Amicus Curiae Brief — James L. Kisor, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs

No. 18-15

In the

Supreme Court of the United States

JAMES L. KISOR,

Petitioner,

v.

ROBERT WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION,

CHANTELL AND MICHAEL SACKETT, AND

DUARTE NURSERY, INC. IN SUPPORT OF

PETITIONER

TODD F. GAZIANO

THOMAS A. BERRY

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 610

Arlington, VA 22201

(202) 888-6881

ANTHONY L. FRANÇOIS*

*Counsel of Record

DAMIEN M. SCHIFF

DANIEL M. ORTNER

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

(916) 419-7111

TFrancois@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation,

Chantell and Michael Sackett, and Duarte Nursery, Inc.

i

QUESTION PRESENTED

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

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

(1945), direct courts to defer to an agency’s reasonable

interpretation of its own ambiguous regulation.

Separately, in Brown v. Gardner, 513 U.S. 115, 118

(1994), the Court held that “interpretive doubt is to be

resolved in the veteran’s favor.”

Petitioner, a Marine veteran, seeks disability

benefits for his service-related post-traumatic stress

disorder (PTSD). While the Department of Veterans

Affairs (VA) agrees that Petitioner suffers from

service-related PTSD, it has refused to award him

retroactive benefits. The VA’s decision turns on the

meaning of the term “relevant” as used in 38 C.F.R.

§ 3.156(c)(1).

Below, the Federal Circuit found that

Petitioner and the VA both offered reasonable

constructions of that term. On that basis alone, the

court held that the regulation is ambiguous, and—

invoking Auer—deferred to the VA’s interpretation of

its own ambiguous regulation. The question presented

is:

1.

Whether the Court should overrule Auer

and Seminole Rock.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND

SUMMARY OF ARGUMENT .................................... 3

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

I. AUER TOWN—THE COMPANY TOWN

THAT BETRAYS THE ORIGINAL PROMISE

OF PROTECTED INDIVIDUAL LIBERTY

THROUGH SEPARATION OF POWERS ......... 6

II. AUER TOWN—NO

LEGISLATORS HEEDED ............................... 11

A. Auer Is Particularly Egregious Since

It Applies to Rules Even Where Agencies

Violate Their Rulemaking Duties Under

the Congressional Review Act ...................... 11

B. Auer Extends the Already Dubious

Allowance for Delegation of the

Legislative Power to the Executive .............. 19

III. AUER TOWN—NO JUDGES WELCOME .... 22

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

iii

TABLE OF AUTHORITIES

Cases

Auer v. Robbins,

519 U.S. 452 (1997) ........................................passim

Bond v. United States,

564 U.S. 211 (2011) ........................................... 7, 23

Boumediene v. Bush,

553 U.S. 723 (2008) ................................................. 6

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) .................................... 4, 21, 27

Brown v. Gardner,

513 U.S. 115 (1994) .................................................. i

Buckley v. Valeo,

424 U.S. 1 (1976) ..................................................... 6

Chevron v. NRDC,

467 U.S. 837 (1984) ...................................... 5, 19-20

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ............................................... 21

Clinton v. City of New York,

524 U.S. 417 (1998) ................................................. 7

Coeur Alaska, Inc. v. Southeast Alaska

Conservation Council, 557 U.S. 261 (2009) .......... 15

Columbia Gas Transmission, LLC v.

1.01 Acres, More or Less in Penn Twp., York Cty.,

Pa., Located on Tax ID #440002800150000000

Owned by Brown, 768 F.3d 300 (3d Cir. 2014) .... 22

Decker v. Nw. Envtl. Def. Ctr.,

568 U.S. 597 (2013) ............................... 2, 11, 20, 26

iv

Egan v. Delaware River Port Auth.,

851 F.3d 263 (3d Cir. 2017).............................. 20-22

Ellis-Hall Consultants v. Pub. Serv. Comm’n,

379 P.3d 1270 (Utah 2016) ................................... 26

Foster v. Vilsack,

820 F.3d 330 (8th Cir. 2016), cert. denied,

137 S. Ct. 620 (2017) ............................................... 1

Free Enter. Fund v. Public Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) ........................ 6

G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.,

822 F.3d 709 (4th Cir. 2016), vacated and

remanded, 137 S. Ct. 1239 (2017)......................... 16

Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm,

136 S. Ct. 2442 (2016) ............................................. 1

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ............. 20-21, 25-26

In re: EPA,

803 F.3d 804 (6th Cir. 2015) ................................... 3

INS v. Chadha,

462 U.S. 919 (1983) ................................................. 6

Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan,

555 U.S. 285 (2009) ............................................... 18

Kisor v. Shulkin,

869 F.3d 1360 (Fed. Cir. 2017) ............................. 18

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 22

Martin v. Occupational Safety & Health Review

Comm’n, 499 U.S. 144 (1991)................................ 26

Myers v. United States,

272 U.S. 52 (1926) ................................................... 6

v

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ........................................... 1, 3

Pauley v. BethEnergy Mines, Inc.,

501 U.S. 680 (1991) ............................................... 27

Perez v. Mortgage Bankers Ass’n,

135 S. Ct. 1199 (2015) ....................................passim

Rapanos v. United States,

547 U.S. 715 (2006) .............................................. 2-3

Sackett v. EPA,

566 U.S. 120 (2012) ........................................... 2, 17

Talk Am., Inc. v. Mich. Bell Tel. Co.,

564 U.S. 50 (2011) ................................................... 8

Washington Cattlemen’s Association v. EPA,

No. 15-4188 (6th Cir.).............................................. 3

U.S. Army Corps of Engineers v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016) ............................................. 2

Unites States v. Brown,

381 U.S. 437 (1965) ................................................. 6

Constitution

U.S. Const. art. III, § 1 ............................................. 22

Statutes

5 U.S.C. § 551 ............................................................ 12

5 U.S.C. § 551(4) ....................................................... 12

5 U.S.C. § 801, et seq. ................................................ 12

5 U.S.C. § 801(a)(1)(A) .............................................. 12

5 U.S.C. § 801(b). ...................................................... 12

5 U.S.C. § 802 ............................................................ 12

5 U.S.C. § 804(c) ........................................................ 12

vi

Indirect Auto Lending Act,

Pub. L. No. 115-172 (2018)............................... 14-15

Regulation

38 C.F.R. § 3.156(c)(1)............................................... 18

Rule

U.S. Sup. Ct. R. 37.3 ................................................... 1

Legislative Material

142 Cong. Rec. E575 (daily ed. Apr. 19, 1996) ......... 12

142 Cong. Rec. E578 (daily ed. Apr. 19, 1996) ......... 13

142 Cong. Rec. S3683 (daily ed. Apr. 18, 1996) ....... 12

142 Cong. Rec. S3687 (daily ed. Apr. 18, 1996) .. 12-13

Cong. Research Serv., R40997,

Congressional Review Act: Rules Not

Submitted to GAO and Congress (2009),

https://www.redtaperollback.com/wpcontent/uploads/2017/04/CRS122909.pdf ........ 13-14

U.S. Gov’t Accountability Office,

Federal Rulemaking: Perspectives on 10 Years

of Congressional Review Act Implementation,

GAO-06-601T (2006), http://www.gao.gov/

assets/120/113245.pdf ........................................... 14

U.S. Gov’t Accountability Office,

https://www.gao.gov/legal/other-legalwork/

congressonal-review-act?fedRuleSearch=regas&

report=&agency=All&type=All&priority=All&begi

n_date=mm%2Fdd%2Fyyyy&end_date=01%2F21%

2F2019&begin_eff_date=mm%2Fdd%2Fyyyy&end

_eff_date=12%2F31%2F2020&begin_gao_date=mm

%2Fdd%2Fyyyy&end_gao_date=01%2F21%2F2019

&searched=1&Submit=Search#database ............ 16

vii

Other Authorities

Adler, Jonathan H.,

Auer Evasions,

6 Geo. J.L. & Pub. Pol’y 1 (2018) ............................ 7

Anthony, Robert A.,

The Supreme Court and the APA: Sometimes They

Just Don’t Get It,

10 Admin. L.J. Am. U. 1 (1996) ............................ 11

Barnett, Randy R.,

Our Republican Constitution: Securing the Liberty

and Sovereignty of We the People (2016) .............. 22

Copeland, Curtis W.,

Congressional Review Act: Many Recent Final

Rules Were Not Submitted to GAO and Congress

(2014), https://www.redtape rollback.com/wpcontent/uploads/2017/05/CurtisCopelandCongressi

onalReviewActManyRecentFinalRulesWereNotSub

mittedtoGAOandCongress07-15-2014.pdf ............. 14

Dudley, Susan E.,

CRAzy After All These Years: Extending

the Reach of the Congressional Review Act,

Forbes (Mar. 7, 2017), https://www.forbes.com/

sites/susandudley/2017/03/07/crazy-after-all-theseyears-extending-the-reach-of-the-congressionalreview-act/#2c52e00d24b8 .................................... 14

EPA,

Section 404 of the Clean Water Act,

2008 Rapanos Guidance and Related Documents,

https://www.epa.gov/cwa-404/2008-rapanosguidance-and-related-documents. ............. 2-3, 17-18

viii

Ginsburg, Douglas H. & Menashi, Steven,

Our Illiberal Administrative Law,

10 N.Y.U. J.L. & Liberty 475 (2016)....................... 8

Harrington, James,

The Commonwealth of Oceana (1656), reprinted in

Cambridge Text in the History of Political Thought,

22 (James G. Pocock ed., 1992) ............................... 9

Hamburger, Philip,

Is Administrative Law Unlawful? (2014) ........ 23-24

Healy, Michael P.,

The Past, Present and Future of Auer Deference:

Mead, Form and Function in Judicial Review

of Agency Interpretations of Regulations,

62 U. Kan. L. Rev. 633 (2014) ................................. 9

Huq, Aziz Z. & Michaels, Jon D.,

The Cycles of Separation-of-Powers Jurisprudence,

126 Yale L.J. 346 (2016).......................................... 7

Kaplinsky, Alan S. & Willis, Christopher J.,

Congress disapproves CFPB Bulletin concerning

discretionary pricing by auto dealers, Consumer

Finance Monitor (May 8, 2018), https://www.

consumerfinancemonitor.com/2018/05/08/

congress-disapproves-cfpb-bulletin-concerningdiscretionary-pricing-by-auto-dealers/ ................. 15

Kavanaugh, Brett M.,

Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) .............................. 27

Leske, Kevin O.,

A Rock Unturned: Justice Scalia’s (Unfinished)

Crusade Against the Seminole Rock Deference

Doctrine, 69 Admin. L. Rev. 1 (2017).................... 10

ix

Madison, James,

1 Annals of Congress ............................................... 6

Manning, John F.,

Constitutional Structure and Judicial Deference to

Agency Interpretations of Agency Rules,

96 Colum. L. Rev. 612 (1996) .........................passim

Marisam, Jason,

Constitutional Self-Interpretation,

75 Ohio St. L.J. 293 (2014) ................................... 10

Merrill, Thomas W. & Watts, Kathryn Tongue,

Agency Rules with the Force of Law:

The Original Convention,

116 Harv. L. Rev. 467 (2002) .................................. 8

Redtape Rollback,

Pacific Legal Foundation,

Redtaperollback.com/rules .................................... 18

Sharp, Malcom P.,

The Classical American Doctrine

of “The Separation of Powers”,

2 U. Chi. L. Rev. 385 (1935) .................................... 6

The Federalist

No. 48 (James Madison) ........................................ 24

The Federalist

No. 78 (Alexander Hamilton) ................................ 23

Vermeule, Adrian,

Contra Nemo Iudex in Sua Causa: The Limits

of Impartiality, 122 Yale L.J. 384 (2012) .......... 9-10

x

Walker, Chris,

Auer Deference Inside the Regulatory State:

Some Preliminary Findings, Notice & Comment:

(Sept. 14, 2016), http://yalejreg.com/nc/auerdeference-inside-the-regulatory-state-somepreliminary-findings/ .............................................. 21

Walker, Christopher J.,

Chevron Inside the Regulatory State:

An Empirical Assessment,

83 Fordham L. Rev. 703 (2014)............................. 21

Walker, Christopher J.,

Legislating in the Shadows,

65 U. Pa. L. Rev. (2017),

https://ssrn.com/abstract=2826146....................... 20

Yeatman, William,

An Empirical Defense of Auer Step Zero,

106 Geo. L.J. 515 (2018)........................................ 25

Yale, D.E.C.,

Iudex in Propria Causa: An Historical Excursus,

33 Cambridge L.J. 80 (1974) ................................... 8

1

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.3, Pacific

Legal Foundation, Chantell and Michael Sackett, and

Duarte Nursery, Inc., submit this brief amicus curiae

in support of Petitioner James Kisor. 1 All parties

have consented to the filing of this amicus brief.

Amici’s interest in this case derives from their various

experiences with federal agency re-interpretation of

regulations adopted under the Clean Water Act and

related federal statutes.

Amicus Pacific Legal Foundation is the most

experienced public interest legal organization

defending the constitutional principle of separation of

powers in the arena of administrative law. PLF’s

attorneys have participated as lead counsel or counsel

for amici in several cases before this Court involving

the role of the Article III courts as an independent

check on the Executive Branch under the

Constitution’s Separation of Powers, including cases

considering the contemporary practices of judicial

deference to agency interpretations of statutes and

regulations. See, e.g., Nat’l Ass’n of Mfrs. v. Dep’t of

Def., 138 S. Ct. 617 (2018) (interpretation of Clean

Water Act venue statute); Gloucester Cty. Sch. Bd. v.

G.G. ex rel. Grimm, 136 S. Ct. 2442 (2016) (Auer

deference to agency guidance letter); Foster v. Vilsack,

820 F.3d 330 (8th Cir. 2016), cert. denied, 137 S. Ct.

620 (2017) (Auer deference to agency staff testimony);

1 All parties have consented to the filling of this brief. No counsel

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

person or entity made a monetary contribution specifically for

the preparation or submission of this brief. No person other than

Amici Curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

U.S. Army Corps of Engineers v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016) (judicial review of agency

interpretation of Clean Water Act); Sackett v. EPA,

566 U.S. 120 (2012) (same); Decker v. Nw. Envtl. Def.

Ctr., 568 U.S. 597 (2013) (Auer deference to Clean

Water Act regulations); Rapanos v. United States, 547

U.S. 715 (2006) (agency regulations defining

“navigable waters”).

Amici Chantell and Michael Sackett are the

plaintiffs in Sackett v. EPA, presently pending on

remand from this Court, in the U.S. District Court for

the District of Idaho, case no. 2:08-cv-00185-N-EJL. 2

The Sacketts are challenging an administrative

compliance order issued by the Environmental

Protection Agency, which directs them to restore a

home site they own near Priest Lake, Idaho, on the

ground that their property contains navigable waters

for which no dredge and fill permit will be issued

under the Clean Water Act. See generally, Sackett v.

EPA, 566 U.S. at 122. The sole issue in the Sacketts’

challenge to the compliance order is whether their

property contains federally protected navigable

waters under the Clean Water Act. EPA defends its

jurisdictional determination in part based upon its

2008 post-Rapanos Guidance, which purports to reinterpret the agency’s regulations defining “navigable

waters” under the Clean Water Act in light of this

Court’s fractured decision in Rapanos, 547 U.S. 715.

The Sacketts’ case was promptly remanded from this Court

back down to the district court in 2012. There, the case has been

fully briefed on cross motions for summary judgment and

awaiting decision since January of 2016. As the late Justice

Scalia wrote in Sackett v. EPA, the “Sacketts . . . are feeling their

way.” 566 U.S. at 124. Unfortunately, they have not been able to

do so very quickly.

2

3

EPA argues to the District Court below that it is

obliged to defer to the post-Rapanos Guidance under

Auer. A decision of this Court in favor of Petitioner in

this case would likely assist the District of Idaho in

ruling on the Sacketts’ pending summary judgment

motion.

Amicus Duarte Nursery, Inc., is a farming

company in California, with an ongoing interest in the

scope of the federal government’s exercise of

regulatory authority over farming practices under the

Clean Water Act. Duarte Nursery was a petitioner in

Washington Cattlemen’s Association v. EPA in the

Sixth Circuit, Case No. 15-4188, which challenged

EPA’s 2015 regulation defining “navigable waters”

under the Clean Water Act. See generally In re: EPA,

803 F.3d 804 (6th Cir. 2015). Duarte Nursery, Inc.,

was also a respondent before this Court in National

Association of Manufacturers v. Department of

Defense, 138 S. Ct. 617 (2018), which held that the

federal district courts, rather than the Sixth Circuit,

have jurisdiction over Duarte Nursery’s claims. The

role of the post-Rapanos Guidance and related agency

re-interpretations of Clean Water Act regulations is

an ongoing issue in both the pending litigation

challenging the 2015 EPA regulation redefining

“navigable waters” and EPA’s ongoing effort to revise

those regulations yet again.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The United States government, as established

by the Constitution, governs a republic whose citizens’

liberty is protected by the separation of law-making,

law-enforcement, and law-interpretation between the

4

Legislative, Executive, and Judicial branches. The

practical purpose of that separation is to prevent any

one agency from becoming so mighty in its

enforcement power that it can convert the republic

into what is essentially a company town: a community

with no democratically elected council, and no

independent judges. In such a town, the company

decides what the rules are, enforces the rules, changes

the rules (through “interpretation” of them), and then

tells the judges what the rules mean. All of this is done

to restrict the liberty of the citizenry, and to

aggrandize the power of the company.

This Court’s decisions in Auer v. Robbins and

Bowles v. Seminole Rock & Sand Co. have

unfortunately enabled just this conversion of our

executive agencies, from a checked and balanced

branch of a tripartite government, into the unchecked

and dominant power in what increasingly looks and

feels like an old-fashioned company town, whose

citizens have to take what the company says and like

it, or else.

Auer deference allows agencies to flout the

Congress in two important ways. First, Congress

mandates that federal agencies submit all their

“rules” to Congress for review and potential

disapproval before such rules are legally in effect,

under the Congressional Review Act. The very types

of policy memoranda, guidance documents, and

adjudicative interpretations of agency regulations to

which Auer applies are covered by the Congressional

Review Act, and yet agencies routinely flout their

obligation to submit those rules to Congress for review

and potential disapproval. So agencies thwart

effective legislative branch checks under the

5

Congressional Review Act, while telling the judicial

branch to defer to these selfsame rules.

Auer also exacerbates the already questionable

judicial practice of deference to agency regulatory

interpretations of statutes under Chevron v. NRDC,

467 U.S. 837 (1984). Chevron allows agencies to bind

the courts to their regulatory interpretations of

ambiguous statutes, but does not require regulations

to be clear. Auer allows agencies to regulate

ambiguously and then interpret those regulations to

taste later, with the expectation of forcing such reinterpretations on the courts. This second level of

deference to agency law making increasingly obscures

Congress’ constitutional role as the lawmaker. The

consequence of Auer is not merely the transfer of

Congress’ legislative power to the executive branch,

but the near complete erasure of Congress’ legislative

power itself.

And, as numerous members of this and other

courts have observed, Auer deference allows executive

agencies to transgress on the judiciary, by taking from

it the inherently judicial power to “say what the law

is.” This dynamic converts the judiciary from a check

and balance on the executive into a rubber stamp.

Whatever the original rationale for Auer

deference, its sad consequences for liberty and

constitutional government require that this Court

overturn it. It is time to end the unchecked power of

the executive branch. It is time to turn the company

town back into a constitutional republic, and thereby

protect individual liberties, which depend on

separated powers.

6

ARGUMENT

I

AUER TOWN—THE COMPANY TOWN

THAT BETRAYS THE ORIGINAL PROMISE

OF PROTECTED INDIVIDUAL LIBERTY

THROUGH SEPARATION OF POWERS

“Our Constitution divided the ‘powers of the

new Federal Government into three defined

categories, Legislative, Executive, and Judicial.’” Free

Enter. Fund v. Public Co. Accounting Oversight Bd.,

561 U.S. 477, 483 (2010) (quoting INS v. Chadha, 462

U.S. 919, 951 (1983)). The Founders believed that this

division3 was an elemental part of the design for just

government. See Myers v. United States, 272 U.S. 52,

116 (1926) (“If there is a principle in our Constitution,

indeed in any free Constitution more sacred than

another, it is that which separates the legislative,

executive and judicial powers.”) (quoting James

Madison, 1 Annals of Congress 581). Born of the

Founders’ distrust of government power, Boumediene

v. Bush, 553 U.S. 723, 742 (2008), the separation of

powers constitutes one of the Constitution’s key

structural protections against tyranny. See, e.g.,

Buckley v. Valeo, 424 U.S. 1, 121 (1976) (“The men

who met in Philadelphia in the summer of 1787 were

practical statesmen, experienced in politics, who

viewed the principle of separation of powers as a vital

check against tyranny.”); Unites States v. Brown, 381

U.S. 437, 443 (1965) (“This ‘separation of powers’ was

3 “Aristotle’s Politics contains what is commonly taken to be the

original statement of the doctrine.” Malcolm P. Sharp, The

Classical American Doctrine of “The Separation of Powers”, 2 U.

Chi. L. Rev. 385, 387 (1935).

7

obviously not instituted with the idea that it would

promote governmental efficiency. It was, on the

contrary, looked to as a bulwark against tyranny.”).

The separation of powers therefore serves to protect

individual liberty. Bond v. United States, 564 U.S.

211, 223 (2011) (“[I]ndividuals, too, are protected by

the operations of separation of powers . . . .”). See

Clinton v. City of New York, 524 U.S. 417, 450 (1998)

(Kennedy, J., concurring) (“Liberty is always at stake

when one or more of the branches seek to transgress

the separation of powers.”). Indeed, this libertyprotecting aspect of the doctrine has received

particular emphasis in the Court’s recent separationof-powers cases. Aziz Z. Huq & Jon D. Michaels, The

Cycles of Separation-of-Powers Jurisprudence, 126

Yale L.J. 346, 382-83 (2016).

An important liberty-protecting part of the

separation of powers as crafted by the Framers is the

assignment of law-making and law-interpretation to

different branches of government. John F. Manning,

Constitutional Structure and Judicial Deference to

Agency Interpretations of Agency Rules, 96 Colum. L.

Rev. 612, 641 (1996) (“[T]he founders took special

pains to limit Congress’s direct control over the

instrumentalities that implement its laws.”);

Jonathan H. Adler, Auer Evasions, 16 Geo. J.L. & Pub.

Pol’y 1, 14 (2018) (“The combination of the law-making

and law-interpreting functions was viewed with

suspicion at the time of the nation’s founding because

it was feared that such concentration of power

facilitated the abuse of government power.”). That

desire had a distinguished pedigree: Montesquieu,

Locke, and Blackstone all considered the separation of

law-making and law-interpretation to be important in

8

furthering the rule of law and limiting arbitrary

government. 4 Manning, supra, at 646-47.

Auer, however, conflicts with this aspect of the

separation of powers. See Talk Am., Inc. v. Mich. Bell

Tel. Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring)

(Auer deference “seems contrary to fundamental

principles of separation of powers [because it]

permit[s] the person who promulgates a law to

interpret it as well.”). As Dean Manning explained in

his classic article on the subject, judicial deference to

agency interpretation of agency rules effects the

combination of law making (in the form of so-called

“legislative” rules5) with law interpretation by

requiring courts to accept agency interpretations of

their own ambiguous regulations. Manning, supra, at

631. Accord Douglas H. Ginsburg & Steven Menashi,

Our Illiberal Administrative Law, 10 N.Y.U. J.L.

& Liberty 475, 513 (2016) (“Because interpretation

may work a significant change, the agency’s power to

interpret—subject only to deferential review—is akin

to the power to rewrite the rule. [¶] This [is a] violation

of the separation between lawmaking and law

elaboration . . . .”). Among the drawbacks of this

The desirability of separating law making from law

interpretation has a long as well as distinguished pedigree.

D.E.C. Yale, Iudex in Propria Causa: An Historical Excursus, 33

Cambridge L.J. 80, 86 (1974) (the principle that the manorial

court and not the lord himself should render judgment “was a

powerful one in the Middle Ages.”).

4

5 “Legislative rules are those that have the force and effect of law.

From the perspective of agency personnel, regulated parties, and

courts, these rules have a status akin to that of a statute.”

Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with

the Force of Law: The Original Convention, 116 Harv. L. Rev.

467, 476-77 (2002).

9

practice is the elimination of “an important incentive

for adopting transparent and self-limiting rules”—

presumably the very rules that would most safeguard

individual liberty—“because any discretion created by

imprecise, vague, or ambiguous laws inures to the

very entity that created it.” Manning, supra, at 648.

By violating the separation of powers, Auer

deference also raises a self-dealing concern. One

famous (if homely) explanation of the separation of

powers is the image of a matron slicing a cake: “when

considering the sharing of a cake between parties, the

person who divides the cake must not be the person

who chooses the desired piece of cake if there is to be

a fair sharing.” Michael P. Healy, The Past, Present

and Future of Auer Deference: Mead, Form and

Function in Judicial Review of Agency Interpretations

of Regulations, 62 U. Kan. L. Rev. 633, 681 (2014)

(citing James Harrington, The Commonwealth of

Oceana (1656), reprinted in Cambridge Texts in the

History of Political Thought 22, 24 (James G. Pocock

ed., 1992)). Just as in a just system of home economics,

so in a just administrative state: the entity making the

rules should have no power to employ them in a way

prejudicially beneficial to itself. Healy, supra, at 681

(“[A]bandoning Auer deference forecloses an agency

from being able to make law (divide the cake) in a way

that the agency itself can later apply unfairly

(distributing the pieces).”).

Rejecting Auer deference because of its

inconsistency with the separation of powers does not

mean that the allocation of law-making and lawinterpretation to the same entity is never without

some benefit. See Adrian Vermeule, Contra Nemo

Iudex in Sua Causa: The Limits of Impartiality, 122

10

Yale L.J. 384, 420 (2012) (“[T]he impartiality of

decisionmakers [is] one institutional good among

others, to be pursued, or not, as a larger calculus of

institutional

optimization

suggests.”);

Jason

Marisam, Constitutional Self-Interpretation, 75 Ohio

St. L.J. 293, 308 (2014) (“[T]he anti-self-interpretation

norm trades off against competing institutional

values, and self-interpretation often exists when these

competing considerations plausibly outweigh the risks

from self-interpretation.”). But in light of the depth

and breadth of the power that federal agencies wield,

the costs to fairness and the rule of law—and thus to

liberty—that necessarily result from combining lawmaking and law-interpretation in the administrative

state decisively outweigh any efficiency or other gains

to be derived from their conflation. See infra Part III.

See also Perez v. Mortgage Bankers Ass’n, 135 S. Ct.

1199, 1212 (2015) (Scalia, J., concurring in the

judgment) (Auer deference “allows the agency to

control the extent of its notice-and-comment-free

domain.”); Manning, supra, at 618 (“By providing the

agency an incentive to promulgate imprecise and

vague rules, [Auer deference] undercuts important

deliberative process objectives . . . , and it creates

potential problems of inadequate notice and

arbitrariness in the enforcement of agency rules.”). Cf.

Kevin O. Leske, A Rock Unturned: Justice Scalia’s

(Unfinished) Crusade Against the Seminole Rock

Deference Doctrine, 69 Admin. L. Rev. 1, 42 (2017)

(reform of the current standard for deferring to agency

interpretation of agency rules “would lead to positive

results in our administrative state, such as increased

consistency, uniformity, fairness and transparency”).

11

Ultimately, however, any purported practical

justification for Auer deference is beside the point. For

even if the gains from Auer deference were significant,

“beneficial effect cannot justify a rule that not only has

no principled basis but contravenes [the] separation of

powers.” Decker, 568 U.S. at 621 (Scalia, J.,

concurring in part and dissenting in part). See Robert

A. Anthony, The Supreme Court and the APA:

Sometimes They Just Don’t Get It, 10 Admin. L.J. Am.

U. 1, 12 (1996) (Auer deference “is a statist

anachronism” and “should have no place in a system

of limited government under the rule of law”). As “a

dangerous permission slip for the arrogation of

power,” Decker, 568 U.S. at 620 (Scalia, J., concurring

in part and dissenting in part), Auer deference

frustrates the liberty-protecting aim of the separation

of powers. For that reason alone, it should be

abrogated.

II

AUER TOWN—NO LEGISLATORS HEEDED

A.

Auer Is Particularly Egregious Since It

Applies to Rules Even Where Agencies

Violate Their Rulemaking Duties Under

the Congressional Review Act

Auer deference violates separation-of-powers

principles because it allows executive branch rules to

avoid meaningful review by the judicial branch. This

core problem with Auer deference is compounded by

the fact that, in many cases, the very interpretation to

which the judicial branch defers has also evaded

statutorily mandated review by the legislative branch.

The “interpretations” that Auer deference forces

courts to accept are frequently issued without notice-

12

and-comment rulemaking procedures and without

congressional review, the latter in violation of the

Congressional Review Act. This is yet another reason

why Auer deference must be eliminated and the

outsized influence of these guidance documents must

be curtailed. When documents so frequently slip

through the cracks of meaningful oversight, courts

should give these documents less authority, not more.

In 1996, Congress passed the Congressional

Review Act (CRA). 5 U.S.C. § 801, et seq. The CRA was

intended to “allow[] Congress the opportunity to

review a rule before it takes effect and to disapprove

any rule to which Congress objects.” 142 Cong. Rec.

S3683 (daily ed. Apr. 18, 1996) (joint, bipartisan

statement of Senate sponsors Nickles, Reid, and

Stevens); 142 Cong. Rec. E575 (daily ed. Apr. 19, 1996)

(identical statement by Rep. Hyde for House CRA

sponsors). To that end, the CRA requires every agency

issuing a rule to submit it along with a short report to

the House, Senate, and Government Accountability

Office (GAO) “before [the] rule can take effect.” 5

U.S.C. § 801(a)(1)(A). Once a rule has been submitted,

Congress may pass a joint resolution of disapproval

through a streamlined legislative process. See id.

§ 802. Such a joint resolution invalidates the rule and

prevents the agency from issuing a “substantially

similar” one in the future. Id. § 801(b).

The definition of a “rule” that must be submitted to

Congress is intentionally broad. See 5 U.S.C. § 804(c)

(adopting, with limited exceptions, the definition of a

“rule” appearing in 5 U.S.C. § 551); 5 U.S.C. § 551(4)

(defining a “rule” in part as an “agency statement . . .

designed to implement, interpret, or prescribe law or

policy”); see also 142 Cong. Rec. S3687 (daily ed. Apr.

13

18, 1996) (“Documents covered . . . include statements

of general policy, interpretations of general

applicability, and administrative staff manuals and

instructions to staff that affect a member of the

public.”). The legislative sponsors of the CRA

expressly chose this broad definition to address the

agency practice of evading notice-and-comment

procedures through the use of “guidance documents”

and other more informal correspondence not

published in the Federal Register. 6 Thus, a major

purpose of the CRA was to require that such

“regulatory dark matter” be submitted to Congress.

Since the passage of the CRA, study after study

has confirmed that the executive branch has

repeatedly failed to send many rules to the GAO to

begin the congressional review process. See, e.g.,

Cong. Research Serv., R40997, Congressional Review

Act: Rules Not Submitted to GAO and Congress (2009),

6 See 142 Cong. Rec. S3687 (daily ed. Apr. 18, 1996) (joint,

bipartisan statement of Senate sponsors Nickles, Reid, and

Steven) and 142 Cong. Rec. E578 (daily ed. Apr. 19, 1996)

(identical statement by Rep. Henry Hyde for House sponsors)

(emphasis supplied):

The authors intend this chapter to be interpreted

broadly with regard to the type and scope of rules

that are subject to congressional review. * * *

These include guidance documents and the like.

* * * The authors are concerned that some

agencies have attempted to circumvent noticeand-comment requirements by trying to give legal

effect to general statements of policy, “guidelines,”

and agency policy and procedure manuals. The

authors admonish the agencies that the APA’s

broad definition of “rule” was adopted by the

authors of this legislation to discourage

circumvention of the requirements of chapter 8.

14

https://www.redtaperollback.com/wp-content/uploads

/2017/04/CRS122909.pdf; U.S. Gov’t Accountability

Office, Federal Rulemaking: Perspectives on 10 Years

of Congressional Review Act Implementation, GAO06-601T (2006), http://www.gao.gov/assets/120/113

245.pdf; Curtis W. Copeland, Congressional Review

Act: Many Recent Final Rules Were Not Submitted to

GAO and Congress (2014), https://www.redtape

rollback.com/wp-content/uploads/2017/05/CurtisCope

landCongressionalReviewActManyRecentFinalRules

WereNotSubmittedtoGAOandCongress07-15-2014.pdf.

And while most of these studies have focused on rules

published in the Federal Register, since they can be

cross checked in public databases, the compliance rate

for rules not published in the Federal Register, such as

guidance documents, is much worse, though harder to

quantify accurately. See, e.g., Susan E. Dudley, CRAzy

After All These Years: Extending the Reach of the

Congressional Review Act, Forbes (Mar. 7, 2017),

https://www.forbes.com/sites/susandudley/2017/03/07

/crazy-after-all-these-years-extending-the-reach-of-th

e-congressional-review-act/#2c52e00d24b8

(noting

that “thousands” of guidance documents have likely

never been submitted to Congress).

It’s impossible to know whether Congress

would disapprove agency guidance documents at the

same rate as notice-and-comment rules if the former

were properly delivered for review. But when GAO

opined that a Consumer Financial Protection Bureau

guidance bulletin concerning discretionary pricing

and indirect auto lending should have been submitted

to Congress, both Houses deemed it submitted as of

the date of the GAO opinion and subsequently

disapproved it using the CRA procedures. President

Trump signed the disapproval resolution on May 21,

15

2018, Pub. L. No. 115-172, which also prohibits the

Consumer Financial Protection Bureau from issuing a

substantially similar guidance document again

without congressional authorization. See Alan S.

Kaplinsky & Christopher J. Willis, Congress

disapproves CFPB Bulletin concerning discretionary

pricing by auto dealers, Consumer Finance Monitor

(May 8, 2018), https://www.consumerfinancemonitor.

com/2018/05/08/congress-disapproves-cfpb-bulletin-co

ncerning-discretionary-pricing-by-auto-dealers/.

While the executive branch has wrongfully

evaded congressional review of the vast majority of its

guidance documents, the Auer doctrine has continued

to give outsized importance to these very same

informal

writings.

As

several

cases

have

demonstrated, the current regime of Auer deference

has turned these documents into de facto amendments

to the rules that agencies enact through notice-andcomment rulemaking, since courts are bound to follow

any reasonable “interpretation” of a rule found in such

a document.

In Coeur Alaska, Inc. v. Southeast Alaska

Conservation Council, for example, this Court gave

determinative weight to an interpretation of an

agency regulation contained in an internal EPA

memorandum known as the “Regas Memorandum.”

557 U.S. 261, 283-86 (2009). Because of the decisive

weight given to agency interpretations under Auer,

this single memo authored by a single EPA official

effectively determined the EPA’s policy regarding the

regulations of “fill material” dredged up during

mining. The memo at issue in Coeur Alaska was

therefore undeniably an “interpretation[] of general

applicability,” just as much as any notice-and-

16

comment rule implementing a statute. Yet the

memorandum in question had never been submitted

to Congress for review, in violation of the CRA. See

U.S. Gov’t Accountability Office, https://www.gao.gov/

legal/other-legal-work/congressonal-review-act?fedRu

leSearch=regas&report=&agency=All&type=All&pri

ority=All&begin_date=mm%2Fdd%2Fyyyy&end_dat

e=01%2F21%2F2019&begin_eff_date=mm%2Fdd%2

Fyyyy&end_eff_date=12%2F31%2F2020&begin_gao_

date=mm%2Fdd%2Fyyyy&end_gao_date=01%2F21%

2F2019&searched=1&Submit=Search#database

(search in GAO database of submitted rules for

“Regas” returns zero results).

Similarly in G.G. ex rel. Grimm v. Gloucester

County School Bd., the Fourth Circuit based its

decision on the application of Title IX regulations to

transgender bathroom usage on a single letter, 822

F.3d 709, 718 (4th Cir. 2016) vacated and remanded,

137 S. Ct. 1239 (2017) (mem. op.), which was never

submitted to Congress. See U.S. Gov’t Accountability

Office, https://www.gao.gov/legal/other-legal-work/co

ngressional-review-act?fedRuleSearch=gender+identi

ty&report=&agency=All&type=All&priority=All&beg

in_date=mm%2Fdd%2Fyyyy&end_date=01%2F22%2

F2019&begin_eff_date=mm%2Fdd%2Fyyyy&end_eff

_date=12%2F31%2F2020&begin_gao_date=mm%2Fd

d%2Fyyyy&end_gao_date=01%2F22%2F2019&searc

hed=1&Submit=Search#database (search in GAO

database of submitted rules for “gender identity”

returns six unrelated results). As these examples

show, cases are regularly decided on the basis of Auer

deference given to documents that have never been

reviewed by Congress because the executive branch

has illegally withheld them. The executive branch has

thus failed to conform its procedures to acknowledge

17

the outsized influence and power that Auer deference

gives to such memos.

In some cases, the internal tension in the

executive’s view of guidance documents has nearly

reached a breaking point. In Sackett v. EPA, the

Sacketts are challenging an EPA compliance order

which asserts that their homesite is a federally

protected wetland under the Clean Water Act. See

generally Sackett v. EPA, 566 U.S. 120, 122 (2012). On

remand to the district court, the case has been fully

briefed on cross motions for summary judgment and

awaiting decision for approximately three years. The

sole issue in the Sacketts’ challenge is whether their

property contains navigable waters under the Clean

Water Act. See Plaintiffs’ Memorandum of Points and

Authorities in Support of Motion for Summary

Judgment on the Administrative Record at 13-24,

Sackett v. EPA, No. 2:08-cv-00185-EJL (D. Idaho

Sept. 4, 2015), ECF 103-1. A key basis on which the

EPA defends its administrative determination that

the Sacketts’ property is a navigable water is the

agency’s 2008 post-Rapanos Guidance. 7 See United

States’ Combined Memorandum in Opposition to

Plaintiffs’ Motion for Summary Judgment and in

Support of the United States’ Cross-Motion for

Summary Judgment at 7, Sackett v. EPA, No. 2:08-cv00185-EJL (D. Idaho Nov. 20, 2015), ECF 105-1

(identifying and explaining the post-Rapanos

Guidance as an interpretation of its regulation

defining “adjacent” wetlands); id. at 9 (claiming Auer

deference for interpretations of its regulations).

7

Available at https://www.epa.gov/cwa-404/2008-rapanosguidance-and-related-documents.

18

The post-Rapanos Guidance itself states that it

“does not impose legally binding requirements on . . .

the regulated community.” Guidance at 4, n.17. And,

the Guidance was never submitted to Congress for

review under the Congressional Review Act. See

Redtaperollback.com/rules (listing various agency

guidance documents not submitted to Congress, in

violation

of

the

CRA);

https://www.redtape

rollback.com/rules/rapanos-guidance/ (post-Rapanos

Guidance not submitted to Congress, in violation of

the CRA). Despite failing to comply with the CRA’s

rulemaking requirements, and disclaiming any

binding legal effect of the Guidance, EPA now argues

to the federal courts that the Guidance demands

judicial deference.

Because of Auer deference, the scope of

documents that can effectively serve as binding

amendment to agency policy is virtually limitless. For

example, this Court has held that an agency

interpretation is entitled to Auer deference even if it

“is stated in a legal brief.” Kennedy v. Plan Adm’r for

DuPont Sav. & Inv. Plan, 555 U.S. 285, 296 n.7 (2009).

Likewise, even adjudicative decisions issued by quasijudicial executive branch bodies are treated as agency

interpretations for the purposes of Auer. The agency

interpretation at issue in this case was written in the

form of a decision by the Board of Veterans’ Appeals.

See Kisor v. Shulkin, 869 F.3d 1360, 1367 n.10 (Fed.

Cir. 2017) (“The Board interpreted 38 C.F.R.

§ 3.156(c)(1) when it ruled that Mr. Kisor’s service

department records were not ‘relevant’ under that

subsection. . . . Because the Board is part of the VA . . .

the Board’s interpretation of the regulation is deemed

to be the agency’s interpretation.”) (citations omitted).

When courts confer Auer deference to agency legal

19

interpretations of any form, including briefs and

adjudicative decisions, those writings more clearly fall

under the CRA’s definition of a rule. Yet there is no

evidence the executive branch has any intention of

complying with the corresponding requirement to

submit them to Congress under the CRA. It is a

perverse outcome that the class of rules least often

submitted for congressional review, and for that

reason not lawfully effective under the CRA, should be

accorded special deference in the courts.

To be clear, this case does not raise a legal

challenge under the CRA. But the executive branch’s

longstanding evasion of the CRA’s requirements

provides evidence of the danger of giving judiciarytrumping authority to memos, letters, and even legal

briefs. None of these documents are subject to noticeand-comment rulemaking, and there is no sign that

the executive has any intention of granting Congress

the opportunity to review these documents, even

though that opportunity is required by law. This

Court should do its part to rein in the proliferation of

regulatory dark matter by overruling Auer and restore

full judicial interpretation of the regulations these

documents construe.

B.

Auer Extends the Already Dubious

Allowance for Delegation of the

Legislative Power to the Executive

All of the various agency deference doctrines

that this Court has promulgated have come under

heavy fire for delegating legislative power to the

executive. Chevron deference, for example, “risks

trampling the constitutional design by affording

executive agencies license to overrule a judicial

20

declaration of the law’s meaning prospectively, just as

legislation might—and all without the inconvenience

of having to engage the legislative processes the

Constitution prescribes.” Gutierrez-Brizuela v. Lynch,

834 F.3d 1142, 1151 (10th Cir. 2016) (Gorsuch, J.,

concurring). But Auer is a particularly dangerous

form of deference because it allows one single branch

of government to act as legislature, enforcer, and

interpreter. For all of its flaws, under Chevron

deference an agency has engaged in the interpretation

of an act of Congress, which means that the law has

received at least one round of interpretation by a

branch of government that is distinct from the one

that promulgated it before it comes before the

judiciary. Decker, 568 U.S. at 620 (Scalia, J.,

concurring in part and dissenting in part) (“Congress

cannot enlarge its own power through Chevron—

whatever it leaves vague in the statute will be worked

out by someone else.”). See also Manning, supra, at

639. On the other hand, with Auer deference, the

same branch of government that has promulgated a

rule is also given the ability to interpret and

reinterpret its own rules with binding effect: “[a] form

of Lawmaking Made Easy, one that permits all too

easy intrusions on the liberty of the people.” GutierrezBrizuela, 834 F.3d at 1151. And since agencies “can

also play a large role in the drafting and vetting of

legislation, even before it is enacted . . . they will at

times have three bites at the law-making apple.” Egan

v. Delaware River Port Auth., 851 F.3d 263, 279 (3d

Cir. 2017) (Jordan, J., concurring) (citing Christopher

J. Walker, Legislating in the Shadows, 165 U. Pa. L.

Rev. (2017), available at https://ssrn.com/abstract

=2826146 (presenting the results of extensive

interviews and surveys with 20 federal agencies)).

21

The impact of this delegation of legislative

authority to the executive is as predictable as it is

problematic. “Auer deference further accentuates the

shift of power to the executive branch by encouraging

agencies to promulgate regulations vague enough to

allow administrators wide latitude in deciding how to

govern.” Egan, 851 F.3d at 280 (Jordan, J.,

concurring). Agencies are thus prone to “write

substantive rules more broadly and vaguely, leaving

plenty of gaps to be filled in later, using interpretive

rules unchecked by notice and comment.” Perez, 135

S. Ct. at 1212 (Scalia, J., concurring). See Chris

Walker, Auer Deference Inside the Regulatory State:

Some Preliminary Findings, Notice & Comment:

(Sept. 14, 2016), http://yalejreg.com/nc/auer-deference

-inside-the-regulatory-state-some-preliminary-findings/

(discussing results of a survey of executive lawmakers

that showed that 39% took Auer/Seminole Rock

deference into account when drafting rules);

Christopher J. Walker, Chevron Inside the Regulatory

State: An Empirical Assessment, 83 Fordham L. Rev.

703, 716 (2014) (same).

Because Auer places the power to create and

interpret the law into a single hand, it incentivizes

government gamesmanship and efforts “to bend

existing laws, to reinterpret and apply them

retroactively in novel ways and without advance

notice.” Gutierrez–Brizuela, 834 F.3d at 1149

(Gorsuch, J., concurring). While this Court has placed

some theoretical limits on an agency’s ability to

reinterpret regulations when they are a “convenient

litigating position” or a “post hoc rationalization[],”

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

142, 155 (2012), in practice these limits have done

little to curtail agency aggrandizement of power. See,

22

e.g., Columbia Gas Transmission, LLC v. 1.01 Acres,

More or Less in Penn Twp., York Cty., Pa., Located on

Tax ID #440002800150000000 Owned by Brown, 768

F.3d 300, 316-17 (3d Cir. 2014) (Jordan, J., dissenting)

(rejecting an agency’s regulatory interpretation that

the agency admitted was “at odds with . . . the common

understanding” of the terms of the regulation and that

was adopted in a footnote “in the middle of an

unrelated rulemaking” as a “reaction to the District

Court’s decision in [that] case”). As long as Auer

continues to place the power to legislate and to

interpret into the same hands, the tendency to use and

abuse that authority will continue untrammeled. 8

III

AUER TOWN—NO JUDGES WELCOME

“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.” U.S. Const. art. III, § 1. It is

“emphatically the province and duty of the judicial

department to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Auer

deference “pushe[s] [the judiciary] further and further

away from [its] constitutional responsibility to ‘say

what the law is,’” Egan, 851 F.3d at 278, and in doing

so “undermines [the court’s] obligation to provide a

8 Deference to executive agency rulemaking interpretation also

“tends to the permanent expansion of the administrative state”

by serving as a “veto gate[]” that precludes “any legislative effort

to curtail agency overreach.” Egan, 851 F.3d at 280 (Jordan, J.,

concurring) (citing Randy R. Barnett, Our Republican

Constitution: Securing the Liberty and Sovereignty of We the

People 212 (2016)).

23

judicial check on the other branches.” Perez, 135 S. Ct.

at 1213 (Thomas, J., concurring). As Alexander

Hamilton explained in Federalist No. 78, “[t]he

interpretation of the law is the proper and peculiar

province of the courts.” The separation of the judicial

power from the legislative and executive powers is one

of the key elements of our Constitution, and it

functions as an important safeguard to the protection

of individual liberty. Bond v. United States, 564 U.S.

211, 222 (2011) (“[T]he dynamic between and among

the branches is not the only object of the

Constitution’s concern. The structural principles

secured by separation of powers protect the individual

as well.”).

Auer undermines the judiciary in two

significant respects: First of all, “[i]t represents a

transfer of judicial power to the Executive Branch.”

Second, “it amounts to an erosion of the judicial

obligation to serve as a ‘check’ on the political

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

concurring).

As heirs of the legacy of the English Civil War,

the Founders were keenly aware of the danger to

liberty that an executive branch empowered to both

interpret and enforce the law would create. Perez, 135

S. Ct. at 1215 (Thomas, J., concurring). The much

reviled Star Chamber provided the British monarchy

with the authority to conduct extrajudicial

adjudication without due process of law. Philip

Hamburger, Is Administrative Law Unlawful? 135

(2014). At the dawn of the English Civil War,

Parliament abolished Star Chamber and other

prerogative courts and declared that legal disputes

would “have their proper remedy and redress . . . by

24

the common law of the land and in the ordinary course

of justice.” Id. at 138. In reliance on that legacy, the

U.S. Constitution vests “[t]he judicial Power of the

United States” in the Article III judiciary. The

Constitution protected due process of law by ensuring

“that government could bind subjects in particular

instances only through the traditional processes of

law, consisting of regular criminal or civil

proceedings.” Id. at 173. The guarantee that

administrative actions would not be binding without

full, meaningful, and independent judicial review was

thus at the center of the Constitution’s protections.

Auer deference flaunts this constitutional guarantee

by placing the power to legislate, enforce, and issue

binding interpretation into the hands of one single

branch of government. See The Federalist No. 48

(James Madison). “It is agreed on all sides, that the

powers properly belonging to one of the departments

ought not to be directly and completely administered

by either of the other departments.”

The federal judiciary was carefully designed to

provide an independent source of legal interpretation

and adjudication free from “pressure from the political

branches, the public, or other interested parties.”

Perez, 135 S. Ct. at 1218 (Thomas, J., concurring).

Significantly, Article III judges were given lifetime

tenure upon good behavior to insulate them from

pressure to conform their opinions. In contrast,

members of the legislative or executive branch are

subject to democratic pressure and “may be swayed by

popular sentiment to abandon the strictures of the

Constitution or other rules of law.” Id. at 1219. Article

III judges thus provide a vital check on the tendency

to overreach or abandon the Constitution and the rule

of law by vigorously interpreting and applying the

25

law. See Gutierrez-Brizuela, 834 F.3d at 1149

(Gorsuch, J., concurring) (“[T]o resolve cases and

controversies over past events calls for neutral

decisionmakers who will apply the law as it is, not as

they wish it to be.”). Auer improperly forces the

judiciary to “abandon the judicial check,” Perez, 135 S.

Ct. at 1221 (Thomas, J., concurring) by allowing

executive agencies the power to both enact regulations

with “the force and effect of law,” id. at 1219, and to

interpret what those regulations mean—both as

applied to specific cases via adjudication and more

generally through the issuance of guidance documents

and similar actions.

Supporters of Auer argue that providing

deference does not undermine judicial authority

because ultimately the courts are free to reject an

agency’s interpretation as unreasonable and to offer

their own binding interpretations. But as Justice

Scalia explained in Perez, this form of review is

ultimately inadequate. Agencies are given wide range

to interpret increasingly vague interpretations, and

therefore are able “to make binding rules unhampered

by notice-and-comment procedure” or meaningful

judicial scrutiny. Perez, 135 S. Ct. at 1212 (Scalia, J.,

concurring). Auer’s requirement of “binding

deference” is in deep tension with the independence of

the judiciary and thus contrary to the structure of

power

established

by

the

Constitution.

Manning, supra, at 621. Empirical evidence shows

that the employment of Auer has a significant impact

on the degree to which courts uphold agency action

William Yeatman, An Empirical Defense of Auer Step

Zero, 106 Geo. L.J. 515, 519 (2018) (showing that

agency action is upheld 74% of the time under Auer

compared to 58% under Skidmore).

26

Auer further undermines the role of the

judiciary by granting executive agencies the power to

overturn judicial judgments concerning the meaning

of legislation or executive rulemaking. Under Brand

X, agencies are entitled to deference even in the face

of judicial precedent to the contrary. See also

Gutierrez-Brizuela, 834 F.3d at 1150 (Gorsuch, J.,

concurring) (“By Brand X’s own telling, this means a

judicial declaration of the law’s meaning in a case or

controversy before it is not ‘authoritative,’ . . . but is

instead subject to revision by a politically accountable

branch of government.”). Judicial pronouncements are

thus transformed into little more than advisory

opinions in contravention of Article III.

Another inadequate justification for Auer is

that agencies are “in a better position . . . to

reconstruct the purpose of particular regulations”

than the judiciary. Martin v. Occupational Safety &

Health Review Comm’n, 499 U.S. 144, 145 (1991). This

rationale conflates the agency’s power to rulemake, a

legislative function delegated to the agency by

congress, and the judiciary’s power to provide binding

legal interpretation, squarely a judicial function.

Decker, 568 U.S. at 618 (Scalia, J., concurring in part

and dissenting in part) (“Making regulatory programs

effective is the purpose of rulemaking, in which the

agency uses its ‘special expertise’ to formulate the best

rule. But the purpose of interpretation is to determine

the fair meaning of the rule—to ‘say what the law

is[.]’”). While agencies may be experts in promulgating

and enforcing regulatory policy, they are not experts

at statutory interpretation, the provenance of the

judiciary. See Ellis-Hall Consultants v. Pub. Serv.

Comm’n, 379 P.3d 1270, 1275 (Utah 2016) (rejecting

Auer deference for state agencies and emphasizing

27

that “[w]e are in as good a position as the agency to

interpret the text of a regulation that carries the force

of law. In fact, we may be in a better position”).

Furthermore, Auer has been extended to agency

interpretation of rules that other agencies have

promulgated, where the “interpreting” agency would

be in no better position to “reconstruct” the purpose of

the regulation than the judiciary. Pauley v.

BethEnergy Mines, Inc., 501 U.S. 680, 696–99 (1991).

By predicating application on a threshold

determination of “ambiguity,” deference canons also

introduce personal bias and inconsistency into the

judicial process. Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2139

(2016) (reviewing Robert A. Katzmann, Judging

Statutes (2014)). Canons of deference stymie the

development and deployment of “neutral and

impartial . . . interpretive rules” of construction. Id. at

2121.

In all of these respects, Seminole Rock and Auer

impair the functioning of the judiciary and place

binding judicial power in the hands of the executive

branch.

28

CONCLUSION

For the foregoing reasons, this Court should

abandon Auer deference.

DATED: January, 2019.

Respectfully submitted,

TODD F. GAZIANO

THOMAS A. BERRY

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 610

Arlington, VA 22201

(202) 888-6881

ANTHONY L. FRANÇOIS*

*Counsel of Record

DAMIEN M. SCHIFF

DANIEL M. ORTNER

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

(916) 419-7111

TFrancois@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation,

Chantell and Michael Sackett, and Duarte Nursery, Inc.