, he pointed out,

“Seminole Rock raises two related constitutional

concerns. It represents a transfer of judicial power to

the Executive Branch, and it amounts to an erosion

of the judicial obligation to serve as a ‘check’ on the

political branches.” 135 S. Ct. at 1217 (Thomas, J.,

concurring). In the same way, Justice Thomas

pointed out how Chevron deference is inconsistent

with the judicial role in his concurring opinion in

Michigan v. Environmental Protection Agency, 135 S.

Ct. 2699, 2712-14 (2015) (Thomas, J., concurring).

IV. The Ninth Circuit’s decision is a

paradigmatic example of judicial abdication in

the face of executive lawmaking.

In Public Law 99-625, Congress sought to

accommodate the interests of both the endangered

sea otters and the Petitioners, who harvest sea

urchins and engage in other fishing activities. In

pertinent part, Congress allowed the Fish & Wildlife

Service to come up with a plan to relocate a

population of sea otters from their existing range

and manage it with an idea to generate a population

of sea otters in Southern California waters. Pub. L.

99-625, § 1(b).

That said, Congress also sought to “prevent, to

the maximum extent feasible, conflict with other

fishery resources within the management zone by

the experimental population.” Pub. L. 99-625, §

1(b)(4)(B). The threat comes from the fact that sea

otters consume 33% of their body weight in shellfish

and other seafood every day.

The fisheries received further specific

protection from the environmental laws: “[E]xcept

that any incidental taking of such a member during

the course of an otherwise lawful activity within the

management zone, may not be treated as a violation

of the Act or the Marine Mammal Protection Act of

1972.” Id. § (c)(2). Under the Endangered Species Act

and the Marine Mammal Protection Act, a “take”

might result from any actions that “harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or

collect or attempt to engage in any such conduct.” 16

U.S.C. §§ 1538(a)(1)(B), 1540. Absent such

protection, those found guilty of a prohibited take

could “be fined not more than $50,000 or imprisoned

for not more than a year, or both.” 5 16 U.S.C. § 1540

(b).

See Robert Gordon, Take it Back: Extending the Endangered

Species Act’s “Take” Prohibition to All Threatened Animals Is

Bad for Conservation (Heritage Foundation Dec. 7, 2017), at 9.

file:///F:/My%20Documents/Take%20It%20Back_%20Extending

%20the%20Endangered%20Species%20Act%E2%80%99s%20%

E2%80%9CTake%E2%80%9D%20Prohibition%20to%20All%20

In 1987, as Petitioners note, the Service

adopted a regulation that included the statutory

protections. 52 Fed. Reg. 29,754 (Aug. 11, 1987). It

did assert the power to revoke the protections if the

program did not work. 52 Fed. Reg. at 29, 772. That

administrative reservation of a right to revoke

statutory protections came to fruition in 2012. 77

Fed. Reg. 75,266, (Dec. 19, 2012).

By reserving an extra-statutory right to

revoke statutory protections and exercising that

right, the Service has engaged in rewriting Public

Law 99-625. The Service did not merely take on a

legislative role, it upset a carefully-crated

congressional compromise. Petitioners note that

Public Law 99-625 is the “compromise” product of

“[b]ringing every stakeholder to the table—including

the agency, fishermen, and environmental groups.”

Pet. at 8-9. Federal agencies should not rewrite

compromise legislation to favor their own and their

friends’ interests.

Likewise, by allowing the agency to fill what it

erroneously saw as congressional silence, the Ninth

Circuit “abdicat[ed ]the Judiciary’s proper role in

interpreting federal statutes.” Pereira, 2018 WL

3058276 at *14 (Kennedy, J., concurring).

Threatened%20Animals%20Is%20Bad%20for%20Conservation

%20_%20The%20Heritage%20Foundation.html. As Gordon

explains, the Endangered Species Act is a strict liability

statute, such that “[a] farmer on his tractor could unwittingly

plow a snake’s burrow or could put his cow in a pasture where

it steps on salamanders in a seasonal puddle.” Id. The farmer is

potentially liable even if he does not intend to hit the snake and

the rancher is likewise potentially liable even if he did not

intend that his cow would step on a salamander.

V. Jettisoning Chevron will return the

judiciary to its proper role.

For the reasons stated above, this case

presents a case in which Chevron deference is at

odds with the constitutional structure. This Court

should take the opportunity this case presents to

“junk” Chevron.

“The proper rules for interpreting statutes

and determining agency jurisdiction and substantive

agency powers should accord with constitutional

separation-of-powers principles and the function and

province of the judiciary.” Pereira, 2018 WL 3058276

at *14 (Kennedy, J., concurring) (citing City of

Arlington, 569 U.S. at 312-16(Roberts, C.J.,

dissenting)).

The proper rules relating to the function and

province of the judiciary start with Marbury v.

Madison: “[I]t is emphatically the province and duty

of the judicial department to say what the law is.” 1

Cranch at 177. “[T]he judicial power, as originally

understood, requires a court to exercise its

independent

judgment

interpreting

and

expounding on the laws.” Perez v. Mortgage Bankers

Ass’n, 135 S. Ct. at 1217 (Thomas, J., concurring).

“Chevron deference precludes judges from exercising

that judgment, forcing them to abandon what they

believe is the best reasoning of an ambiguous statute

in favor of an agency’s construction.” Michigan v.

EPA, 135 S. Ct. at 2712.

Judge Bea notes that Chevron rests on a

misplaced Wilsonian confidence in the “expertise” of

the federal administrative agencies. 6 Who Should

Interpret Our Statutes at 9. That confidence is

misplaced for several reasons. It “converts a question

of statutory interpretation into one of policymaking.

The question that must be answered when

interpreting a statute is not what the best policy

choice would be in this statutory scheme, but what

the statute, as presented, means.” Id. at 9. Moreover,

it is the “text of the statute that has the force of law,

not the legislators’ unexpressed intent.” Id.

Furthermore, the function of “say[ing] what the law

is” is not a political one, and the judiciary, by virtue

of its independence, is well suited to perform that

role. Id.

Michigan v. EPA illustrates another problem

with Wilsonian confidence in the judgment of agency

experts. There, the Court rejected the EPA’s

interpretation of the Clean Air Act that deemed cost

irrelevant in deciding whether the regulation of

certain power plants was “appropriate and

necessary.” The effect was to impose costs of $9.6

billion a year on power plants in return for expected

benefits of only $4 to $6 million per year. In his

concurring opinion, Justice Thomas explained, “[W]e

should be alarmed that [the EPA] felt sufficiently

emboldened by [our Chevron] precedents to make

the bid for deference that it did here.” Michigan v.

EPA, 135 S. Ct. at 2713 (Thomas, J. concurring); see

also id. at 2713 n. 2 (“This is not the first time an

agency has exploited our practice of deferring to

agency interpretations of statutes.”).

6 For his part, Woodrow Wilson regarded the people as “selfish,

ignorant, timid, stubborn, or foolish.” Woodrow Wilson, The

Study of Administration, 2 Pol. Sci. Q. 198, 208 (1887).

More generally, to the extent that Chevron

rests on confidence that “administrators will

selflessly reflect ‘good government’ policies,” that

understanding fails to account for the agencies

tendency to aggrandize their power. Who Should

Interpret Our Statutes at 9. Public Choice theory

tells us “that politicians and administrators usually

act with their own self-interest in mind instead of

the public’s interest. They seek to maximize their

utilization.” Id.; see also Brett M. Kavanaugh, Fixing

Statutory Interpretation 129 Harv. L. Rev. 2118,

2150 (Jun. 2016) (“From my more than five years of

experience at the White House, I can confidently say

that Chevron encourages the Executive Brach

(whichever party controls it) to be extremely

aggressive in seeking to squeeze its policy goals into

ill-fitting statutory authorizations and restraints.”).

VI. Chevron is inconsistent with Congress’s

view of the judicial role.

Chevron’s view of the judicial role is also at

odds with the Administrative Procedures Act.

Justice Scalia recognized that Chevron is a “judgemade doctrine[] of deference.” Perez, 135 S. Ct at

1211 (Scalia, J., concurring in the judgment). It “did

not purport to be based on statutory interpretation”

of the APA. Jack M. Beerman, End the Failed

Chevron Experiment Now: How Chevron Has Failed

and Why It Can and Should Be Overruled, 42 Conn.

L. Rev. 779, 785 (2010); see also Perez, 135 S. Ct. at

1211 (Scalia, J., concurring) (Chevron is “[h]eedless

of the original design of the APA.”).

In pertinent part, the APA provides that a

reviewing court “shall decide all relevant questions

of law, interpret constitutional and statutory

provisions, and determine the meaning or

applicability of the terms of an agency action.” 5

U.S.C. § 706. In addition, it calls on reviewing courts

to “hold unlawful and set aside agency action,

findings, and conclusions of law found to be . . .

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A).

If Chevron is overruled, the courts can return

to their proper role consistent with § 706. More

generally, they can return to the pre-Chevron days

when, when courts would “assess agency

interpretations against multiple contextual factors.”

Thomas W. Merrill, The Story of Chevron, 66 Admin

L. Rev. at 255-56. That complex interaction between

the courts and the agencies gives due respect to both

in the way that Chevron does not.

CONCLUSION

For the reasons stated in the Petition and this

amicus brief, this Court should grant the writ of

certiorari and, on review, reverse the decision of the

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

John J. Park, Jr.

Counsel of Record for

Amicus Curiae

Strickland Brockington

Lewis LLP

1170 Peachtree Street

NE, Suite 2200

Atlanta, GA 30309

678.347.2208

jjp@sbllaw.net

Robert Alt

President and CEO

The Buckeye Institute

for Public Policy

Solutions

88 East Broad Street

Suite 1120

Columbus, Ohio 43215

614.224.4422

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