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 L. WILKIE,

Secretary of Veterans Affairs,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF OF STEPHEN C. CONNAKER AND

THE MILITARY & VETERANS’ LAW

INSTITUTE AS AMICI CURIAE IN

SUPPORT OF THE PETITIONER

WILLIAM J. BROWN, JR.

Counsel of Record

MATTHEW K. WEGNER

BROWN WEGNER LLP

SUITE 1260

2010 MAIN STREET

Irvine, California 92614

bill@brownwegner.com

(949) 705-0080

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT.................................. 4

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

I.

Separation of Powers Is One of the Most

Important Structural Features of the

Constitutional Design to Protect Liberty. 6

II.

Seminole Rock and Auer Deference Violate

the Separation of Powers. ....................... 11

III. Auer and Seminole Rock May be

Overruled Consistent with Traditional

Stare Decisis Principles. ......................... 17

CONCLUSION ....................................................... 21

ii

TABLE OF AUTHORITIES

CASES

Agostini v. Felton, 521 U.S. 203 (1997) ................ 19

Auer v. Robbins, 519 U.S. 452 (1997) ....... 4, 5, 7, 13

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

(1945) ....................................................... 4, 5, 7

Buckley v. Valeo, 424 U.S. 1 (1976) ...................... 10

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ............................. 5, 14, 16

Christensen v. Harris Cty., 529 U.S. 576 (2000) .. 19

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

142 (2012)....................................................... 18

Decatur v. Paulding, 39 U.S. 497 (1840) .............. 19

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013)

.................................................................... 7, 17

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

(3d Cir. 2017) ................................................. 18

FCC v. Fox Television Stations, Inc., 556 U.S. 502

(2009) ............................................................. 15

FCC v. MCI Telecommunications Corp., 439 U.S.

980 (1978)....................................................... 13

Garco Const., Inc. v. Speer, 138 S.Ct. 1052 (2018). 6

Gonzales v. Oregon, 546 U.S. 243 (2006) ............. 19

INS v. Chadha, 462 U.S. 919 (1983) .......... 9, 10, 20

iii

TABLE OF AUTHORITIES

(continued)

Janus v. Am. Federation of State, Cty., and Mun.

Employees, Council 31, 138 S.Ct. 2448 (2018)

.................................................................. 18, 19

Kilbourn v. Thompson, 103 U.S. 168 (1880) ........ 10

Marbury v. Madison, 5 U.S. 137 (1803) ..... 6, 11, 15

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

(1990) ............................................................. 13

Miller v. Johnson, 515 U.S. 900 (1995) .......... 15, 18

Mistretta v. United States, 488 U.S. 361 (1989).. 10,

11

Morrison v. Olson, 487 U.S. 654 (1989)............ 8, 12

Motor Vehicle Mfrs. Assn. of United States, Inc. v.

State Farm, 463 U.S. 29 (1983) ..................... 15

National Cable & Telecommunications Ass’n v.

Brand X Internet Services, 545 U.S. 967 (2005)

........................................................................ 14

Payne v. Tennessee, 501 U.S. 808 (1991) ........ 17, 20

Pearson v. Callahan, 555 U.S. 223 (2009) ..... 18, 20

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

(2015) ............................................................... 7

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)

...........................................................6, 8, 14, 20

Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989)................. 18

Seminole Rock ................................................. 12, 13

iv

TABLE OF AUTHORITIES

(continued)

Springer v. Philippine Islands, 277 U.S. 189 (1928)

........................................................................ 11

Talk Am., Inc. v. Michigan Bell Tel. Co., 564 U.S.

50 (2011)......................................................... 19

Talk America, Inc. v. Michigan Bell Tel. Co., 564

U.S. 50 (2011) .................................................. 7

Turtle Island Restoration Network v. United States

Dep’t of Commerce, 878 F.3d 725 (9th Cir.

2017) ............................................................... 18

United States Telecom Ass’n v. FCC, 825 F.3d 674

(D.C. Cir. 2016) .............................................. 14

United States v. Klein, 13 Wall. 128 (1872) ......... 12

United States v. Nixon, 418 U.S. 683 (1974) .. 11, 15

United Student Aid Funds, Inc. v. Bible, 136 S.Ct.

1607 (2016)....................................................... 7

OTHER AUTHORITIES

1 William Blackstone, COMMENTARIES ON THE LAWS

OF ENGLAND 58 (William S. Hein & Co. ed.,

1992) ........................................................... 8, 16

Brutus, Essay XV (1788), 2 THE COMPLETE ANTIFEDERALIST 437 (Herbert J. Storing ed. 1981) 9

John Adams, Letter XLIX, 1 A DEFENSE OF THE

CONSTITUTIONS OF GOVERNMENT OF THE

UNITED STATES OF AMERICA 323 (The Lawbook

Exchange Ltd. 3rd ed., 2001) ......................... 10

v

TABLE OF AUTHORITIES

(continued)

John Locke, THE SECOND TREATISE ON

GOVERNMENT 82 (Thomas P. Peardon,

ed.,1997) ........................................................... 8

Montesquieu, THE SPIRIT OF THE LAWS 152 (Franz

Neumann ed. & Thomas Nugent trans., 1949)8

Philip Hamburger, IS ADMINISTRATIVE LAW

UNLAWFUL? 294 (2014) .................................. 19

The Federalist No. 47 (James Madison) (C. Kesler

and C. Rossiter, ed., 2003)............................... 5

The Federalist No. 48 (James Madison) .......... 9, 10

The Federalist No. 51 (James Madison)9, 10, 12, 15

The Federalist No. 70 (Alexander Hamilton) ...... 13

The Federalist No. 78 ........................................... 16

The Federalist No. 9 (Alexander Hamilton) .......... 9

Thomas Jefferson, Jefferson to Adams, THE ADAMSJEFFERSON LETTERS 199 (Lester J. Cappon ed.,

1959) ................................................................. 9

1

INTEREST OF AMICI CURIAE1

Amicus Curiae, Mr. Stephen C. Connaker is a

Vietnam-era US Army veteran, who suffered for

decades with Post Traumatic Stress Disorder and

other debilitating mental ailments stemming from

psychological trauma he suffered when he was

nineteen years old, during his service in the Army.

In April of 2007, Mr. Connaker submitted a claim for

Veterans Administration benefits, but the VA issued

a decision denying the claim on the ground that his

ailments were not connected to his military service.

The toll of the mental conditions and lack of benefits

left Connaker homeless and in despair after his

claim was denied.

In 2009, Mr. Connaker retained the pro bono

lawyers and law students at Amicus Curiae, The

Military & Veterans’ Law Institute, to assist him in

litigating his case before the VA. His counsel filed a

Notice of Disagreement to appeal the decision

denying his claim, which triggered a De Novo

Review of his claim pursuant to 38 C.F.R. § 3.2600.

In April 2010, a VA Decision Review Officer issued a

decision finding that Mr. Connaker’s PTSD and

other mental conditions were indeed connected to

his military service, awarding him a 100% disability

rating, with retroactive benefits dating back to the

1 This brief is filed with the consent of the parties.

Counsel for

Petitioner consented to the filing of this brief via electronic

mail sent to counsel for amici curiae, and counsel for

Respondent filed a blanket consent. No party, and no party’s

counsel, authored this brief in whole or in part. No person,

other than amicus curiae and its counsel, paid for or made

monetary contributions to fund the preparation or submission

of this brief.

2

initial date of his claim, April 12, 2007. This entitled

Mr. Connaker to significant back-pay.

Mr. Connaker is an interested person because

he knows - first hand - how difficult maneuvering in

the claims process of VA can be, particularly for

those veterans suffering with PTSD. Mr. Connaker

spent a great deal of time and effort attempting

unsuccessfully to navigate his way through the VA

administrative claims process without counsel.

Given his complicated circumstances and the unique

nature of his condition, Mr. Connaker believes he

could not have succeeded in his claim without

assistance of counsel. Like many veterans, such as

the Petitioner in this case, Mr. Kisor, Mr. Connaker

has suffered with chronic PTSD connected to his

service in the military. Mr. Connaker wishes to

emphasize to the Court that the award of VA

benefits, and particularly the retroactive back-pay,

is what allowed him to begin putting his life back

together and to begin recovering from the decades of

suffering. He realizes that it is a matter of good

fortune that his claim was granted and that it did

not take many more years. For that reason, Mr.

Connaker deeply sympathizes with his fellow

veterans whose VA cases face greater delays or

unwarranted difficulties.

Mr. Connaker believes that Mr. Kisor suffered

unnecessarily, without benefits and treatment he

needed, for more than two decades. Mr. Connaker, a

fellow veteran, has an abiding interest in this case.

He believes it is an important opportunity for the

Supreme Court to do away with interpretive

deference--a systemic hurdle that provides officials

3

at the Veterans Administration unjust discretion to

deny otherwise meritorious claims.

Amicus Curiae The Military and Veterans’ Law

Institute is a premiere non-profit research,

academic, and clinical center at Chapman

University. The Institute’s legal clinic provides pro

bono representation to military personnel and

veterans in matters ranging from military Discharge

Upgrades, Traumatic Service Group Life Insurance

Appeals, and VA Benefits Appeals, as well as other

matters arising under federal statutes, such as

including the Service Members Civil Relief Act

(SCRA) and the US Employment and Reemployment Rights Act (USERRA). In addition to

direct

representation

of

veterans

and

servicemembers, The Military and Veterans’ Law

Institute faculty also engage in scholarly research

and writing. They have testified before Congress on

issues ranging from military voter protections, to

Guantanamo Bay, to personnel issues impacting

Military members, and regularly publish opinion

pieces. The Institute’s founder and Executive

Director, Professor Kyndra Rotunda, has published

textbooks and legal practice guides for other clinics

and practitioners who represent military member

and veterans.

This case is of particular interest to amici

because the outcome could affect all veterans whose

eligibility for benefits is subject to administrative

determinations; this naturally impacts the mission

of the Military and Veterans’ Law Institute and the

individuals it serves. Given its mission of supporting

veterans, the Military and Veterans’ Law Institute

has a keen interest in ensuring that veterans like

4

Petitioner do not have their rights abridged by

judicial deference to agency interpretations that

would otherwise be rejected.

The Institute’s most significant struggle in

representing its clients arises from the systemic

uncertainty of the VA’s and other administrative

boards’ shifting interpretations of regulations to

reach results that favor the agency. Based on

extensive first-hand experience representing pro

bono clients who are prejudiced by random

determinations and misplaced deference to agency

decisions, the Institute contends that the continued

application of Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) and Auer v. Robbins, 519 U.S.

452 (1997) serves no good purpose. Amici

acknowledge that other members of the regulated

public, who are subject to a vast array of

administrative

interpretations,

face

similar

disadvantages when challenging agencies. Affording

such deference effectively enables the executive

branch to usurp judicial and legislative powers-powers that the Constitution expressly assigns

exclusively to the other co-equal branches. This case

presents the Court with an opportunity to review

this controversial standard and to restore the proper

structural limits on the administrative functions.

SUMMARY OF ARGUMENT

This case asks whether the Constitution’s text

and structure, specifically its separation of powers

principles, require or permit courts to defer to a

federal administrative agency’s interpretation of its

own ambiguous regulations.

In fact, that

interpretive authority belongs primarily to the

5

judiciary because “the preservation of liberty

requires that the three great departments of power

should be separate and distinct;” and because,

concomitantly, the agencies’ interpretation of their

own regulations is a usurpation of the judicial

prerogative. The Federalist No. 47 (James Madison)

(C. Kesler and C. Rossiter, ed., 2003).

The doctrine of deference to an agency’s

interpretation of its own regulations, first

announced in Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945), and ossified in Auer v. Robbins,

519 U.S. 452 (1997), violates standard separation of

powers principles. Those principles are derived from

the three Vesting Clauses of the Constitution

allocating the limited national government’s powers

to a Congress, a President, and a judiciary.

Deferring to an agency’s interpretation of its own

regulations is no less indefensible than deferring to

Congress about the meaning of statutes would be. It

is also a recipe for post-hoc agency gamesmanship to

ensure the regulator generally wins over the

regulated, the governor over the governed. This is

not the scheme of separated powers the Framers

envisioned.

Furthermore, by misallocating judicial power

and thus threatening individual liberty, Auer

exacerbates the extant problem of delegation of

lawmaking powers to unelected executive officials.

That delegation already is at the constitutional

breaking point under step two of the Chevron

doctrine. Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1984). Auer also

deprives the judiciary of its constitutionallyensconced and rightful authority to interpret the

6

laws, an authority this Court has recognized for the

past 215 years. See Marbury v. Madison, 5 U.S. 137,

177 (1803) (“It is emphatically the province and duty

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

Several members of this Court have in recent years

acknowledged the constitutional problems with the

Auer deference doctrine, and the doctrine should

now be overruled.

ARGUMENT

I. Separation of Powers Is One of the Most

Important Structural Features of the

Constitutional Design to Protect Liberty.

Essential for the preservation of individual

liberty, the Constitution’s separation of powers is “a

structural safeguard rather than a remedy to be

applied only when specific harm, or risk of specific

harm, can be identified.” Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 239 (1995) (Scalia, J.) (emphasis

in original). It is “a prophylactic device, establishing

high walls and clear distinctions because low walls

and vague distinctions will not be judicially

defensible in the heat of interbranch conflict.” Id.

Several members of this Court have recognized

that various doctrines of deference to the unelected,

unaccountable, and largely-unknown federal

bureaucracy might be difficult to reconcile with the

separation of powers’ “high walls.” Id. In particular,

members of this Court believe that Auer deference is

on its “last gasp.” Garco Const., Inc. v. Speer, 138

S.Ct. 1052, 1053 (2018) (Thomas, J., joined by

Gorsuch, J., dissenting from denial of certiorari); id.

at

1052

(“Seminole

Rock

deference

is

constitutionally suspect.”); United Student Aid

7

Funds, Inc. v. Bible, 136 S.Ct. 1607, 1608 (2016)

(Thomas, J., dissenting from denial of certiorari).

Even Auer’s author rejected the doctrine. See Perez

v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1213 (2015)

(Scalia, J., concurring in judgment) (announcing

that he would be “abandoning” the holding in Auer

that he himself authored); Decker v. Nw. Envtl. Def.

Ctr., 568 U.S. 597, 620-21 (2013) (Scalia, J.,

concurring in part and dissenting in part) (“Auer is .

. . a dangerous permission slip for the arrogation of

power” (citing Talk America, Inc. v. Michigan Bell

Tel. Co., 564 U.S. 50, 67-68 (2011) (Scalia, J.,

concurring)); John F. Manning, “Constitutional

Structure and Judicial Deference to Agency

Interpretations of Agency Rules,” 96 Colum. L. Rev.

612 (1996)); see also Perez, 135 S. Ct. at 1213

(Thomas, J., concurring in judgment) (“these cases

call into question the legitimacy of our precedents

requiring

deference

to

administrative

interpretations of regulations”); id. at 1210-11

(Alito, J., concurring in part and concurring in

judgment) (“The opinions of Justice Scalia and

Justice Thomas offer substantial reasons why the

Seminole Rock doctrine may be incorrect. . . . I await

a case in which the validity of Seminole Rock may be

explored through full briefing and argument”);

Decker, 133 S.Ct. at 1338 (Roberts, C.J., joined by

Alito, J., concurring) (“It may be appropriate to

reconsider that principle in an appropriate case”).

There is good reason for this willingness to

reconsider Auer. The rule announced in Seminole

Rock and confirmed in Auer contravenes the

separation of powers—a structural feature of the

federal constitution considered vital by the Framers

8

and Ratifiers—because it gives to the agencies the

judiciary’s prerogative of construing ambiguous

regulations. Auer damages the judiciary, of course,

but it also damages the Executive by setting up an

inherent conflict between the President and the

agencies. Ultimately, though, Auer’s denigration of

the separation of powers injures the individual’s

liberty the most. In this respect, Auer’s sins are

obvious, and no “careful and perceptive analysis” is

required to observe the “important [and adverse]

change in the equilibrium of power” it effectuates.

Morrison v. Olson, 487 U.S. 654, 699 (1989) (Scalia,

J., dissenting).

But even if Auer’s threat to

individual liberty somehow had rendered it just a

wolf “in sheep’s clothing,” id. (Scalia, J., dissenting),

the separation of powers’ “high walls and clear

distinctions” would still require its demise, Plaut,

514 U.S. at 239.

Separation of the powers of government is

foundational to our constitutional system precisely

because the Framers and Ratifiers of the

Constitution understood well that this principle was

necessary to protect individual liberty. Accordingly,

the founding generation relied on the works of Baron

de Montesquieu, William Blackstone, and John

Locke for the proposition that institutional

separation of powers was an essential protection

against arbitrary government.

See e.g.

Montesquieu, THE SPIRIT OF THE LAWS 152 (Franz

Neumann ed. & Thomas Nugent trans., 1949); 1

William Blackstone, COMMENTARIES ON THE LAWS OF

ENGLAND 58 (William S. Hein & Co. ed., 1992); John

Locke, THE SECOND TREATISE ON GOVERNMENT 82

(Thomas P. Peardon, ed.,1997).

9

These warnings against consolidated power

resulted in structural separation of power

protections in the design of the federal government

itself. The Federalist No. 51 (James Madison), supra

at 318; The Federalist No. 47, supra at 298-99; The

Federalist No. 9 (Alexander Hamilton), supra at 67;

see also Thomas Jefferson, Jefferson to Adams, THE

ADAMS-JEFFERSON LETTERS 199 (Lester J. Cappon

ed., 1959). That design divided the power of the

national government into three distinct branches, by

vesting the legislative authority in Congress, the

executive power in the President, and the ultimate

judicial responsibilities in this Court.

INS v.

Chadha, 462 U.S. 919, 951 (1983).

The ratification debates demonstrate the

importance of this separation to the founding

generation. Accepting as a given that power needed

to be separated, the ratifying generation debated

whether the proposed constitutional text separated

power enough. The Federalist No. 48 (James

Madison), supra at 305. This was a rare issue on

which the federalists and the anti-federalists

agreed. Even the anti-federalist Brutus noted that

“[when] power is lodged in the hands of men

independent of the people, and of their

representatives . . . no way is left to controul them.”

Brutus, Essay XV (1788), reprinted in 2 THE

COMPLETE ANTI-FEDERALIST 437, 442 (Herbert J.

Storing ed. 1981). In short, the ratifying generation

suffered from no agnosticism or crisis of confidence

about the urgent imperative to diffuse power both

horizontally (among the coordinate federal

branches) and vertically (between the United States

and the sovereign States).

10

Alarmed that just stopping one branch from

exercising the powers of another would prove

insufficient, the Framers designed a system that

vested each branch with the power necessary to

resist encroachments by another. The Federalist

No. 48, supra at 305. Madison explained that what

the anti-federalists saw as a violation of separation

of powers was in fact the checks and balances

necessary to enforce separation. Id.; The Federalist

No. 51 (James Madison), supra at 317-19; see

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

To preserve the structure set out in the

Constitution, and thus protect individual liberty, the

constant pressures of each branch to exceed the

limits of their authority must be resisted. So much

so that any attempt by any branch of government to

encroach on another branch’s powers, even if the

other branch acquiesces in the encroachment, is

void. Chadha, 462 U.S. at 957-58; Kilbourn v.

Thompson, 103 U.S. 168, 191 (1880). The duty falls

on the judicial branch, in particular, to enforce this

essential protection of liberty. Chadha, 462 U.S. at

944-46. To be sure, the Constitution was designed

to pit ambition against ambition and power against

power. The Federalist No. 51, supra at 319; see also

John Adams, Letter XLIX, 1 A DEFENSE OF THE

CONSTITUTIONS OF GOVERNMENT OF THE UNITED

STATES OF AMERICA 323 (The Lawbook Exchange

Ltd. 3rd ed., 2001). But when this structural

competition of interests does not stop an

encroachment, this Court is obligated to void acts

that overstep the bounds of separated power.

Buckley v. Valeo, 424 U.S. 1, 123 (1976); Kilbourn v.

Thompson, 103 U.S., at 199. Judicial engagement at

11

such critical moments is an imperative and a virtue,

not a vice. It is a principal reason that the judiciary

was created.

II. Seminole Rock and Auer Deference Violate

the Separation of Powers.

The judiciary, like any other branch, must

jealously guard its rightful authority so that

structural protection of individual liberty flourishes.

See Springer v. Philippine Islands, 277 U.S. 189,

201-02 (1928) (“the executive cannot exercise either

legislative or judicial power.”). The judiciary readily

has done so in the past and must always be prepared

to do so in the future. Mistretta, 488 U.S. at 382

(“[W]e have not hesitated to strike down provisions

of law that either accrete to a single Branch powers

more appropriately diffused among separate

Branches or that undermine the authority and

independence of one or another coordinate

Branch.”).

While each branch has its own

constitutional duty to interpret and adhere to the

Constitution, the judiciary cannot abdicate its own

constitutional responsibility to interpret the law by

giving dispositive deference to the interpretations of

the other branches. United States v. Nixon, 418 U.S.

683, 704 (1974) (“[T]he judicial power . . . can no

more be shared with the Executive Branch than the

Chief Executive, for example, can share with the

Judiciary the veto power. . . . Any other conclusion

would be contrary to the basic concept of separation

of powers.”).

The power to interpret regulations and to give

authoritative effect to those interpretations is a

judicial power. Marbury, 5 U.S. at 177. The

12

deference shown under Seminole Rock and Auer

abdicates

the

judiciary’s

constitutional

responsibility of construing regulations to the

agencies. Thus, this deference cedes judicial power

to the Executive; and it invites the very

concentration of power that the founding generation

rejected. See Manning at 674-75; The Federalist No.

51, supra at 318-19 (“[T]he great security against a

gradual concentration of the several powers in the

same department, consists in giving to those who

administer each department the necessary

constitutional means, and personal motives, to resist

encroachments of the others”). As Dean Manning

has observed, Seminole Rock deference also dilutes

political constraints on agency action, allowing

narrow interest groups to wield disproportionately

large influence on the agency. See Manning at 675.

Additionally, Auer deference damages the

Executive because it induces a President/agency

schism, Article II’s Vesting Clause notwithstanding.

See Art. II, § 1, cl. 1 (“[t]he executive Power shall be

vested in a President of the United States”)

(emphasis added); see also Morrison, 487 U.S. at

698-99 (Scalia, J., dissenting) (analyzing historical

sources); United States v. Klein, 13 Wall. 128, 147

(1872)

(disfavoring

even

“inadvertent”

encroachments of one branch on another’s preserve).

Often, the President has little, if any, control over

the interpretation given to a regulation by an agency

supposedly reposed within his branch and under his

Article II authority.

The President’s and the

agency’s interpretive approaches and bottom-line

views on what a legal instrument means might, and

often do, clash. See, e.g., Metro Broadcasting, Inc. v.

13

FCC, 497 U.S. 547, 551 (1990) (contradictory briefs

filed by the United States and the Federal

Communications Commission (FCC) as to the

constitutionality of the FCC’s affirmative-action

program); Petitioner FCC’s Reply to “Brief for the

United States in Opposition” at 1 n.1 (FCC brief in

case construing an agency order chiding the Solicitor

General and “questioning exactly what interests of

the United States the Solicitor legitimately

represents in this case.”), FCC v. MCI

Telecommunications Corp., 439 U.S. 980 (1978)

(cert. denied). Auer creates these fissures within the

Executive Branch and threatens the President’s

traditional dominion over his own branch.

According to the Framers and Ratifiers of our

Constitution, such an intra-Executive schism

disrupts the Presidency’s “unity,” which “is

conducive to [its] energy,” and its structural

integrity.

The Federalist No. 70 (Alexander

Hamilton), supra at 422-23. Realizing some of the

worst fears of the Framing generation, Auer

deference has “destroyed” the Presidency’s “unity”

by splitting its power and “vesting” it “in two or more

magistrates of equal dignity and authority.” Id. at

423. No longer does the President get to enjoy the

residual executive power that Article II vests only in

that office. Instead, Auer has “[en]feeble[d]” the

Presidency, a result that “implies a feeble execution

of the government” itself—thus demoting it to the

status of being “a bad government.” Id. at 422. As

a consequence, Seminole Rock and Auer have

inflicted incalculable injury on both the judiciary

and the Executive. To paraphrase Justice Scalia’s

14

opinion for the Plaut Court, weak fences make weak

neighbors. 514 U.S. at 240.

To be sure, Congress might be able to delegate

the task of filling in scientific and technical details

in a regulatory scheme to an agency by “leaving a

gap for the agency to fill” through a formal process

of notice-and-comment rulemaking. Chevron USA,

467 U.S. at 843-44.2 The purpose in doing this is to

allow an agency to exercise its unique expertise in

the service of the policy adopted by Congress. Once

the agency has “filled the gap” left by Congress

through the formal rulemaking process, however, no

deference should be shown to any subsequent

interpretation (or reinterpretation) of those

regulations. If an agency finds the need to reverse

its policy or significantly alter its position, it has the

power to do so. It only needs to promulgate a new

rule, through the notice-and-comment process,

explaining the reasons for its change. Motor Vehicle

Mfrs. Assn. of United States, Inc. v. State Farm, 463

2

This should be distinguished from deferring to

administrative diktats that the statutory text means one thing

on one day, and something completely different on another day.

Compare National Cable & Telecommunications Ass’n v. Brand

X Internet Services, 545 U.S. 967, 973 (2005) (upholding FCC

determination that broadband internet providers were

computer service providers rather than telecommunication

providers under the Telecommunications Act of 1996) with

United States Telecom Ass’n v. FCC, 825 F.3d 674, 695 (D.C.

Cir. 2016), cert. denied, 139 S.Ct. 454 (2018) (upholding FCC’s

new ruling that broadband internet providers are now

telecommunications providers rather than computer services

providers—under the same statutory scheme).

15

U.S. 29, 42 (1983); FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 514-15 (2009).

The ultimate power to interpret the meaning of

a regulation—as a legal text—properly belongs to

the judiciary, not the agency that promulgated that

regulation. Of course, in applying a regulation, the

agency must make some interpretation in practice.

But that necessary executive function cannot

exclude the judiciary from exercising its

constitutional authority.

Continuing to give

controlling deference under Auer and Seminole Rock

to agency interpretations transfers the judiciary’s

constitutional power to the Executive.

From the early days of the Republic, this Court

has agreed that the courts have both the power and

duty to interpret the law. See Marbury, 5 U.S. at

177. Later cases have relied on these principles to

reject a call for deference to legal interpretations by

the Department of Justice. Miller v. Johnson, 515

U.S. 900, 922-23 (1995). Each branch of government

must support and defend the Constitution and thus

must interpret the Constitution. The Courts may

not, however, cede their judicial power to interpret

the laws to the Executive. See Nixon, 418 U.S. at

704.

The scheme for balancing power between the

branches of government depends on each branch

exercising the full extent of its power.

The

Federalist No. 51, supra at 269. This explains why

this Court in Marbury did not simply declare legal

interpretation to be a judicial power. Instead, the

Court ruled that it was the duty of the judiciary to

exercise that power. Marbury, 5 U.S. at 177. In

16

order to keep the political branches in check, this

Court may not surrender its power to interpret the

law to either of the political branches. The failure to

exercise this duty would be an invitation to

“partiality and oppression.” 1 William Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND, Bk 1 § 2,

at 58 The rule of controlling deference to agency

interpretation of ambiguous regulations, however, is

a surrender of judicial power and a decision to cede

to the Executive the judicial power.

Chevron deference, when applied to an agency,

using its specialized expertise, to merely fill a gap in

the technical details of a regulatory scheme, does not

raise the same concerns for separation of powers

present here.

Under this original purpose of

Chevron deference, the Court does not cede its power

to interpret the law. Instead, the Court recognizes

that Congress gives agencies clear policy guidance

and then relies on those agencies to employ their

specialized expertise (such as what level of exposure

to a particular chemical is harmful) to fill in gaps in

the legislative scheme. Until the agency has filled

in those gaps in, the statute may not yet be complete

in the sense that specialized expertise must be

brought to bear on the problems that Congress

sought to address. This use of agency expertise by

Congress to fill in details in the regulatory scheme

is not a part of the judicial function.

Once the agency has issued a regulation that

carries the force of law, however, it then falls to the

courts to interpret the regulation. In other words, it

is the judiciary’s job “to declare the sense of the law.”

The Federalist No. 78, supra at 405.

17

Granting deference to the agency to interpret its

own ambiguous regulation cedes the judicial

function to the Executive. This is an invitation to

agencies to avoid the expense and bother of

rulemaking proceedings when it wants to change its

policy. Instead of going through the process to allow

public participation and judicial review of the

change, it can instead merely change how it

interprets its existing regulations.

Denying “controlling deference” to an agency

interpretation does not mean that the courts must

ignore long-standing agency interpretations and

practices. Those remain important interpretative

tools. Yet the ultimate job of interpreting the legal

text will remain with the courts. To do otherwise

results in a failure of the duty of the judicial branch

of government “to declare the sense of the law” and

thus violates the separation of powers required by

the Constitution.

III. Auer and Seminole Rock May be Overruled

Consistent with Traditional Stare Decisis

Principles.

“Stare decisis is not an inexorable command.”

Payne v. Tennessee, 501 U.S. 808, 828 (1991). For

several reasons, stare decisis does not support

retaining Auer and Seminole Rock.

First, these decisions were not well-reasoned

and, as explained earlier, remain indefensible.

Seminole Rock, Justice Scalia noted, “offered no

justification whatever” for deferring to an agency’s

interpretation of its own regulation. Decker, 568

U.S. at 617-18 (Scalia, J., concurring in part and

dissenting in part); see also Janus v. Am. Federation

18

of State, Cty., and Mun. Employees, Council 31, 138

S.Ct. 2448, 2479 (2018) (considering the precedent’s

quality of reasoning in determining whether it

should be retained). Seminole Rock and Auer

deference has been the subject of special criticism by

members of this Court and by lower court judges

struggling to understand and apply the doctrine

properly. Pearson v. Callahan, 555 U.S. 223, 234-35

(2009) (modifying the qualified-immunity inquiry

for similar reasons); see also Egan v. Delaware River

Port Auth., 851 F.3d 263, 278 (3d Cir. 2017) (Jordan,

J., concurring in judgment) (“The problems [Auer

and Chevron] create are serious and ought to be

fixed.”); Turtle Island Restoration Network v. United

States Dep’t of Commerce, 878 F.3d 725, 742 n.1 (9th

Cir. 2017) (Callahan, J., dissenting in part) (“Auer’s

continued vitality is a matter of considerable

debate.”).

Second, this Court’s intervening decisions have

removed or weakened Auer’s and Seminole Rock’s

conceptual underpinnings. Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477,

480-81 (1989). As an initial matter, this Court now

gives primacy to the salient instrument’s text and

structure, which has not always been the case.

Miller, 515 U.S. at 922-23. Therefore, the agencies’

views on what their regulations mean has

diminished value to the Court. Moreover, this Court

has abrogated Auer’s predicates and rendered what

remains of the original deference a problematic

anomaly. See Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 155-56 (2012) (holding that

Auer is applicable to an agency’s “interpretation of

ambiguous regulations [that would] impose

19

potentially massive liability on [the regulated

entity] for conduct that occurred well before that

interpretation was announced”); Talk Am., Inc. v.

Michigan Bell Tel. Co., 564 U.S. 50, 63-64 (2011)

(indicating that Auer proscribes agencies from

issuing what effectively amounts to a new

regulation); Gonzales v. Oregon, 546 U.S. 243, 257

(2006) (holding that Auer is applicable where the

regulation simply paraphrases the statute);

Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)

(holding that Auer is applicable where the agency’s

regulation is unambiguous).

Moreover, Auer and Seminole Rock themselves

are relatively recent aberrations in the historical

trajectory of judicial deference. See, e.g., Decatur v.

Paulding, 39 U.S. 497, 515 (1840) (Marshall, C.J.);

Philip Hamburger, IS ADMINISTRATIVE LAW

UNLAWFUL? 294 (2014) (stating that the early

Supreme Court’s “lack of deference” to the Executive

meant that “[t]he judges had to defer to the law, not

the Executive’s interpretation”). Erasing these

anomalies will enhance the interests of continuity

and stability in the law and thus the interests of

stare decisis itself. See Janus, 138 S.Ct. at 2483-84.

Otherwise, stare decisis would become an empty

talisman reflexively attached to the latest

authoritative judicial pronouncement, a canon

decoupled from the very interests it is supposed to

advance.

Third, a precedent receives weak stare decisis

effect when: It is a constitutional (instead of

statutory) case, see Agostini v. Felton, 521 U.S. 203,

235 (1997); it addresses the evidentiary and

procedural rules facing stakeholders, not their

20

primary conduct engendering reliance and

expectancy, see Pearson, 555 U.S. at 233-34; Payne,

501 U.S. at 828; or it is just an interpretive tool, see

Pearson, 555 U.S. at 233-34. Because Seminole Rock

and Auer deference is a constitutional matter

involving the separation of powers, does “not affect

the way in which parties order their affairs,” and is

only a tool of judicial construction, it is not entitled

to stare decisis effect. Id.

Fourth, this Court most vigilantly enforces the

Constitution’s structural protections, including by

invalidating unconstitutional practices—whether

they be longstanding, see Chadha, 462 U.S. at 959,

or of recent vintage, see Plaut, 514 U.S. at 240;

United States v. Lopez, 514 U.S. 549, 551, 567-68

(1995)—because otherwise our entire constitutional

structure would unravel. The Court should so

enforce again here.

The most illustrative example of judicial

engagement to enforce our separation of powers is

Chadha, where this Court struck down the line-item

veto practice. 462 U.S. at 959. Despite the fact that

more than 200 statutes across a wide array of policy

areas over at least five decades had deployed this

practice, the Court held that the practice violated

the Constitution’s structural requirements of

bicameralism and presentment. Chadha, 462 U.S.

at 967-68 (White, J., dissenting). Nor did concern for

the extraordinary “Hobson’s choice” Congress would

face—either having to over-delegate to the

Executive or having to enact detailed statutes—

deter the Chadha Court. Id. The alterations on

which the Chadha Court insisted in response to the

21

Constitution’s

structural

necessary and worthwhile.

fortifications

were

The structural mischief Auer deference induces

is similar, in many respects, to the shortcut the

Chadha Court ended.

In both cases, the

enforcement by this Court of the structural

provisions contained in the Constitution was

essential because the character of our entire federal

government and the preservation of core individual

liberty are imperiled when the powers are hopelessly

commingled. Accordingly, this Court should restore

its coordinate branches to their proper preserves by

jettisoning Seminole Rock and Auer deference.

CONCLUSION

For the reasons stated in this brief and by

petitioner, this Court should overrule Seminole Rock

and Auer, and the judgment of the Court of Appeals

for the Federal Circuit should be reversed.

Respectfully submitted,

WILLIAM J. BROWN, JR.

Counsel of Record

BROWN WEGNER LLP

2010 MAIN STREET, SUITE 1260

Irvine, California 92614

bill@brownwegner.com

(949) 705-0080

Counsel for Amici Curiae

Stephen C. Connaker and The Military

& Veterans’ Law Institute