Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.

No. 17-71

IN THE

Supreme Court of the United States

WEYERHAEUSER COMPANY,

Petitioner,

v.

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C. EASTMAN

ANTHONY T. CASO

Center for Constitutional

Jurisprudence

c/o Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

877-855-3330

LOUIS A. CHAITEN

Counsel of Record

G. RYAN SNYDER

JONES DAY

North Point

901 Lakeside Avenue

Cleveland, OH 44114

216-586-3939

lachaiten@jonesday.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

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

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 6

I.

Chevron deference undermines the

separation of powers by allowing

unelected, unaccountable agencies to

wield vast amounts of legislative and

judicial power ..................................................... 6

A. Chevron’s delegation of policymaking

authority to administrative agencies

unlawfully places the power to make

law and the power to enforce it in the

same hands................................................... 6

B. Chevron’s delegation of interpretive

authority to administrative agencies

prevents courts from exercising their

judicial power to “say what the law

is.” ................................................................. 9

C. As the decision below shows, Chevron

deference encourages agencies to

rewrite even clear statutes, and

encourages courts to abdicate their

judicial role ................................................. 11

ii

TABLE OF CONTENTS

(continued)

Page

II.

In light of these constitutional problems,

the Court should overrule Chevron or—at

the very least—take steps to mitigate its

most pernicious effects ..................................... 16

A. Courts should not extend Chevron

deference without first performing a

rigorous statutory analysis ........................ 17

B. Courts should not extend Chevron

deference when the statute at issue

presses the limits of the

nondelegation doctrine .............................. 19

C. Courts should not extend Chevron

deference when the agency’s action

invokes the outer limits of Congress’s

enumerated powers .................................... 22

CONCLUSION ......................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon,

515 U.S. 687 (1995) .............................................. 25

Bowsher v. Synar,

478 U.S. 714 (1986) .............................................. 11

Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc.,

467 U.S. 837 (1984) .......................................passim

Christopher v. SmithKline

Beecham Corp.,

567 U.S. 142 (2012) ................................................ 2

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................ 3, 4, 5

Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S. Ct. 1225 (2015) .................................. 2, 8, 21

Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd.,

561 U.S. 477 (2010) ................................................ 3

Gonzales v. Raich,

545 U.S. 1 (2005) .................................................. 25

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .....................passim

Loving v. United States,

517 U.S. 748 (1996) ................................................ 2

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Marbury v. Madison,

5 U.S. 137 (1803) ............................................ 10, 11

Markle Interests, LLC v. U.S. Fish &

Wildlife Serv.,

827 F.3d 452 (5th Cir. 2016) .........................passim

Markle Interests, LLC v. U.S. Fish &

Wildlife Serv.,

848 F.3d 635 (5th Cir. 2017) .......................... 13, 14

Michigan v. EPA,

135 S. Ct. 2699 (2015) ...................................passim

Mistretta v. United States,

488 U.S. 361 (1989) ...................................... 3, 8, 26

Nat’l Cable & Telecomm. Ass’n v. Brand

X Internet Servs.,

545 U.S. 967 (2005) ............................................ 6, 9

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .............................................. 23

NLRB v. Noel Canning,

134 S. Ct. 2550 (2014) ............................................ 3

OfficeMax, Inc. v. United States,

428 F.3d 583 (6th Cir. 2005) ................................ 11

People for Ethical Treatment of Prop.

Owners v. U.S. Fish & Wildlife Serv.,

852 F.3d 990 (10th Cir. 2017) .............................. 25

Perez v. Mortg. Bankers Ass’n,

135 S. Ct. 1199 (2015) ............................ 2, 5, 11, 16

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Rancho Viejo, LLC v. Norton,

334 F.3d 1158 (D.C. Cir. 2003) ............................ 24

Smiley v. Citibank (S. Dakota), N.A.,

517 U.S. 735 (1996) .............................................. 19

Solid Waste Agency of N. Cook Cty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .................................. 22, 23, 26

Stern v. Marshall,

564 U.S. 462 (2011) .......................................... 3, 11

Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012) .............................................. 18

United States v. Lopez,

514 U.S. 549 (1995) .............................................. 23

United States v. Mead Corp.,

533 U.S. 218 (2001) ........................................ 4, 6, 7

United States v. Morrison,

529 U.S. 598 (2000) ........................................ 23, 24

Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014) .................................... 14, 15

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. art. I, § 1 ................................................... 2

U.S. Const. art. I, § 8, cl. 3 ........................................ 23

U.S. Const. art. II, § 1, cl. 1 ......................................... 2

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Const. art. III, § 1 ................................................ 2

5 U.S.C. § 706 ........................................................ 8, 10

16 U.S.C. § 1532 ............................................ 13, 15, 25

16 U.S.C. § 1533 .................................................. 13, 16

16 U.S.C. § 1536 ........................................................ 25

16 U.S.C. § 1538 ........................................................ 25

OTHER AUTHORITIES

50 C.F.R. § 17.3.......................................................... 25

77 Fed. Reg. 35118 .................................................... 24

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) ................................. 12

Ronald A. Cass,

Vive La Deference?: Rethinking the

Balance Between Administrative and

Judicial Discretion,

83 Geo. Wash. L. Rev. 1294 (2015) ................ 20, 21

John F. Duffy,

Administrative Common Law in

Judicial Review,

77 Tex. L. Rev. 113 (1998).................................... 10

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Charles R. Kesler,

Separation of Powers and the

Administrative State, in The

Imperial Congress: Crisis in the

Separation of Powers (Gordon S.

Jones & John A. Marini eds. 1989)........................ 1

Raymond M. Kethledge,

Ambiguity and Agency Cases:

Reflections After (Almost) Ten Years

on the Bench, 70 Vand. L. Rev. En

Banc 315 (2017) .................................... 7, 13, 16, 18

John A. Marini,

The Politics of Budget Control:

Congress, the Presidency, and the

Growth of the Administrative State

(1992) ...................................................................... 1

Thomas W. Merrill,

Rethinking Article I, Section 1: From

Nondelegation to Exclusive

Delegation,

104 Colum. L. Rev. 2097 (2004) ..................... 19, 20

R.J. Pestritto,

The Progressive Origins of the

Administrative State: Wilson,

Goodnow, and Landis,

Soc. Phil. & Pol’y, Jan. 2007, at 16 ........................ 2

Eric A. Posner & Cass R. Sunstein,

Chevronizing Foreign Relations Law,

116 Yale L.J. 1170 (2007) ...................................... 7

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

S. Ct. Rule 37.3 ............................................................ 1

S. Ct. Rule 37.6 ............................................................ 1

Antonin Scalia,

Judicial Deference to Administrative

Interpretations of Law, 1989 Duke

L.J. 511 (1989) .................................................. 7, 19

Antonin Scalia & Bryan A. Garner,

Reading Law 134 (2012) ...................................... 21

Patrick J. Smith,

Chevron’s Conflict with the

Administrative Procedure Act,

32 Va. Tax Rev. 813 (2013) .................................. 18

The Federalist No. 47

(C. Rossiter ed. 1961) ............................................. 3

The Federalist No. 78

(Clinton Rossiter ed., 1961) ................................. 10

INTEREST OF THE AMICUS CURIAE

The Center for Constitutional Jurisprudence is

the public interest law arm of the Claremont

Institute, whose mission is to restore the principals

of the American Founding to their rightful,

preeminent authority in our national life. The

Center advances that mission by working to restore

the Constitution’s structural protections of our

liberty, such as the separation of powers and the

limits inherent in the grant of specifically

enumerated powers. 1

This Court’s decision in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), has eroded these structural protections

by allowing unelected, unaccountable agencies to

wield vast amounts of legislative and judicial power.

As the decision below demonstrates, the result of

Chevron deference is a titanic administrative state

that is inconsistent with the Constitution’s

separation of powers.

The Institute’s senior scholars have been at the

forefront of addressing the conflict between the

modern administrative state and the separation of

powers in their academic writings. See, e.g., John A.

Marini, The Politics of Budget Control: Congress, the

Presidency, and the Growth of the Administrative

State (1992); Charles R. Kesler, Separation of

1 All parties have granted blanket consent to the filing of

amicus curiae briefs. See Rule 37.3(a). No counsel for a party

authored this brief in whole or in part, and no person or entity

other than the Center, its members, or its counsel made a

monetary contribution intended to fund the brief’s preparation or

submission. See Rule 37.6.

2

Powers and the Administrative State, in The

Imperial Congress: Crisis in the Separation of

Powers (Gordon S. Jones & John A. Marini eds.

1989); see also R.J. Pestritto, The Progressive

Origins of the Administrative State: Wilson,

Goodnow, and Landis, Soc. Phil. & Pol’y, Jan. 2007,

at 16. And the Center has been at the forefront of

raising these issues as amicus curiae in several

cases before this Court, including Dep’t of Transp. v.

Ass’n of Am. R.R., 135 S. Ct. 1225 (2015); Perez v.

Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015);

Michigan v. EPA, 135 S. Ct. 2699 (2015); and

Christopher v. SmithKline Beecham Corp., 567 U.S.

142 (2012). Given the Center’s expertise in these

matters, the Center believes that the Court would

benefit from considering its views.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Constitution identifies three types of

governmental power, and vests them in three

different branches of government. Specifically, the

Constitution provides that “[a]ll legislative Powers

herein granted shall be vested in a Congress of the

United States,” Art. I, § 1; the “executive Power shall

be vested in a President of the United States,” Art.

II, § 1, cl. 1; and the “judicial Power of the United

States, shall be vested in one supreme Court, and in

such inferior Courts as the Congress may from time

to time ordain and establish,” Art. III, § 1.

These grants of power are exclusive—a branch

can neither “arrogate power to itself” nor “impair

another [branch] in the performance of its

constitutional duties.” Loving v. United States, 517

3

U.S. 748, 757 (1996). Accordingly, this Court has

invalidated encroachments on the legislative power,

see, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550

(2014); the executive power, see, e.g., Free Enter.

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

477 (2010); and the judicial power, see, e.g., Stern v.

Marshall, 564 U.S. 462 (2011).

The Framers understood that this “separation of

governmental powers into three coordinate

Branches is essential to the preservation of liberty.”

Mistretta v. United States, 488 U.S. 361, 380 (1989)

(emphasis added). As James Madison explained,

“[n]o political truth is certainly of greater intrinsic

value, or is stamped with the authority of more

enlightened patrons of liberty” than the separation

of powers. The Federalist No. 47, at 298 (C. Rossiter

ed. 1961). Indeed, in Madison’s view, the

“accumulation of all powers, legislative, executive,

and judiciary, in the same hands, … may justly be

pronounced the very definition of tyranny.” Id.

Judging by that standard, the modern

administrative state has become far more of a threat

to the separation of powers than the Framers could

have imagined. Administrative agencies routinely

“exercise legislative power, by promulgating

regulations with the force of law; executive power,

by 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 v. FCC, 569

U.S. 290, 312–13 (2013) (Roberts, C.J., dissenting).

Moreover, the “accumulation of these powers in the

same hands is not an occasional or isolated exception

to the constitutional plan; it is a central feature of

4

modern American government.” Id. at 313. This

combination of legislative, executive, and judicial

power has not yet reached “the very definition of

tyranny,” but “the danger posed by the growing

power of the administrative state cannot be

dismissed.” Id. at 315.

This Court’s decision in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), exacerbates these problems. Chevron

requires courts “to accept an agency’s reasonable

resolution of an ambiguity in a statute that the

agency administers.” Michigan v. EPA, 135 S. Ct.

2699, 2707 (2015). This rule is based on a

presumption of congressional intent: namely, that

“Congress would expect the agency to be able to

speak with the force of law when it addresses

ambiguity in [a] statute,” even if “Congress did not

actually have an intent as to a particular result.”

United States v. Mead Corp., 533 U.S. 218, 229

(2001).

But Chevron’s presumption about congressional

intent “is no more than a fiction—and one that

requires a pretty hefty suspension of disbelief at

that.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142,

1153 (10th Cir. 2016) (Gorsuch, J., concurring). And

Chevron distorts the separation of powers by

permitting administrative agencies “to swallow

huge amounts of core judicial and legislative

power … in a way that seems more than a little

difficult to square with the Constitution of the

framers’ design.” Id. at 1149. By consolidating

legislative, executive, and judicial power in the same

hands, Chevron deference is undoubtedly a

“powerful weapon in an agency’s regulatory

5

arsenal.” City of Arlington, 569 U.S. at 314 (Roberts,

C.J., dissenting).

The decision below illustrates the corrosive effect

that Chevron has on the separation of powers.

Emboldened by Chevron, the Fish and Wildlife

Service rewrote clear statutory text to give itself the

power to designate as “critical habitat” virtually any

part of the United States. The Fifth Circuit panel

then abdicated its judicial responsibility to “say

what the law is,” instead deferring to the Service’s

interpretation without doing any meaningful

analysis of the statutory text. The result is an

administrative agency wielding vast amounts of

legislative and executive power, without the

meaningful check of judicial review.

In recent years, multiple justices have raised

“serious questions about the constitutionality of [the

Court’s] broader practice of deferring to agency

interpretations of federal statutes.” Michigan, 135 S.

Ct. at 2712–14 (Thomas, J., concurring); accord

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1211

(2015) (Scalia, J., concurring in the judgment);

Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J.,

concurring). The Center believes that the Court

should address these questions and hold that

Chevron deference violates the separation of powers.

At the very least, however, the Center believes that

the Court should take steps to mitigate Chevron’s

most pernicious effects.

6

ARGUMENT

I.

Chevron

deference

undermines

the

separation of powers by allowing unelected,

unaccountable agencies to wield vast

amounts of legislative and judicial power.

Chevron requires courts “to accept an agency’s

reasonable resolution of an ambiguity in a statute

that the agency administers.” Michigan, 135 S. Ct.

at 2707. This rule is based on the presumption that

“Congress would expect the agency to be able to

speak with the force of law when it addresses

ambiguity in [a] statute,” even if “Congress did not

actually have an intent as to a particular result.”

Mead, 533 U.S. at 229.

So understood, Chevron undermines the

separation of powers in two ways. First, by giving

agencies the power to speak with the “force of law,”

Chevron improperly transfers legislative power to

those agencies. Second, by requiring courts to defer

to an agency’s interpretation of the law, Chevron

improperly transfers judicial power to those same

agencies.

A. Chevron’s delegation of policymaking

authority to administrative agencies

unlawfully places the power to make law

and the power to enforce it in the same

hands.

In Chevron, this Court held that “ambiguities in

statutes within an agency’s jurisdiction to

administer are delegations of authority to the

agency to fill the statutory gap in reasonable

fashion.” Nat’l Cable & Telecomm. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 980 (2005). When

7

filling those gaps, agencies generally ask whether

“there is a colorable interpretation that will support

the policy result that the agency wants to reach,”

rather than searching for “the best objective

interpretation of the statute.” Raymond M.

Kethledge, Ambiguity and Agency Cases: Reflections

After (Almost) Ten Years on the Bench, 70 Vand. L.

Rev. En Banc 315, 323 (2017). Thus, Chevron

presumes that, when a statute contains an

ambiguity, Congress intended to give the agency the

power to make policy with “the force of law.” Mead,

533 U.S. at 229.

As an initial matter, Chevron did not identify any

evidence that Congress actually intends to use

statutory ambiguity as a way to delegate

policymaking authority to agencies. And it would be

difficult, if not impossible, to find such evidence

because “Congress hardly ever states its

instructions on the deference question with clarity.”

Eric A. Posner & Cass R. Sunstein, Chevronizing

Foreign Relations Law, 116 Yale L.J. 1170, 1194

(2007). As a result, Chevron relies on a “fictional”

intent, rather than one based on objective evidence,

such as the statutory text. Antonin Scalia, Judicial

Deference to Administrative Interpretations of Law,

1989 Duke L.J. 511, 517 (1989).

In addition, “Chevron’s inference about hidden

congressional intentions seems belied by the

intentions Congress has made textually manifest.”

Gutierrez-Brizuela, 834 F.3d at 1153 (Gorusch, J.,

concurring). For example, in the Administrative

Procedure Act, Congress expressly provided that a

“reviewing court shall decide all relevant questions

of law” and “interpret constitutional and statutory

8

provisions.” 5 U.S.C. § 706. But Congress said

nothing—not a word—about its supposed intent to

delegate policymaking authority to agencies. Thus,

“Chevron’s claim about legislative intentions is no

more than a fiction.” Gutierrez-Brizuela, 834 F.3d at

1153 (Gorsuch, J., concurring).

Even if the evidence supported Chevron’s claim

about congressional intent, the delegation of

policymaking authority to agencies would violate the

separation of powers. When the Constitution was

ratified, the public understood that “the formulation

of generally applicable rules of private conduct” was

part of the legislative power. Dep’t of Transp. v. Ass’n

of Am. R.R., 135 S. Ct. 1225, 1242 (2015) (Thomas,

J., concurring in the judgment); accord GutierrezBrizuela, 834 F.3d at 1149 (Gorsuch, J., concurring).

As a result, Chevron’s transfer of policymaking

authority to agencies “permit[s] a body other than

Congress to perform a function that requires an

exercise of the legislative power.” Michigan, 135 S.

Ct. at 2713 (Thomas, J., concurring).

To be sure, this Court has held that the delegation

of policymaking authority violates the Constitution

only if Congress fails to provide “an intelligible

principle to which the person or body authorized to

exercise the delegated authority is directed to

conform.” Mistretta, 488 U.S. at 372. But it is “no

small question whether Chevron can clear [that

standard].” Gutierrez-Brizuela, 834 F.3d at 1154

(Gorsuch, J., concurring). As then-Judge Gorsuch

explained, “if an agency can enact a new rule of

general applicability affecting huge swaths of the

national economy one day and reverse itself the next

(and that is exactly what Chevron permits, see 467

9

U.S. at 857–59), you might be forgiven for asking:

where’s the ‘substantial guidance’ in that?” Id. “And

if an agency can interpret the scope of its statutory

jurisdiction one way one day and reverse itself the

next (and that is exactly what City of Arlington’s

application of Chevron says it can), you might well

wonder: where are the promised ‘clearly delineated

boundaries’ of agency authority?” Id. at 1154–55.

In practice, Chevron gives agencies the power to

speak with the “force of law” on matters of policy

without even the slightest guidance from Congress.

This Court should therefore hold that Chevron

unconstitutionally transfers legislative power from

Congress to administrative agencies.

B. Chevron’s delegation of interpretive

authority to administrative agencies

prevents courts from exercising their

judicial power to “say what the law is.”

In Chevron, this Court held that, if an agency’s

interpretation of an ambiguous statute is

reasonable, courts must “accept the agency’s

construction of the statute, even if the agency’s

reading differs from what the court believes is the

best statutory interpretation.” Brand X, 545 U.S. at

980. Thus, Chevron presumes that, when a statute

contains an ambiguity, Congress intended to make

the agency the “authoritative interpreter” of that

statute. Id. at 983.

Once again, Chevron did not identify any evidence

that Congress actually intends to use statutory

ambiguity in this way. And Chevron actually ignored

several provisions that flatly contradicted this

presumption.

10

For example, in a provision titled “Scope of

Review,” the Administrative Procedure Act provides

that “the reviewing court shall decide all relevant

questions of law,” 5 U.S.C. § 706, which “suggests de

novo review of statutory issues.” John F. Duffy,

Administrative Common Law in Judicial Review, 77

Tex. L. Rev. 113, 194 (1998). In addition, the Act

provides that “the reviewing court shall … interpret

constitutional and statutory provisions.” 5 U.S.C.

§ 706. That “places the court’s duty to interpret

statutes on an equal footing with its duty to

interpret the Constitution,” which courts always

review de novo. Duffy, supra at 194. And the Act

expressly provides that courts should apply

deferential standards of review to certain

questions—“just none that apply to review of legal

questions.” Id. Chevron did not reconcile its

presumption about congressional intent with these

provisions; indeed, Chevron failed to mention them

at all.

Even if Congress wanted to make agencies the

“authoritative interpreter” of ambiguous statutes,

the delegation of interpretive authority to agencies

would violate the separation of powers. The Framers

understood that the “interpretation of the laws is the

proper and peculiar province of the courts” and that

it “belongs to [judges] to ascertain ... the meaning of

any particular act proceeding from the legislative

body.” The Federalist No. 78, at 467 (Clinton

Rossiter ed., 1961). And of course, this Court has

repeated time and again that it is “emphatically the

province and duty of the judicial department to say

what the law is.” Marbury v. Madison, 5 U.S. 137,

177 (1803). But Chevron forces judges “to abandon

11

what they believe is the best reading of an

ambiguous statute in favor of an agency’s

construction.” Michigan, 135 S. Ct. at 2712 (Thomas,

J., concurring) (quotation marks omitted). Thus,

Chevron “wrests from Courts the ultimate

interpretative authority to ‘say what the law is,’ and

hands it over to the Executive.” Id. (quoting

Marbury, 5 U.S. at 177).

That transfer of core judicial power to

administrative agencies fails for at least two

reasons. First, Congress does not have the power to

authoritatively interpret the laws, so “it cannot

delegate that power to an agency.” Perez, 135 S. Ct.

at 1224 (Thomas, J., concurring in the judgment);

accord Bowsher v. Synar, 478 U.S. 714, 726 (1986).

And second, Article III prevents Congress from

stripping the courts of the judicial power and

transferring it to another branch. Stern, 564 U.S. at

484. This Court should therefore hold that Chevron

unconstitutionally transfers judicial power from the

courts to administrative agencies.

C. As the decision below shows, Chevron

deference encourages agencies to rewrite

even clear statutes, and encourages

courts to abdicate their judicial role.

In theory, courts extend Chevron deference only

when a statute is ambiguous. And “the question

whether a statute is ambiguous” is supposed to

“arise[] after, not before, a court applies traditional

canons of interpretation.” OfficeMax, Inc. v. United

States, 428 F.3d 583, 592 (6th Cir. 2005) (Sutton, J.).

As this Court has explained, “[i]f the intent of

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

12

the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 842–43.

But that is not the way it works in practice.

Chevron encourages agencies to rewrite even clear

statutes. Agencies know that “their interpretive

decisions will be reviewed under a deferential

version of Chevron”; thus, they feel “free to disregard

congressional intent and impose their own policy

views even when it is possible to have at least a good

sense of how Congress would have wanted the

agency to act.” 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, 784 (2010).

Likewise, Chevron encourages judges to bless an

agency’s rewriting of clear statutory text. As Judge

Kethledge has explained, interpreting complex

statutes is often similar to walking through a cedar

swamp:

The statute presents a dense undergrowth of

sections and subsections and subsections

within those. The answer to the specific

question in the case might lie somewhere in

those sections and subsections, but working

through them is hard. And meanwhile the

agency is there to offer a path already

cleared. … And so in agency cases it often

seems that the court pauses only briefly at

step one, without much effort to hack

through the undergrowth, before proceeding

straightaway down the cleared path of step

two.

13

Kethledge, supra at 324.

This case exemplifies those corrosive effects. First,

the Fish and Wildlife Service rewrote key parts of

the Endangered Species Act to impose its own policy

views. And second, the Fifth Circuit panel extended

Chevron deference to the Service’s manipulation of

the Act—without any meaningful analysis of the

statutory text.

As relevant here, the Endangered Species Act

provides that, after determining that a species is

endangered, the Service must “designate any

habitat of such species which is then considered to

be critical habitat.” 16 U.S.C. § 1533(a)(3)(A)(i). The

Act also provides that the Service cannot designate

“specific areas outside the geographical area

occupied by the species” unless that area is

“essential for the conservation of the species.” Id.

§ 1532(5)(A)(ii).

Even a brief review of these provisions would have

made clear that land can be designated as “critical

habitat” only if it is, in fact, “habitat.” Id.

§ 1533(a)(3)(A)(i); see Markle Interests, LLC v. U.S.

Fish & Wildlife Serv., 848 F.3d 635, 640 (5th Cir.

2017) (Jones, J., dissenting from denial of rehearing

en banc). Likewise, a brief review of the Act would

have made clear that land cannot be “essential for

the conservation of the species” unless it plays some

role in the conservation of that species. 16 U.S.C.

§ 1532(5)(A) (emphasis added); see Markle Interests,

LLC v. U.S. Fish & Wildlife Serv., 827 F.3d 452,

482–91 (5th Cir. 2016) (Owens, J., dissenting).

Emboldened by Chevron, however, the Service

designated Unit 1 as critical habitat—even though

14

the dusky gopher frog did not live there, could not

live there, and almost certainly would not live there

in the future. That designation effectively deleted

the words “habitat” and “essential for the

conservation of the species” from the Act.

Moreover, the Service’s deletion of these words led

to absurd results. The Service’s interpretation

meant that land could be designated as “critical

habitat” even though it was uninhabitable—what

Judge Jones dubbed “the oxymoron of uninhabitable

critical habitat.” Markle, 848 F.3d at 644 (Jones, J.,

dissenting from denial of rehearing en banc). And

the Service’s interpretation meant that land could be

“essential for the conservation” of the dusky gopher

frog even though the frog would die if it was moved

there. Markle, 827 F.3d at 480 (Owens, J.,

dissenting).

To mitigate this absurdity, the Service imposed

two limitations on its reading of the Act—namely,

that Unit 1 contained at least one feature that was

critical to the frog’s survival, and that this critical

feature was rare and difficult to reproduce. See id. at

471, 472 n.20 (majority op.). Neither of these

limitations, however, were grounded in the

statutory text. See Markle, 848 F.3d at 651 (Jones,

J., dissenting from denial of rehearing en banc).

Under this Court’s precedents, the Fifth Circuit

panel should have struck down the Service’s

rewriting of the Act. It is a “core administrative-law

principle that an agency may not rewrite clear

statutory terms to suit its own sense of how the

statute should operate.” Util. Air Regulatory Grp. v.

EPA, 134 S. Ct. 2427, 2446 (2014). Yet that is

15

precisely what the Service did here—it rewrote the

critical-habitat provisions so it could regulate land

that is uninhabitable by the dusky gopher frog.

Moreover, the Service’s invention of two atextual

limits on its own absurd reading of the statute

“should have alerted [the Service] that it had taken

a wrong interpretive turn.” Id. Indeed, “[a]gencies

are not free to adopt unreasonable interpretations of

statutory provisions and then edit other statutory

provisions to mitigate the unreasonableness.” Id.

(ellipsis and quotation marks omitted).

Although the Fifth Circuit panel should have

invalidated the Service’s interpretation, the panel

deferred to that interpretation under Chevron

without doing any meaningful analysis of the

statutory text. For example, take the panel’s

discussion of the word “essential.” The panel first

quoted the relevant statutory provision, which

provides that the Service cannot designate

unoccupied areas as critical habitat unless they are

“essential for the conservation of the species.”

Markle, 827 F.3d at 464 (quoting 16 U.S.C.

§ 1532(5)(A)(ii)). The panel then noted that Congress

had not defined the word “essential.” Id. Finally,

without doing any further analysis of the statute’s

text, the panel concluded that Congress must have

“delegated to the Secretary the authority to make

that determination.” Id. As the panel later put it:

“Congress has not defined the word ‘essential’ in the

[Endangered Species Act]. Hence the Service has the

authority to interpret the term.” Id. at 467.

The panel’s analysis of the word “habitat” was

even less rigorous. The panel first acknowledged the

petitioners’ argument that “Unit 1 is not currently

16

habitable by the frog.” Id. at 468. The panel then

dismissed the argument, stating that “[t]here is no

habitability requirement in the text of the

[Endangered Species Act].” Id. But the panel did not

even mention 16 U.S.C. § 1533(a)(3)(A)(i), which

provides that, after determining that a species is

endangered, the Service must “designate any

habitat of such species which is then considered to

be critical habitat.” (Emphasis added.) Nor did the

panel attempt to define the word “habitat” or

conclude that the word was ambiguous, before

deferring to the Service’s interpretation.

In short, the Fifth Circuit panel took one look at

the “dense undergrowth of sections and subsections”

in the Endangered Species Act, and headed straight

for the “path already cleared” by the Service.

Kethledge, supra at 324. That path may have been

easier to walk down, but the Constitution’s

separation of powers requires more.

II. In light of these constitutional problems, the

Court should overrule Chevron or—at the

very least—take steps to mitigate its most

pernicious effects.

Over the past few years, more than one justice has

raised “serious questions about the constitutionality

of [the Court’s] broader practice of deferring to

agency interpretations of federal statutes.”

Michigan, 135 S. Ct. at 2712–14 (Thomas, J.,

concurring); accord Perez, 135 S. Ct. at 1211 (Scalia,

J., concurring in the judgment); Gutierrez-Brizuela,

834 F.3d at 1149 (Gorsuch, J., concurring). The

Center believes that the Court should address those

questions and hold that Chevron deference violates

17

the separation of powers. At the very least, however,

the Court should take steps to mitigate Chevron’s

most pernicious effects.

This case offers the Court the opportunity to take

three such steps. First, the Court should reiterate

that, before extending Chevron deference, courts

must perform a rigorous analysis that uses all the

traditional tools of statutory interpretation. Second,

the Court should announce that Chevron deference

does not extend to statutes that press the limits of

the nondelegation doctrine. And third, the Court

should reiterate that Chevron deference does not

extend to agency actions that invoke the outer limits

of Congress’s enumerated powers.

A. Courts should not extend Chevron

deference without first performing a

rigorous statutory analysis.

This case exemplifies one of Chevron’s most

pernicious effects—the encouragement of courts to

bless an agency’s rewriting of clear statutory text.

See supra Part I.C. The Court should make clear

that Chevron does not permit such an abdication of

the judicial role.

This Court has previously explained that, before

extending Chevron deference, courts must use all

the “traditional tools of statutory construction” to

determine whether “Congress had an intention on

the precise question at issue.” Chevron, 467 U.S. at

843 n.9. If so, “that intention is the law and must be

given effect.” Id.

Despite these instructions, many courts—like the

Fifth Circuit panel here—“pause[] only briefly at

step one, without much effort to hack through the

18

undergrowth, before proceeding straightaway down

the cleared path of step two.” Kethledge, supra at

324. Such an approach necessarily increases the

number of times that courts defer to an agency’s

interpretation, and therefore exacerbates Chevron’s

violation of the separation of powers.

To address this problem, the Court should

reiterate that courts must perform a much more

rigorous statutory analysis before extending

Chevron deference. For example, the Fifth Circuit

panel mistakenly believed that Chevron deference

was appropriate simply because Congress left a

word undefined. See Markle, 827 F.3d at 464, 467.

The Court should correct that mistake, and reiterate

that, “[w]hen a term goes undefined in a statute,”

courts must first “give the term its ordinary

meaning” rather than jumping straight to Chevron.

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560,

566 (2012).

In addition, the Court should explain that

“Chevron does not require anything like complete

certainty about Congressional intent in order to

decide an issue at step one.” Patrick J. Smith,

Chevron’s Conflict with the Administrative

Procedure Act, 32 Va. Tax Rev. 813, 839 (2013). Of

course, it is impossible to define precisely when a

statute is ambiguous enough to require Chevron

deference. But that does not mean that the Court

cannot provide more concrete guidance. For

example, the Court should clarify that a statute like

the Endangered Species Act is not ambiguous simply

because it “is complicated, even very complicated.”

Kethledge, supra at 319.

19

As Justice Scalia explained, a judge “who finds

more often … that the meaning of a statute is

apparent from its text and from its relationship with

other laws, thereby finds less often that the

triggering requirement for Chevron deference

exists.” Scalia, supra at 521. Because Justice Scalia

took that approach, it was “relatively rare that

Chevron … require[d] [him] to accept an

interpretation which, though reasonable, [he] would

not personally adopt.” Id. This Court should

encourage lower courts to take the same approach.

Doing so would not cure Chevron’s violations of the

separation of powers, but it would encourage courts

to rigorously use their judicial power to “say what

the law is,” rather than outsourcing that task to

administrative agencies.

B. Courts should not extend Chevron

deference when the statute at issue

presses the limits of the nondelegation

doctrine.

This case also exemplifies how the combination of

Chevron deference and a permissive nondelegation

doctrine can seriously undermine the separation of

powers.

Chevron is built on two closely related

presumptions. First, when a statute is ambiguous,

Congress wants the agency “to possess whatever

degree of discretion the ambiguity allows.” Smiley v.

Citibank (S. Dakota), N.A., 517 U.S. 735, 740–41

(1996). And second, “the more discretion Congress

gives the agency, the more deference courts should

give to agency interpretations of law.” Thomas W.

Merrill, Rethinking Article I, Section 1: From

20

Nondelegation to Exclusive Delegation, 104 Colum.

L. Rev. 2097, 2172 (2004). In combination, these two

presumptions mean that, “the more discretionary

(less clear) the statute, the more power flows to the

agency.” Id. at 2181 n.292.

In theory, the nondelegation doctrine would seem

to place a limit on these presumptions. After all, the

“premise of the nondelegation doctrine … is that the

more discretion Congress gives the agency, the

closer Congress comes to acting unconstitutionally,

and hence the more important it becomes that the

courts either supply a narrowing construction of the

statute or remand the matter to Congress.” Id. at

2172. As a practical matter, however, this Court has

“almost never felt qualified to second-guess

Congress regarding the permissible degree of policy

judgment that can be left to those executing or

applying the law.” Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 474–75 (2001) (quotation marks

omitted). Consequently, both Chevron and the

nondelegation doctrine shift power in the same

direction—toward the administrative state. The

result is a “potent mix” of legislative, executive, and

judicial power. Gutierrez-Brizuela, 834 F.3d at 1155

(Gorsuch, J., concurring).

Ideally, the Court would address this problem by

overruling the Chevron doctrine and reinvigorating

the nondelegation doctrine. At a minimum, however,

the Court should refuse to apply Chevron and the

permissive nondelegation doctrine at the same time.

When Congress delegates a large amount of

policymaking authority to an agency, “how much

leeway judges give to administrative exercises of

discretion is critically important.” Ronald A. Cass,

21

Vive La Deference?: Rethinking the Balance Between

Administrative and Judicial Discretion, 83 Geo.

Wash. L. Rev. 1294, 1298–99 (2015). Indeed, the

standard of review is “effectively the last

opportunity for law to constrain official power.” Id.

Thus, when a statute gives largely unbridled

discretion to an agency, courts should refuse to defer

to the agency’s interpretation of that statute.

Instead, courts should exercise the full scope of their

judicial power to seek the statute’s objective

meaning.

To be sure, some statutes provide little to no

guidance about which policy goals the agency should

pursue, making it difficult, if not impossible, to

determine the statute’s objective meaning. See Dep’t

of Transp., 135 S. Ct. at 1251 (Thomas, J.,

concurring in the judgment) (collecting cases in

which Congress provided a minimal degree of

specificity). But that does not mean that courts

should defer to the agency’s exercise of policymaking

authority. On the contrary, the court’s duty in such

a case is to refuse to enforce the statute on the

ground that “[a]n unintelligible text is inoperative.”

Antonin Scalia & Bryan A. Garner, Reading Law

134 (2012). Congress would then have the

opportunity to clarify the statute—thus preserving

our system of separated powers.

This case provides an apt example of this problem.

In the Service’s view, the Endangered Species Act

provides that “virtually any part of the United

States could be designated as ‘critical habitat’ for

any given endangered species so long as the property

could be modified in a way that would support

introduction and subsequent conservation of the

22

species on it.” Markle, 827 F.3d at 483 (Owens, J.,

dissenting). For the reasons explained in Part I.C,

the Center believes that the Act’s grant of authority

is much more limited. If the Service’s view is correct,

however, then the Act would give the Service

“unfettered discretion to designate land as ‘critical

habitat’ so long as scientists agree that

uninhabitable land can be transformed into

habitat.” Id. at 488. That is a staggering amount of

discretion, and it is inconsistent with the separation

of powers. As a result, the Court should refuse to

extend Chevron deference and, if necessary, refuse

to enforce the Act as unintelligible.

C. Courts should not extend Chevron

deference when the agency’s action

invokes the outer limits of Congress’s

enumerated powers.

Finally, this case exemplifies the danger of

allowing an agency to stretch a statute beyond the

limits of Congress’s enumerated powers. As

explained below, the application of the Endangered

Species Act to noncommercial, wholly intrastate

species such as the dusky gopher frog raises

substantial constitutional questions about the scope

of the Commerce Clause. The Service then extended

the Act’s reach by designating Unit 1 as “critical

habitat,” even though the frog does not and cannot

live there. That unlawful extension does not deserve

Chevron deference.

When an agency’s interpretation of a statute

“invokes the outer limits of Congress’ power,” this

Court “expect[s] a clear indication that Congress

intended that result.” Solid Waste Agency of N. Cook

23

Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172

(2001). That clear-statement rule is based on the

Court’s “prudential desire not to needlessly reach

constitutional issues and [its] assumption that

Congress does not casually authorize administrative

agencies to interpret a statute to push the limit of

congressional authority.” Id. at 172–73. Thus, when

an agency’s interpretation of a statute would raise

“serious constitutional problems,” this Court “will

construe the statute to avoid such problems unless

such construction is plainly contrary to the intent of

Congress.” Id. at 173 (quotation marks omitted). In

doing so, the Court will “not extend Chevron

deference” to the agency’s interpretation. Id. at 172.

This case involves, at the very least, the outer

limits of Congress’s power “[t]o regulate Commerce

with foreign Nations and among the several States,

and with the Indian Tribes.” U.S. Const. art. I, § 8,

cl. 3. Under this Court’s precedents, the Commerce

Clause allows Congress to regulate “the use of the

channels of interstate commerce,” “persons or things

in interstate commerce,” and “those activities that

substantially affect interstate commerce.” United

States v. Morrison, 529 U.S. 598, 609 (2000).

Although this power is expansive, it remains

“subject to outer limits.” United States v. Lopez, 514

U.S. 549, 557 (1995). For example, the Commerce

Clause applies only to pre-existing activity. See Nat’l

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 550–

51 (2012) (opinion of Roberts, C.J.); id. at 649–50

(Scalia, Kennedy, Thomas, and Alito, JJ.,

dissenting). And that pre-existing activity must be

“economic.” Lopez, 514 U.S. at 559–60.

24

Here, the Service’s designation of Unit 1 as

“critical habitat” raises substantial constitutional

questions regarding Congress’s commerce power.

The designation of Unit 1 plainly does not count as

a regulation of “the use of the channels of interstate

commerce.” Morrison, 529 U.S. at 609. And the

designation of Unit 1 cannot be sustained as a

regulation of “things in interstate commerce.” Id. As

the Service acknowledges, the dusky gopher frog “is

currently known to occur only within the State of

Mississippi,” and has no economic value. 77 Fed.

Reg. 35118, 35120, 35127. Unsurprisingly,

therefore, there is no commerce involving the frogs.

The Fifth Circuit panel upheld the Service’s

designation, however, as a regulation of activities

that substantially affect interstate commerce.

Markle, 827 F.3d at 475. But the panel’s analysis

was misguided at best.

The panel framed the question presented as

“whether the federal action substantially affects

interstate commerce.” 827 F.3d at 475 (emphasis

added) (brackets and quotation marks omitted). To

answer that question, the panel analyzed whether

“the designation of Unit 1” was “economic or

commercial in nature.” Id. at 476 (emphasis added).

But the issue was not “whether the challenged

regulation

substantially

affects

interstate

commerce”; it was “whether the activity being

regulated does so.” Rancho Viejo, LLC v. Norton, 334

F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J.,

dissenting from denial of rehearing en banc)

(emphasis added). Thus, the panel never addressed

the relevant question—whether the activity being

25

regulated substantially affects interstate commerce.

And the answer to that question is far from clear.

To take one example, it is not clear what activity

the Service was regulating when it designated Unit

1 as critical habitat. In most cases involving the

Endangered Species Act, the regulated activity at

issue is the “tak[ing] of any endangered species

without a permit or other authorization.” See People

for Ethical Treatment of Prop. Owners v. U.S. Fish

& Wildlife Serv., 852 F.3d 990, 995 (10th Cir. 2017)

(citing 16 U.S.C. § 1538(a)(1)(B)). But here, there are

no dusky gopher frogs to “take” in Unit 1—the frogs

do not and cannot live there.

To be sure, the word “take” includes the concept of

“harm,” 16 U.S.C. § 1532(19), which the Secretary of

the Interior has interpreted as including “significant

habitat modification or degradation where it

actually kills or injures wildlife by significantly

impairing essential behavioral patterns, including

breeding, feeding or sheltering,” 50 C.F.R. § 17.3. See

Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon, 515 U.S. 687, 703 (1995). But the

Service has not identified any activity that “actually

kills or injures” the dusky gopher frog because, once

again, the frog does not and cannot live in Unit 1.

Perhaps the Service would say that it is

regulating any activities that would trigger the Act’s

consultation process, see 16 U.S.C. § 1536, and that

regulating those activities is an “essential part[] of a

larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the

intrastate activity were regulated.” Gonzales v.

Raich, 545 U.S. 1, 24–25 (2005) (quotation marks

26

omitted). But it is difficult to see how the designation

of Unit 1 is “essential” to the Endangered Species

Act, given that the dusky gopher frog does not and

cannot live there.

Because “the precise object or activity that, in the

aggregate

substantially

affects

interstate

commerce” is “not clear,” the Service’s designation of

Unit 1 raises “significant constitutional questions.”

Solid Waste Agency, 531 U.S. at 173–74. Thus, this

Court should “not extend Chevron deference here.”

Id. at 172.

CONCLUSION

The Framers understood that the “separation of

governmental powers into three coordinate

Branches is essential to the preservation of liberty.”

Mistretta, 488 U.S. at 380 (emphasis added). As this

case shows, however, Chevron deference is eroding

this fundamental principle of American government.

The Court should take this opportunity to overrule

Chevron or—at the very least—take whatever steps

it can to limit the damage.

27

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Center for Constitutional

Jurisprudence

c/o Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

877-855-3330

LOUIS A. CHAITEN

Counsel of Record

G. RYAN SNYDER

JONES DAY

North Point

901 Lakeside Avenue

Cleveland, OH 44114

216-586-3939

lachaiten@jonesday.com

Counsel for Amicus Curiae

April 27, 2018