Amicus Curiae Brief — Herman Avery Gundy, Petitioner v. United States

No. 17-6086

In the Supreme Court of the United States

__________

HERMAN AVERY GUNDY,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

__________

BRIEF AMICUS CURIAE OF THE

BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONER

__________

ERIC RASSBACH

Counsel of Record

DIANA M. VERM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1200 New Hampshire

Ave., N.W., Ste. 700

Washington, DC 20036

erassbach@becketlaw.org

(202) 955-0095

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether, where Executive Branch action burdens

the free exercise of religion, Congress’ delegation of

power should be strictly construed.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF THE AMICUS .................................. 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ......................................... 2

ARGUMENT ............................................................... 7

I. Where Executive Branch actions

burden free exercise rights, delegations

of power should be strictly construed ............. 7

A. For the Framers, Executive Branch

actions that interfered with core

civil rights would have been subject

to narrow construction ............................... 7

B. This Court has recognized in a

variety of contexts that government

actions burdening core private

rights are forbidden absent express

law strictly construed ............................... 12

II. Strict nondelegation is needed to protect

free exercise rights, particularly for

religious minorities ........................................ 17

A. Administrative rulemaking is

uniquely unresponsive to religious

concerns .................................................... 17

iii

B. As this Court’s cases demonstrate,

government officials often use

delegated powers to burden religious

exercise...................................................... 20

C. Religious minorities in particular

are at peril from Executive Branch

actions taken with delegated

authority ................................................... 25

CONCLUSION ......................................................... 28

iv

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corporation v.

United States,

295 U.S. 495 (1935) ................................................ 7

Bose Corp. v. Consumers

Union of U.S., Inc.,

466 U.S. 485 (1984) .............................................. 14

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014) .......................................... 22

Chabad of Key West, Inc. v. Federal

Emergency Management Agency,

No. 4:17-cv-10092-JLK (S.D. Fla.,

complaint filed Dec. 4, 2017)................................ 24

Dep’t of Transp. v. Ass’n of

Am. Railroads,

135 S. Ct. 1225 (2015) .......................................... 12

Dr. Bonham’s Case, (1610)

77 Eng. Rep. 638 (C.P.) ........................................ 10

eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388 (2006) .............................................. 13

Elrod v. Burns,

427 U.S. 347 (1976) .............................................. 13

v

Epic Systems Corp. v. Lewis,

No. 16-285, 2018 WL 2292444

(May 21, 2018) ...................................................... 12

Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal,

546 U.S. 418 (2006). ................................. 19, 20, 21

Harvest Family Church v. Federal

Emergency Management Agency,

No. 17A649 ........................................................... 24

Icicle Seafoods, Inc. v. Worthington,

475 U.S. 709 (1986) .............................................. 14

INS v. Chadha,

462 U.S. 919 (1983) ................................................ 9

McAllen Grace Brethren Church v.

Jewell, No. 07-00060 (S.D. Tex. 2016) ................. 23

McAllen Grace Brethren

Church v. Salazar,

764 F.3d 465 (5th Cir. 2014) ................................ 23

Miranda v. Arizona,

384 U.S. 436 (1966) .............................................. 13

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 13

Rutgers v. Waddington

(N.Y. City Mayor’s Ct. 1784) ................................ 11

Tague v. Louisiana,

444 U.S. 469 (1980) ......................................... 12-13

vi

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) .............................................. 25

Zubik v. Burwell,

136 S. Ct. 1557 (2016) .......................................... 22

Constitutional Provisions

Verfassung der Deutschen

Demokratischen Republik ................................. 3, 4

Statutes

29 U.S.C. § 1185d ...................................................... 21

42 U.S.C. § 300gg-13 ................................................. 21

42 U.S.C. § 5151 ........................................................ 24

42 U.S.C. § 5172 ........................................................ 24

Regulations

45 C.F.R. § 147.130 .................................................... 22

76 Fed. Reg. 46,621 (Aug. 3, 2011) ........................... 22

77 Fed. Reg. 8,725 (Feb. 15, 2012) ............................ 22

82 Fed. Reg. 47,792 (Oct. 13, 2017) .......................... 22

83 Fed. Reg. 25,502 (June 1, 2018) ........................... 22

Other Authorities

1 William Blackstone, Commentaries

on the Laws of England (1765) .................. 8, 10, 12

vii

Bruce A. Ackerman, Beyond Carolene

Products, 98 Harv. L. Rev. 713 (1985)................. 26

Larry Alexander & Saikrishna Prakash,

Reports of the Nondelegation

Doctrine’s Death are Greatly

Exaggerated, 70 U. Chi. L. Rev.

1297 (2003) ............................................................. 8

David J. Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine,

2001 Sup. Ct. Rev. 201 (2001).............................. 18

Josh Blackman, Gridlock, 130 Harvard

L. Rev. 241 (2016)................................................. 14

Nathan S. Chapman & Michael W.

McConnell, Due Process as

Separation of Powers, 121 Yale L.J.

1672 (2012) ....................................................... 6, 10

Committee on Preventive Services for

Women, Institute of Medicine,

Clinical Preventive Services for

Women: Closing the Gap (2011) ........................... 21

Demophilus, The Genuine Principles of

the Ancient Saxon, or English Constitution, in 1 American Political

Writing 340 (Hyneman and Lutz

eds., 1983) (1776).................................................... 8

W. Cole Durham, Jr. et al., Traditionalism,

Secularism, and the Transformative

Dimensions of Religious Institutions,

1993 BYU L. Rev. 421 (1993) ............................... 19

viii

E. Donald Elliott, Re-Inventing

Rulemaking, 41 Duke L. J. 1490

(1992) .................................................................... 18

The Federalist, No. 33 ................................................. 9

The Federalist, No. 47 ............................................. 4, 9

The Federalist, No. 75 ................................................. 9

The Federalist, No. 78 ................................................. 9

Food and Drug Administration, Birth

Control Guide, http://bit.ly/2prP9QN .................. 21

Beatrice Catherine Franklin,

Irreparability, I Presume? On Assuming

Irreparable Harm for Constitutional

Violations in Preliminary Injunctions,

45 Colum. Hum. Rts. L. Rev. 623 (2014) ........ 13-14

Philip Hamburger, Exclusion and

Equality: How Exclusion from the

Political Process Renders Religious

Liberty Unequal, 90 Notre Dame L.

Rev. 1919 (2015) ........................................... passim

HRSA, Women’s Preventive Services

Guidelines (Oct. 2017)

https://www.hrsa.gov/womensguidelines/index.html........................................... 22

Douglas Laycock, Religious Liberty for

Politically Active Minority Groups: A

Response to NeJaime and Siegel, 125

Yale L.J. Forum 369 (2016) ................................. 26

ix

Letter by T.Q., Boston Gazette & Country J. (Apr 18, 1763), reprinted in 1

American Political Writing during

the Founding Era 1760-1805 19

(Charles S. Hyneman and Donald S.

Lutz eds., 1983) ...................................................... 8

John F. Manning, Constitutional

Structure and Judicial Deference to

Agency Interpretations of Agency

Rules, 96 Colum. L. Rev. 612 (1996).................... 16

Jason Mazzone, The Waiver Paradox, 97

Nw. U. L. Rev. 801 (2003) .................................... 12

Michael W. McConnell, The Ninth

Amendment in Light of Text and

History, 2010 Cato Sup. Ct. Rev. 13 .................... 11

Montesquieu, The Spirit of the Laws

(Thomas Nugent trans., 1900) (1748).................... 8

Note, Major Questions Objections,

Harvard L. Rev. 2191 (2016) ............................... 14

Peter Orszag, Too Much of a Good

Thing, New Republic (Sept. 14, 2011) ................. 18

Theophilus Parsons, The Essex Result, in

1 American Political Writing 480

(Hyneman and Lutz eds., 1983) (1778) .............. 8-9

Martin H. Redish & William D. Gohl,

The Wandering Doctrine of

Constitutional Fact, 59 Ariz. L. Rev.

289 (2017) ............................................................. 14

x

Gregory C. Sisk & Michael Heise,

Muslims and Religious Liberty in the

Era of 9/11: Empirical Evidence

from the Federal Courts, 98 Iowa L.

Rev. 231 (2012) ..................................................... 25

Gregory C. Sisk, How Traditional and

Minority Religions Fare in the

Courts: Empirical Evidence from

Religious Liberty Cases, 76 U. Colo.

L. Rev. 1021 (2005)......................................... 19, 25

Cass R. Sunstein, Nondelegation Canons,

67 U. Chi. L. Rev. 315 (2000) ............................... 15

Ruti Teitel, Post-Communist

Constitutionalism: A Transitional

Perspective, 26 Colum. Hum. Rts. L.

Rev. 167 (1994) ....................................................... 4

Eugene Volokh, A Common-Law Model

for Religious Exemptions, 46 UCLA

L. Rev. 1465 (1999)............................................... 19

Woodrow Wilson, The Study of

Administration, 2 Pol. Sci. Q. 197

(1887) .................................................................... 17

Charles Alan Wright et al., 11A Federal

Practice & Procedure § 2948.1 ............................. 13

Ilan Wurman, Constitutional

Administration, 69 Stanford L.

Rev. 359 (2017) ..................................................... 15

INTEREST OF THE AMICUS1

The Becket Fund for Religious Liberty is a nonprofit law firm dedicated to the free expression of all

religious traditions. Becket has represented agnostics,

Buddhists, Christians, Hindus, Jews, Muslims, Santeros, Sikhs, and Zoroastrians, among many others, in

lawsuits across the country and around the world.

The Becket Fund frequently represents religious

people who seek to vindicate their constitutional

rights against government overreach, both as individuals or in community with others. See, e.g., Holt v.

Hobbs, 135 S. Ct. 853 (2015) (prisoner appearance regulation); Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171 (2012) (ministerial exception). In particular, the Becket Fund has

long sought, both as amicus and merits counsel, to protect religious and other Americans against encroachment on their First Amendment rights by unelected

government officials. See, e.g., Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418

(2006) (Attorney General used delegated authority under Controlled Substances Act to deny accommodation

to religious group); Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, 570 U.S. 205 (2013) (USAID used delegated

authority under the Leadership Act to mandate

No counsel for a party authored any portion of this brief

or made any monetary contribution intended to fund the

preparation or submission of the brief. All parties have consented to the filing of this brief.

1

2

grantee speech concerning prostitution); Burwell v.

Hobby Lobby, 134 S. Ct. 2751 (2014) (HHS used delegated authority under the Affordable Care Act to impose contraceptive mandate on religious business

owners); Zubik v. Burwell, 136 S. Ct. 1557 (2016)

(HHS used delegated authority under the Affordable

Care Act to impose oft-revised contraceptive mandate

on nonprofit religious organizations); Harvest Family

Church v. Fed. Emergency Mgmt. Agency, No. 17A649

(application withdrawn Jan. 4, 2018) (FEMA used delegated authority under the Stafford Act to issue guidance categorically excluding houses of worship from

disaster aid grant program; guidance rescinded after

the Court called for a response to Texas churches’

emergency application for injunction); Chabad of Key

West, Inc. v. Fed. Emergency Mgmt. Agency, No. 4:17cv-10092-JLK (S.D. Fla., complaint filed Dec. 4, 2017)

(parallel case involving Florida synagogues).

The Becket Fund believes that at stake in this litigation is not only the scope of SORNA liability that

may be imposed upon criminal defendants, but also

the ability of religious people to engage in religious activity without undue interference by unelected government officials. It therefore submits this brief to urge

the Court to adopt a rule of strict construction against

delegation with respect to Executive Branch actions

that burden the free exercise of religion.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The East German Constitution protected all the

same core civil and political rights ours does. Every

citizen had the right, “in accordance with the principles of [that] Constitution, to express his opinion

3

freely and publicly.” 2 The freedom of the press was

guaranteed, as was the right to assemble.3 The Constitution even protected the “right to profess a religious belief and to engage in religious activities.”4 In

fact, many more rights were protected in the East German Constitution than our own, including the right to

a job, the right to a residence, and the right to leisure

and recreation.5

But of far more practical importance than these human rights guarantees were the structural provisions

that allocated political power. For instance, the German Democratic Republic was defined as a “political

organization * * * under the leadership of the working

class and its Marxist-Leninist party.”6 The powers of

the East German people were delegated to a single

Verfassung der Deutschen Demokratischen Republik,

Artikel 27(1) (Staatsverlag der Deutschen Demokratischen

Republik, Berlin 1976, 8th ed. 1989) (“Jeder Bürger der

Deutschen Demokratischen Republik hat das Recht, den

Grundsätzen dieser Verfassung gemäß seine Meinung frei

und öffentlich zu äußern.”).

2

3

Id., Artikel 27(2) (press); Artikel 28 (assembly).

Id., Artikel 39(1) (“Jeder Bürger der Deutschen Demokratischen Republik hat das Recht, sich zu einem

religiösen Glauben zu bekennen und religiöse Handlungen

auszuüben.”).

4

Id., Artikel 24(1) (job); Artikel 37 (residence); Artikel 34

(leisure and recreation).

5

Id., Artikel 1 (“Sie ist die politische Organisation der

Werktätigen in Stadt und Land unter der Führung der Arbeiterklasse und ihrer marxistisch-leninistischen Partei.”).

6

4

state organ: “The alliance of all powers of the People

finds its organized expression in the National Front of

the German Democratic Republic.”7 And the National

Front was in turn designated as the locus where all of

the parties and mass organizations in East Germany

“unified * * * all the powers of the People.”8

This concept of political power delegated to a single

organ of government was consistent with the principle

of constitutional law, widely adopted within the Warsaw Pact countries, of the “unity of state power.”9 And

the doctrine of unity of state power directly correlated

with personal constitutional and civil rights that

proved to be “illusory.”10

Our own Constitution is premised instead on the

separation of powers, and that has made all the difference. By distributing power among both federal and

state sovereigns, and among three separate branches

within the federal government, the Founders sought

to prevent tyranny. See The Federalist No. 47, at 336

(James Madison) (“The accumulation of all powers,

legislative, executive, and judiciary, in the same

Id., Artikel 3(1) (“Das Bündnis aller Kräfte des Volkes

findet in der Nationalen Front der Deutschen Demokratischen Republik seinen organisierten Ausdruck.”

7

Id., Artikel 3(2) (“In der Nationalen Front der

Deutschen Demokratischen Republik vereinigen die

Parteien und Massenorganisationen alle Kräfte des Volkes

* * *”).

8

Ruti Teitel, Post-Communist Constitutionalism: A

Transitional Perspective, 26 Colum. Hum. Rts. L. Rev. 167,

169 (1994).

9

10

Ibid.

5

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

hereditary, self-appointed, or elective, may justly be

pronounced the very definition of tyranny.”). And by

preventing one branch of the federal government from

giving its power to another, the non-delegation doctrine protects, or ought to protect, the Founders’ careful design.

The problem presented by this appeal is that the

modern administrative state—constitutionally speaking, a relatively recent phenomenon—does not fit

neatly into the Framers’ model. As a practical matter,

modern Executive Branch agencies often make law,

that is, rules that bind private and public conduct,

even though they are part of the Executive Branch rather than the Legislative Branch.

And when Executive Branch officials make law,

they often ride roughshod over personal civil rights,

including specifically First Amendment and other protections for the free exercise of religion. The Court

need look no further than its own docket in the last

several years to see multiple examples of administrative agencies exercising delegated powers that have

given short shrift to free exercise. Thus, just as concentration of power in one state organ in East Germany meant that government officials were free to ignore personal constitutional rights, concentrating

both legislative and executive powers in Executive

Branch officials means administrative agencies can

pick and choose which personal constitutional rights

to honor.

This structural problem can be mitigated with a

structural solution rooted in founding-era understandings of the nature of the judicial role. As Professors

6

Chapman and McConnell have observed, in the founding era courts used a principle of equitable interpretation to narrow the application of rules that infringed

on natural rights—the predecessors to our now-codified civil rights. Nathan S. Chapman & Michael W.

McConnell, Due Process as Separation of Powers, 121

Yale L.J. 1672, 1706 (2012).

The same principle ought to hold today in the context of Executive Branch regulatory action: where a

rule, guidance, or other Executive Branch action

threatens to impinge on personal constitutional rights

against the government, that rule can be invalidated

under a strict construction of the law it is promulgated

under.

Adopting this approach would not only comport

with judicial practice at the founding, but it would also

be consistent with this Court’s longstanding practice

of treading carefully where personal constitutional

rights are implicated, as demonstrated by precedents

in areas as disparate as the waiver of constitutional

rights, the major questions doctrine, and Bose constitutional facts.

Strictly construing laws to invalidate Executive

Branch actions that impinge on personal constitutional rights would ensure that no one may join together powers the Constitution has made separate.

And that would help preserve individual liberty.

7

ARGUMENT

I. Where Executive Branch actions burden free

exercise rights, delegations of power should

be strictly construed.

The Court has not yet applied nondelegation doctrine in the context of free exercise rights.11 Guidance

is available, however, in both history and this Court’s

precedents. Founding-era understandings of how to

construe executive actions that interfered with natural rights, and this Court’s careful treatment of constitutional rights in a variety of other contexts, confirm

that delegation of authority from Congress to the Executive Branch should be narrowly construed where

the Executive Branch action at issue burdens free exercise rights.12

A. For the Framers, Executive Branch actions that interfered with core civil rights

would have been subject to narrow construction.

1. During the founding era, and in the authorities

the Founders relied on, the legislative power was seen

Arguably, however, the religious freedom of the defendants in A.L.A. Schechter Poultry Corporation v. United

States, 295 U.S. 495 (1935) was an unspoken issue lurking

beneath the surface of that case. The defendants ran a kosher slaughterhouse under rabbinic supervision. That Nazi

Germany had very recently issued executive decrees banning all forms of kosher slaughter cannot have been entirely unknown to the Justices.

11

This principle would not apply to cases where an Executive Branch official accommodated religion rather than

burdening it.

12

8

as the power to make the laws, rules, and regulations—terms used interchangeably—that bind and

govern society. See Larry Alexander & Saikrishna

Prakash, Reports of the Nondelegation Doctrine’s

Death are Greatly Exaggerated, 70 U. Chi. L. Rev.

1297, 1305-06 (2003). Thus, for instance, William

Blackstone characterized the legislative power as the

“power of making laws” to “prescribe the rule of civil

action.” 1 William Blackstone, Commentaries *52.

Similarly, Montesquieu saw the legislative power as

the power to enact “temporary or perpetual laws, and

amend[ ] or abrogate[ ] those that have already been

enacted.” Montesquieu, The Spirit of the Laws 182

(Thomas Nugent trans., 1900) (1748).

American political writings during the colonial period took a similar view. A 1763 letter published in a

Boston newspaper observed that Montesquieu had

been critical of “entrusting the same gentlemen with

legislative and judiciary power, or the power of making laws and judging of them after they are made.”

Letter by T.Q., Boston Gazette & Country J. (Apr 18,

1763), reprinted in 1 American Political Writing during the Founding Era 1760-1805 19, 20 (Charles S.

Hyneman and Donald S. Lutz eds., 1983). Another

early American author, describing the practices of the

Saxons, equated “legislative authority” with “ma[king]

laws and regulations.” Demophilus, The Genuine

Principles of the Ancient Saxon, or English Constitution, in 1 American Political Writing 340, 345 (Hyneman and Lutz eds., 1983) (1776). And a foundational

account of the Massachusetts state constitutional convention characterized legislative power as that which

“mak[es] laws, or prescrib[es] such rules of action to

every individual in the state.” Theophilus Parsons,

9

The Essex Result, in 1 American Political Writing 480,

492 (Hyneman and Lutz eds., 1983) (1778).

The same view of the nature of legislative power

prevailed during the ratification debates. For example, Alexander Hamilton rhetorically asked, “What is

a LEGISLATIVE power, but a power of making

LAWS?” The Federalist No. 33, at 245 (A. Hamilton)

(B. Wright ed. 1961). Likewise, he noted in Federalist

No. 75 that the “essence of the legislative authority is

to enact laws, or, in other words to prescribe rules for

the regulation of the society.” The Federalist No. 75,

at 476 (A. Hamilton). See also The Federalist No. 47,

at 338 (J. Madison) (“The magistrate in whom the

whole executive power resides cannot of himself make

a law.”).

The founding generation would therefore very

likely have viewed modern-day agency rulemaking as

an exercise of the legislative power.13 And that would

mean that courts had a duty to temper that power if it

seeped beyond its proper bounds. See The Federalist

No. 78, at 469-70 (A. Hamilton) (Clinton Rossiter ed.,

1961). (observing that courts would be “of vast importance in mitigating the severity and confining the

operation of [unjust and partial] laws”).

Where Executive Branch action strays into the realm of

legislative power, the Constitution’s requirements of bicameralism and presentment also apply. See INS v.

Chadha, 462 U.S. 919, 951 (1983) (“the prescription for legislative action in Art. I, §§ 1, 7 represents the Framers’ decision that the legislative power of the Federal government

be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”).

13

10

That baseline assumption—that courts would exercise their interpretive powers to ease the impact of

unreasonable laws—also appeared in the writings of

Blackstone: “[W]here some collateral matter arises out

of the general words, and happens to be unreasonable;

there the judges are in decency to conclude that this

consequence was not foreseen by the parliament.” 1

Blackstone, Commentaries *91. Blackstone’s view regarding “collateral matter” was mainstream. For example, scholars view Sir Edward Coke’s opinion in the

famous Dr. Bonham’s Case not as an early example of

judicial review, but rather of equitable interpretation.

See Nathan S. Chapman & Michael W. McConnell,

Due Process as Separation of Powers, 121 Yale L.J.

1672, 1690-91 & n.60 (2012) (reviewing scholarly assessments of Dr. Bonham’s Case, (1610) 77 Eng. Rep.

638 (C.P.); 8 Co. Rep. 107a). And this judicial practice

was by no means confined to the English side of the

Atlantic: To protect liberty, early American “courts engaged in equitable interpretation to construe statutes

to avoid abrogating basic due process norms.” Id., 121

Yale L.J. at 1706.

2. The history of natural rights jurisprudence also

points towards strict construction. At the time of the

founding, English and American courts did not shy

away from invoking natural rights in reaching their

decisions. But today, founding-era natural rights have

been largely codified as private civil rights. Thus how

founding-era courts treated natural rights can serve

as a rough historical analogue for how courts today

deal with private civil rights.

As Professor McConnell has remarked, “unenumerated natural rights [we]re protected through some

combination of political self-control on the part of the

11

political branches (reinforced by the separation of

powers) and equitable interpretation by the courts,

which entails the narrow construction of statutes so as

to avoid violations of natural rights.” Michael W.

McConnell, The Ninth Amendment in Light of Text

and History, 2010 Cato Sup. Ct. Rev. 13, 18. Thus,

“courts had the power to engage in equitable interpretation, under which statutes were interpreted narrowly so as to avoid violating the law of nature.” Id. at

21. This created a legal environment where “natural

rights control in the absence of sufficiently explicit

positive law to the contrary,” which can be viewed “as

a clear statement rule for abrogating unenumerated

natural rights.” Id. at 18.

Equitable interpretation in the context of natural

rights “was predicated on the charitable assumption

that the legislature likely did not intend, by the use of

broad language not explicitly addressed to the point at

issue, to violate the law of nature.” McConnell, The

Ninth Amendment in Light of Text and History, 2010

Cato Sup. Ct. Rev. at 22. And that charitable assumption did not trample on the legislative power, as one

American judge observed in 1784: “When the judicial

make these distinctions, they do not controul the Legislature; they endeavour to give their intention its

proper effect.” Ibid. (quoting Rutgers v. Waddington

(N.Y. City Mayor’s Ct. 1784)). See also Philip Hamburger, Judicial Duty 344-57 (2008) (describing early

American cases applying equitable interpretation,

particularly the Rutgers case).

It is thus consistent with how founding-era courts

saw their judicial duty to allow for equitable interpretations of law to avoid interfering with core personal

rights—the latter-day incarnation of natural rights—

12

in particular cases. And a strict construction of laws

that potentially burden core personal rights is also

consistent with the wider practice of this Court to seek

to harmonize laws rather than to read conflicts into

them. See, e.g., Epic Systems Corp. v. Lewis, No. 16285, 2018 WL 2292444, at *8 (May 21, 2018) (courts

must harmonize potentially conflicting laws absent

express Congressional command).

B. This Court has recognized in a variety of

contexts that government actions burdening core private rights are forbidden absent express law strictly construed.

Blackstone observed “that the English Constitution required that no subject be deprived of core private rights except in accordance with the law of the

land.” Dep’t of Transp. v. Ass’n of Am. Railroads, 135

S. Ct. 1225, 1244 (2015) (Thomas, J., concurring) (citing 1 Commentaries 129, 134, 137–138). True to that

tradition, this Court often prohibits government infringement of core private rights absent an express

law, strictly construed. The Court has consistently

sought to tread lightly where core constitutional and

civil rights are concerned. We offer some examples below.

1. Waiver of constitutional rights. This Court

has long held that even constitutional rights can be

waived. See Jason Mazzone, The Waiver Paradox, 97

Nw. U. L. Rev. 801, 801 (2003) (noting that under Supreme Court doctrine, various constitutional criminal

protections can be waived or bargained away). Yet, before such a waiver can occur, a high standard for finding that a party waived constitutional rights is applied. See, e.g., Tague v. Louisiana, 444 U.S. 469, 470

13

(1980) (“This Court has always set high standards of

proof for the waiver of constitutional rights.”) (quoting

Miranda v. Arizona, 384 U.S. 436, 475 (1966)). Further, under the doctrine of unconstitutional conditions, constitutional rights cannot be waived for a government benefit, whereas non-constitutional rights

can be so forfeited. See Perry v. Sindermann, 408 U.S.

593, 597 (1972) (“[E]ven though a person has no

“right” to a valuable governmental benefit and even

though the government may deny him the benefit for

any number of reasons, * * * [the government] may

not deny a benefit to a person on a basis that infringes

his constitutionally protected interests.”). See also

Mazzone, at 807-08 (“the Supreme Court has invalidated a wide range of government efforts to compel individuals to forego constitutional rights as the condition for receiving governmental benefits”).

2. Injunctive relief. In seeking a preliminary injunction, a plaintiff must show irreparable harm. See

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391

(2006). But that all changes in the context of constitutional rights as plaintiffs have a much lower hurdle to

clear: “When an alleged deprivation of a constitutional

right is involved, * * * most courts hold that no further

showing of irreparable injury is necessary.” Charles

Alan Wright et al., 11A Federal Practice & Procedure

§ 2948.1. In Elrod v. Burns, Justice Brennan declared

that “[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes

irreparable injury.” 427 U.S. 347, 373 (1976) (plurality

op.) Since then, lower courts have applied this standard in various constitutional contexts. See Beatrice

Catherine Franklin, Irreparability, I Presume? On As-

14

suming Irreparable Harm for Constitutional Violations in Preliminary Injunctions, 45 Colum. Hum. Rts.

L. Rev. 623, 635-44 (2014) (collecting cases in the areas of speech, other First Amendment rights, Fourth

and Eighth Amendment rights, and Fourteenth

Amendment rights).

3. Constitutional facts under Bose. Normally,

federal appellate courts defer to a lower court’s factual

findings under a “clearly erroneous” standard of review. See Icicle Seafoods, Inc. v. Worthington, 475 U.S.

709, 714 (1986). But when examining a “constitutional

fact”—facts necessary to the constitutional analysis of

a claim—the Court has instead required appellate

courts to “make an independent examination of the

whole record.” Bose Corp. v. Consumers Union of U.S.,

Inc., 466 U.S. 485, 499 (1984). The “constitutional fact

doctrine” has been viewed by scholars as “truly foundational to our constitutional system and essential to

the judicial protection of constitutional rights” because it “serves as the cornerstone of our system of

separation of powers.” Martin H. Redish & William D.

Gohl, The Wandering Doctrine of Constitutional Fact,

59 Ariz. L. Rev. 289, 290-91 (2017).

4. Major questions doctrine. Strict construction

of laws potentially infringing core private rights in the

context of nondelegation concerns also resembles this

Court’s major questions doctrine. Note, Major Questions Objections, 129 Harvard L. Rev. 2191, 2203

(2016) (“it is better to characterize the major question

cases as occasions where the Court thought it necessary to engage in vaguely equitable intervention”).

Just as the Court refuses to defer to agencies in the

realm of “major question,” see Josh Blackman, Gridlock, 130 Harvard L. Rev. 241, 261-65 (2016), so too

15

should the Court refuse to defer to agencies in the

realm of nondelegation and the infringement of constitutional rights. And adopting such a rule of construction would enable agencies to be treated no better than

Congress, to which the Court applies the constitutional avoidance canon. See Ilan Wurman, Constitutional Administration, 69 Stanford L. Rev. 359, 415

(2017). See also id. (“Deploying all the tools of statutory construction to determine what power Congress

actually intended to delegate empowers our elected

representatives and serves the same republican purpose served when courts determine whether Congress

has transgressed the limits of the powers “We the People” delegated to Congress in the Constitution.”).

5. Constitutionally-inspired nondelegation

canons. As Professor Sunstein has noted, although

the Court has not directly enforced the nondelegation

doctrine since 1935, it has promulgated a host of nondelegation canons of construction that “represent a

salutary kind of democracy-forcing minimalism, designed to ensure that certain choices are made by an

institution with a superior democratic pedigree.”

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

L. Rev. 315, 317 (2000). “Indeed,” he argues, these

“nondelegation canons turn out to be a contemporary

incarnation of the founding effort to link protection of

individual rights, and other important interests, with

appropriate institutional design.” Id.

According to Professor Sunstein, the Court has

adopted several “constitutionally inspired nondelegation canons”:

(1) agencies are not permitted to construe statutes

so as to raise serious constitutional doubts;

16

(2) agencies are not allowed to interpret ambiguous

provisions to preempt state law;

(3) agencies not allowed to apply statutes retroactively; and

(4) the rule of lenity.

Id. at 331-32 (collecting cases).14

*

*

*

As history and this Court’s consistent practice

show, where core constitutional and civil rights are at

stake, courts ought to proceed carefully. In the context

of Executive Branch actions that burden free exercise,

that means that courts should strictly construe legislation against delegation of power to the Executive

Branch.

In the same vein, Dean Manning suggests that “[a]n independent judicial check upon agency interpretive authority would insert a layer of security against unwise or oppressive agency lawmaking” and “promote the separation

of powers objective of preserving liberty by dispersing government authority.” John F. Manning, Constitutional

Structure and Judicial Deference to Agency Interpretations

of Agency Rules, 96 Colum. L. Rev. 612, 682-83 (1996). Requiring agencies “to speak more precisely in order to bind

an independent interpreter” would mean that agencies

“would have a harder time adopting policies contrary to the

public interest.” Id. at 683.

14

17

II. Strict nondelegation is needed to protect free

exercise rights, particularly for religious minorities.

A. Administrative rulemaking is uniquely

unresponsive to religious concerns.

As the Court’s religious liberty docket demonstrates, administrative agencies, unlike legislatures,

do not always feel compelled to balance important religious liberty concerns with other societal interests.

As an initial matter, the administrative process intentionally dodges the normal give-and-take of the political process. It was designed that way, largely to

eliminate what was seen as the problem of having to

accommodate minority interests. Woodrow Wilson,

one of the early leading advocates for increased administrative authority, fretted that public opinion was

“meddlesome” and that it was too hard to persuade “a

voting majority of several million heads.” Philip Hamburger, Exclusion and Equality: How Exclusion from

the Political Process Renders Religious Liberty Unequal, 90 Notre Dame L. Rev. 1919, 1946-47 & n.79

(2015) (quoting Woodrow Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 208 (1887)). To Wilson, the

primary trouble came not in the number of heads but

in the diverse types of heads: democracy required persuading “the mind, not of Americans of the older

stocks only, but also of Irishmen, of Germans, [and] of

negroes.” Id. at 1947 & n.80 (quoting Wilson, 2 Pol.

Sci. Q. at 209). Unfortunately, Wilson’s anti-democratic views have persisted. In 2011, a former Director

of the Office of Management and Budget publicly advocated that the country “need[s] less democracy,” and

that the “serious problems facing our country” could

18

best be solved by making “our political institutions

* * * less democratic.” Peter Orszag, Too Much of a

Good Thing, New Republic (Sept. 14, 2011),

https://newrepublic.com/article/94940/peter-orszagdemocracy.

Of course in some situations agencies provide

thirty days of notice and comment for certain types of

rules. But even this democracy-lite aspect of the administrative process is widely understood as often little more than a “charade.” David J. Barron & Elena

Kagan, Chevron’s Nondelegation Doctrine, 2001 Sup.

Ct. Rev. 201, 231 (2001). “No administrator in Washington” truly relies on notice-and-comment; it is rather “a highly stylized process for displaying in a formal way the essence of something which in real life

takes place in other venues.” E. Donald Elliott, Re-Inventing Rulemaking, 41 Duke L. J. 1490, 1492 (1992).

The resulting reality is that “administrators [are] almost entirely insulated from the public” and unreached by the dialogue and debate that invigorates

and guides the democratic process. Hamburger, 90

Notre Dame L. Rev. at 1940. What is more, “[e]ntire

categories of lawmaking—such as the interpretation

done through guidance, manuals, letter opinions,

briefs, etc.—does not really require notice, let alone

comment.” Ibid.

This exclusion of American citizens from the decision-making process “comes with a distinctively hard

edge for many religious Americans,” “particularly * * * the relatively orthodox.” Hamburger, 90

Notre Dame L. Rev. at at 1921, 1928. Agency officials

simply are not “as sensitive to religious sensibilities as

are representative lawmakers.” Id. at 1921. They are

not only insulated from “political pressures,” but also

19

infused with a “self-conscious rationalism and scientism” making them “relatively indifferent * * * to religious concerns.” Ibid.; see also Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA

L. Rev. 1465, 1487 n.57 (1999) (noting “agencies’ tunnel vision” in weighing religious matters “alongside

their more traditional concerns”). This contributes to

an “insensitivity of governmental bureaucracy,” which

has been a “continual and disturbing source of imposition” upon religious Americans, especially “religious

minorities.” Gregory C. Sisk, How Traditional and Minority Religions Fare in the Courts: Empirical Evidence from Religious Liberty Cases, 76 U. Colo. L. Rev.

1021, 1025 (2005).

Forced to appeal to indifferent and unresponsive

administrators, “individuals or groups whose religious

liberty is burdened by * * * administrative regulation”

have significantly reduced “leverage * * * to induce

government bureaucrats to accommodate religious

practices.” W. Cole Durham, Jr. et al., Traditionalism,

Secularism, and the Transformative Dimensions of Religious Institutions, 1993 BYU L. Rev. 421, 450 (1993).

This may have been of little moment a hundred years

ago, but “in the modern bureaucratic state, where government regulation increasingly pervades all social

space,” religious considerations are heavily disadvantaged, burdened by “a mass of administrative rules

and guidelines,” and “often sacrificed to lower order

bureaucratic values such as administrative efficiency.” Ibid. This Court perhaps best summarized—

and rejected—agencies’ sometimes blinkered decisionmaking in Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, noting the “classic rejoinder of bu-

20

reaucrats throughout history” when asked for religious exemptions: “If I make an exception for you, I’ll

have to make one for everybody, so no exceptions.” 546

U.S. 418, 436 (2006).

By contrast, although Congress can and does also

overlook religious liberty interests, “Congress is far

more sensitive to religious sensibilities than administrators.” Hamburger, 90 Notre Dame L. Rev. at 1943.

Thus, “for purposes of religious liberty, a congressional veto on executive lawmaking is no substitute for

the Constitution’s requirement of congressional legislation, subject to an executive veto.” Ibid. Especially

given that executive control is limited given the number of “administrators mak[ing] binding regulations in

more or less ‘independent’ agencies, with varying degrees of formal independence from political control.”

Id. at 1944.

B. As this Court’s cases demonstrate, government officials often use delegated powers

to burden religious exercise.

In just the past couple of decades, a number of religious liberty cases before this Court and in the lower

courts clearly illustrate how delegated authority tends

to lead unelected officials to burden religious exercise.

In O Centro, for example, United States Customs

officials seized a small religious group’s shipment of

sacramental tea made from two Amazonian plants,

one of which contained a hallucinogen listed under the

Controlled Substances Act. 546 U.S. at 425. The customs inspectors also “threatened the [small religious

group] with prosecution.” Ibid. This Court upheld the

sect’s religious rights under RFRA. Id. at 423. In

21

reaching its decision, the Court noted that the Attorney General had been delegated power under the Controlled Substances Act to provide a waiver to the religious group, but had chosen not to. Id. at 432-33.

Several other cases stem from the contraceptive

mandate regulations issued by government agencies

under the Affordable Care Act (“ACA”). The ACA itself

made no mention of a contraceptive mandate. Instead,

the ACA required certain employers to provide health

insurance to their employees that included coverage

for “preventative care and screenings” for women. 42

U.S.C. § 300gg-13(a)(4); 29 U.S.C. § 1185d.

But Congress did not specify what “preventive care

and screenings” means. Instead, Congress delegated

that task to the Health Resources and Services Administration (“HRSA”) of the Department of Health

and Human Services (“HHS”). 42 U.S.C. § 300gg13(a)(4). HHS, in turn, asked the quasi-private Institute of Medicine (“IOM”), for recommendations. IOM

recommended that HHS define “preventive care” to include, among other things, “the full range of Food and

Drug Administration-approved contraceptive methods, sterilization procedures, and patient education

and counseling for women with reproductive capacity.” Committee on Preventive Services for Women, Institute of Medicine, Clinical Preventive Services for

Women: Closing the Gap 109-10 (2011). The 20 FDAapproved contraceptive methods include both drugs

and devices that operate to prevent fertilization of an

egg, and drugs and devices that can prevent implantation of a fertilized egg. Food and Drug Administration, Birth Control Guide, http://bit.ly/2prP9QN. Only

days after the recommendations were published, HHS

adopted them entirely, by means of a post on HRSA’s

22

website. See HRSA, Women’s Preventive Services

Guidelines, (Oct. 2017) https://www.hrsa.gov/womensguidelines/index.html; 76 Fed. Reg. 46,621 (Aug. 3,

2011), 77 Fed. Reg. 8,725 (Feb. 15, 2012); 45 C.F.R.

§ 147.130(a)(1)(iv). Thus, Congress outsourced figuring out what “preventive care and screenings” were to

HHS, and HHS outsourced that inquiry to IOM. It is

highly unlikely that politically accountable Members

of Congress would have created the contraceptive

mandate. But HHS had no hesitation rushing in with

its delegated power where Congress feared to tread.

As the Court is aware, the agency-created contraceptive mandate resulted in nationwide litigation involving several hundred religious plaintiffs and multiple trips to this Court. See, e.g., Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Zubik v.

Burwell, 136 S. Ct. 1557, 1560 (2016). After insisting

to this Court in Hobby Lobby that the version of the

mandate at issue there was the least restrictive alternative, and then insisting to this court in Zubik that a

different version of the mandate was the least restrictive alternative, HHS determined that it was possible

to provide both religious freedom and contraceptive

coverage, and issued an interim final rule to that effect. See 82 Fed. Reg. 47,792 (Oct. 13, 2017).15 And the

government is also now offering to pay directly for contraceptive coverage by means of its longstanding Title X program. See 83 Fed. Reg. 25,502 (June 1, 2018).

Another case shows how long it can take members

of religious minorities to obtain relief from regulatory

As of this writing, the interim final rule’s validity is the

subject of appeals in both the Third and Ninth Circuits.

15

23

agencies. In 2006, an undercover agent of the United

States Fish and Wildlife Service attended a Native

American religious ceremony and confiscated religiously-significant eagle feathers from a Lipan Apache

religious leader named Pastor Robert Soto. See

McAllen Grace Brethren Church v. Salazar, 764 F.3d

465, 468 (5th Cir. 2014). For the next ten years, Pastor

Soto pursued the return of his feathers from the Department of the Interior. He was initially denied possession of the eagle feathers because Department of

the Interior regulations promulgated under the Bald

and Golden Eagle Protection Act required that he be a

member of a federally-recognized tribe, and while the

Lipan Apache Tribe was recognized by historians, sociologists, and the State of Texas, it was not recognized

by the federal government. Id. at 469.

When the case finally reached it, the Fifth Circuit

ruled that the Department’s regulations likely violated RFRA because the Department did not “demonstrat[e] that a possession ban on all but a select few

American Indians” constituted the least restrictive

means of achieving a compelling governmental interest. McAllen, 764 F.3d at 479-80. In 2016, the Department entered a settlement agreement with Pastor

Soto that recognized the rights of Pastor Soto and

other members of his congregations to pick up naturally molted feathers from the wild, exchange feathers

with other Native Americans, and fashion feathers

into objects for ceremonial use. See Settlement Agreement, McAllen Grace Brethren Church v. Jewell, No.

07-00060 (S.D. Tex. filed June 13, 2016), ECF No. 831, https://s3.amazonaws.com/becketpdf/Exhibit-1-Settlement-Agreement-file-stamped.pdf.

24

Another longstanding regulatory form of discrimination against religious exercise ended earlier this

year as a result of litigation. For decades, FEMA had

used the power delegated to it under the Stafford Disaster Relief and Emergency Assistance Act to issue

non-regulatory guidance denying churches, synagogues, mosques, and other houses of worship access

to disaster aid grants. This was so even though federal

disaster assistance law specifically prohibits “discrimination on the grounds of race, color, religion” in the

distribution of disaster aid. 42 U.S.C. § 5151(a).

After Hurricane Harvey devastated Texas and

Hurricane Irma damaged Florida, two lawsuits were

filed against FEMA’s guidance, one by churches in

Texas and another by synagogues in Florida. See Harvest Family Church v. Federal Emergency Management Agency, No. 17A649 (application withdrawn Jan.

4, 2018) (Texas churches’ emergency application for

injunction); Chabad of Key West, Inc. v. Federal Emergency Management Agency, No. 4:17-cv-10092-JLK

(S.D. Fla., complaint filed Dec. 4, 2017), ECF No. 1

(Florida synagogues). The Department of Justice defended FEMA’s guidance all the way through the

lower courts, but once the Court asked the Solicitor

General to respond to the Texas churches’ application

for an injunction, FEMA decided to rescind its guidance instead. Congress subsequently used its legislative power to enact legislation requiring FEMA to

treat houses of worship on equal terms to other applicants. See 42 U.S.C. § 5172(a)(3)(C).

All of these cases evince a similar pattern: government bureaucrats cut religious people no slack as to

their religious exercise, even though those bureaucrats are enforcing “law” not enacted by the people’s

25

representatives. And while the courts ultimately protected these specific parties’ religious liberty, that’s

not always the case, especially with minority faiths.

See Gregory C. Sisk & Michael Heise, Muslims and

Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa L. Rev. 231

(2012) (finding that, after controlling for other factors,

Muslim claimants had a 22% chance of success in religious liberty cases in the federal courts from 19962005, whereas non-Muslim claimants had a 38%

chance). But see Gregory C. Sisk, How Traditional

and Minority Religions Fare in the Courts: Empirical

Evidence from Religious Liberty Cases, 76 U. Colo. L.

Rev. 1021, 1037 (2005) (finding that while minority

faiths had a statistically similar success rate to other

faiths in religious liberty claims brought in federal

courts, Catholics and Baptist claimants fared worse).

C. Religious minorities in particular are at

peril from Executive Branch actions taken

with delegated authority.

Delegation of too much legislative authority to

agencies places large swaths of lawmaking outside of

the political process, resulting in particular harm to

religious minorities. Concern over minorities has long

been a concern of the Court, with Carolene Products’

famous footnote four and its doctrinal progeny a prominent example. There, Justice Stone expressed concern

about “statutes directed at particular religious * * *

minorities,” as well as “prejudice against discrete and

insular minorities.” United States v. Carolene Prods.

Co., 304 U.S. 144, 152-53 n.4 (1938). Certainly there

are religious groups today who are properly classified

as “discrete and insular minorities.” But “anonymous

26

and diffuse” religious minorities can be just as threatened. Bruce A. Ackerman, Beyond Carolene Products,

98 Harv. L. Rev. 713, 724 (1985). And the size of a religious minority is irrelevant: “It is fundamentally

mistaken to suppose that religious liberty is only for

small religious minorities.” Douglas Laycock, Religious Liberty for Politically Active Minority Groups: A

Response to NeJaime and Siegel, 125 Yale L.J. Forum

369, 375 (2016) (emphasis added). The Constitution

does not delineate. And historically speaking,

“[e]fforts to suppress the practices of large religious

minorities create more social conflict than similar efforts to suppress small religious minorities.” Ibid.

According to Professor Laycock, cultural shifts over

the past half century have only exacerbated this trend.

Whether “discrete and insular” or “anonymous and

diffuse,” whether large or small—religious individuals

and organizations are much more in the minority today, particularly on social issues. For instance, “the

sexual revolution has swept away the former religious

majority on sexual matters.” Laycock, 125 Yale L.J.

Forum at 370. Thus today, “[r]eligious conservatives

make the individual-rights arguments of a minority

group because they are a minority group,” even if they

still sometimes have local majorities. Ibid. (emphasis

added).

More generally, in “contemporary America,” where

“a very diverse society * * * has long tended towards

theological liberalism,” religious “orthodoxy is apt to

be the stance of minorities that seek to preserve their

distinctive beliefs in the face of majoritarian pressures

to conform to more universal liberal views.” Ham-

27

burger, 90 Notre Dame L. Rev. at 1929. Thus ironically, “in [our] theologically liberal society, orthodoxy

is unorthodox.” Ibid.

As a result, “[o]n many issues, religious Americans

and their organizations increasingly cannot muster

[popular] support,” “[e]specially when they seek to protect relatively orthodox beliefs, or when they want to

adhere to religious duties that are not aligned with

popular liberal political views, religious Americans often find themselves alone.” Hamburger, 90 Notre

Dame L. Rev. at 1932-33. This creates a situation

where “[t]hose who are sailing with prevailing winds,

theological and political, do not suffer much from” being excluded by the administrative lawmaking process. Id. at 1933. But “[t]hose who are tacking against

prevailing winds * * * have much to fear.” Ibid.

*

*

*

Ultimately, however, the current state of affairs is

irrelevant to the enduring legal questions the Court

will face, because American society is enduringly pluralistic. Regardless of which way the prevailing political winds happen to be blowing at any given moment,

religious minorities will always be with us, and one or

more of them will be politically disfavored. At a particular point in American history the disfavored religious

minority of the day may be Catholics or Mormons or

Jews or Sikhs or Santeros or Jehovah’s Witnesses or

Evangelicals or Muslims. Someone will always be in

peril of being the target of unaccountable government

officials. The Court can go a long way towards ensuring that those religious minorities are protected by re-

28

quiring strict construction against delegation with respect to Executive Branch actions that burden religious exercise.

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

ERIC C. RASSBACH

Counsel of Record

DIANA M. VERM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1200 New Hampshire Ave.

NW, Suite 700

Washington, D.C. 20036

erassbach@becketlaw.org

(202) 955-0095

Counsel for Amicus Curiae

JUNE 2018