Amicus Curiae Brief — Indian River County, Florida, et al., Petitioners v. Department of Transportation, et al.

No. 19-1304

IN THE

Supreme Court of the United States

_________________________________________________

INDIAN RIVER COUNTY, FLORIDA, ET AL.,

Petitioners,

v.

DEPARTMENT OF TRANSPORTATION, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

MICHAEL PEPSON

R. JAMES VALVO, III

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

June 17, 2020

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 2

Argument ..................................................................... 5

I.

Reflexive Skidmore Deference Railroads the

Separation of Powers. .......................................5

II.

This Court Should Close the Throttle on

“Drive-By” Skidmore Deference. .................... 14

III.

This Court Should Provide Much-Needed

Guidance That Skidmore Does Not

Displace Basic Principles of Statutory

Interpretation Necessary to Protect the

Separation of Powers. ..................................... 19

Conclusion ................................................................. 23

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Alaska Dep’t of Envtl. Conservation v. EPA,

540 U.S. 461 (2004) ........................................... 21

Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006) ........................................... 15

Ass’n v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ............................. 16

Baldwin v. United States,

140 S. Ct. 690 (2020) ........................... 6, 8, 15, 22

Belt v. P.F. Chang’s China Bistro, Inc.,

401 F. Supp. 3d 512 (E.D. Pa. 2019) ................ 22

Bond v. United States,

564 U.S. 211 (2011) ............................................. 5

Catskill Mts. Chptr. of Trout Unlimited, Inc. v. EPA,

846 F.3d 492 (2d Cir. 2017) .............................. 21

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

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

Christensen v. Harris County,

529 U.S. 576 (2000) ........................................... 20

Christopher v. SmithKline Beecham Corp.,

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

iii

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 15

Cnty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) ......................................... 9

E.I. Dupont de Nemours & Co. v. Smiley,

138 S. Ct. 2563 (2018) ........................... 13, 15, 20

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ................................. 10, 23

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) ........................................... 21

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ........................... 6

Indian River Cnty. v. Dep’t of Transp.,

945 F.3d 515 (D.C. Cir. 2019) ............... 16, 17, 18

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ................................passim

La. Pub. Serv. Com v. FCC,

476 U.S. 355 (1986) ........................................... 16

Lyng v. Payne,

476 U.S. 926 (1986) ........................................... 16

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .......................... 2, 5

Nasrallah v. Barr,

No. 18–1432, Slip. Op., 590 U.S.____(2020) ..... 17

iv

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ................................. 12, 14

Perez v. Mortg. Bankers Ass’n,

135 S. Ct. 1199 (2015) ......................................... 6

PhotoCure Asa v. Kappos,

603 F.3d 1372 (Fed. Cir. 2010) ......................... 23

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008) ........................................... 21

Sicklesmith v. Hershey Entm’t & Resorts Co.,

No. 19-1675, 2020 U.S. Dist. LEXIS 32042

(M.D. Pa. Feb. 25, 2020) ................................... 22

United States v. Mead Corp.,

533 U.S. 218 (2001) ..................................... 19, 20

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019) ................... 8, 12, 18

Voices for Int’l Bus. & Educ., Inc. v.

Nat’l Labor Relations Bd.,

905 F.3d 770 (5th Cir. 2018) ............................. 13

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................. 3

Constitution

U.S. CONST. Art. III, § 1 ......................................... 22

v

Other Authorities

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 Yale L.J. 908 (2017) ............................... 9, 10

Bradley George Hubbard, Comment,

Deference to Agency Statutory Interpretations

First Advanced in Litigation? The Chevron

Two-Step and the Skidmore Shuffle,

80 U. Chi. L. Rev. 447 (2013).............................. 9

C.D. Erhard, Betrachtungen über Leopolds

des Weisen Gesetzgebung in Toscana,

Richter, 1791 ..................................................... 10

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 Mich. L. Rev. 1 (2017) .................................. 7

Kristin E. Hickman & Matthew D. Krueger,

In Search of the Modern Skidmore Standard,

107 Colum. L. Rev. 1235 (2007)........ 7, 15, 19, 20

Philip Hamburger,

Is Administrative Law Unlawful? (2014) ........... 9

Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) ..................... 8

Richard J. Pierce, Jr., Justice Scalia’s Unparalleled

Contributions to Administrative Law,

101 Minn. L. Rev. Headnotes 66 (2016). .......... 19

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners. 1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. One

of those key ideas is the separation of powers vital to

liberty. As part of this mission, it appears as amicus

curiae before federal and state courts.

AFPF believes that judicially created executivebranch deference regimes are inconsistent with

bedrock separation-of-powers principles and the text,

structure, and history of the U.S. Constitution. These

doctrines—Chevron, Auer, Skidmore, Brand X, and

the like—wrongly place a thumb on the scale of the

nation’s most powerful litigant (the federal

government), rigging the game against the American

people. Due process and basic fairness demand that

1 All parties consented to the filing of this brief.

Petitioners and

the Solicitor General’s Office received timely notice. Due to an

oversight, Respondent AAF Holdings, Inc. was not afforded 10

days’ notice per Rule 37.2(a). AFPF sought consent from AAF on

June 16, 2020; AAF graciously consented that day. No counsel

for a party authored this brief in whole or in part and no person

other than amicus or its counsel made any monetary

contributions intended to fund the preparation or submission of

this brief.

2

private litigants be on equal footing with the

government in disputes in Article III courts.

AFPF believes executive-branch deference is

unconstitutional and the case law creating, blessing,

and expanding on such deference regimes should be

abandoned. These judicially developed doctrines of

administrative law have fundamentally and wrongly

altered the constitutional balance of powers among

the branches of government.

Lower federal courts should not be permitted to

accede to federal agencies’ extratextual, policy- and

outcome-driven views on the scope of agency powers

and should instead rigorously examine the purported

source of those powers: the statutory text.

AFPF has a particular interest in this case because

the decision below exemplifies a recurring problem

that has become more prevalent: drive-by deference.

SUMMARY OF ARGUMENT

It is black-letter administrative law that agency

powers are derived from, and limited by, duly enacted

federal statutes. Article III of the U.S. Constitution

tasks the Judiciary—not the Executive Branch, let

alone administrative bodies—with independently and

definitively interpreting federal statutes in contested

cases. This reflects a key concept: the separation of

powers vital to protecting our liberties. Under the

separation of powers, Congress legislates, the

Executive enforces the law, and the Judiciary says,

once and for all, “what the law is.” Marbury v.

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

disputes arise between private parties and

3

government officials charged with enforcing the law,

basic principles of due process and fairness demand

that private parties be on a level playing field with the

government in court. Equally imperative, federal

judges—who are experts in interpreting federal

statutes—should use and jealously safeguard their

independent judgment as to what the law means.

But over time, judicially developed deference

regimes have derailed and effectively transferred core

Article III powers to unelected federal bureaucrats.

Doing so has put a thumb on the scale in favor of the

nation’s most powerful litigant—the federal

government—thereby rigging the game against the

American people. For as Justice Frankfurter warned,

“[t]he accretion of dangerous power does not come in

a day. It does come, however slowly, from the

generative force of unchecked disregard of the

restrictions”

imposed

by

the

Constitution.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 594 (1952) (Frankfurter, J., concurring).

These deference doctrines, including Skidmore,

are difficult to square with the U.S. Constitution and

the Administrative Procedure Act (“APA”). Instead,

they result in extraconstitutional power-transfers

that violate bedrock separation-of-powers principles

upon which our hard-won system of checks and

balances was built. Judicial deference to the

Executive Branch’s views of laws the Legislature

wrote under Skidmore, as with its troubled cousins

Chevron and Brand X, in effect not only cedes Article I

legislative power to administrative bodies but also

voluntarily surrenders core Article III powers to them

as well. That is profoundly unconstitutional.

4

At a minimum, it is imperative that lower federal

courts receive much-needed guidance that Skidmore

does not require or authorize drive-by reflexive

deference to informal agency interpretations. Instead,

as with Chevron and Auer, courts must exhaust all

traditional tools of statutory interpretation, including

canons of construction, before considering the extent

to which Skidmore power-to-persuade deference may

apply.

As Chevron footnote 9 makes clear, “[t]he judiciary

is the final authority on issues of statutory

construction”

and

therefore

courts

must

independently exhaust “traditional tools of statutory

construction” before giving weight to an agency’s

formal interpretations of statutes. Chevron, U.S.A.,

Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984). And

as Justice Kavanaugh has explained with respect to

this Court’s efforts to limit the most pernicious effects

of Auer deference to agency interpretations of their

regulations, “the [Chevron] footnote 9 principle, taken

seriously, means that courts will have no reason or

basis to put a thumb on the scale in favor of an

agency[.]” Kisor v. Wilkie, 139 S. Ct. 2400, 2448 (2019)

(Kavanaugh, J., concurring in the judgment).

Here, the D.C. Circuit did precisely the opposite,

allowing the caboose to lead the way, by focusing first

on whether the agency’s interpretation was

“reasonable” and in an area of the DOT’s “expertise.”

But the Circuit rode the rails past the more important

threshold question of whether the statute’s text

authorized DOT’s actions. That elementary error of

statutory interpretation has severe consequences for

our constitutional order and system of checks and

balances. It is also all too common.

5

The reason for this error is that the D.C. Circuit,

along with many other lower federal courts, appear to

misconstrue Skidmore to broadly allow agencies to

bypass statutory limits on their authority based on

“informal” agency documents purporting to say what

the law means. All too many courts accede to agency

demands for deference under Skidmore without first

meaningfully examining the underlying source of the

agency’s claimed powers: the statutory text. This is so

even though courts routinely defer under Skidmore to

“informal” agency interpretations set forth in letters,

memoranda, website FAQs, and the like. Worse,

many Circuits grant Skidmore to agency litigation

positions, even in disputes between private parties

where the agency advances its interpretations in

amicus briefs.

This case provides an ideal opportunity for this

Court to clarify that Skidmore, no less than Auer, is

boxed in by the Chevron footnote 9 principle.

ARGUMENT

I.

REFLEXIVE

SKIDMORE

DEFERENCE

RAILROADS THE SEPARATION OF POWERS.

Under the separation of powers, Congress

legislates, the Executive enforces the law, and the

Judiciary says, once and for all, “what the law is.”

Marbury, 5 U.S. (1 Cranch) at 177. “Separation-ofpowers principles are intended, in part, to protect

each branch of government from incursion by the

others. . . . The structural principles secured by the

separation of powers protect the individual as well.”

Bond v. United States, 564 U.S. 211, 222 (2011). As

James Madison famously wrote, “[t]he accumulation

6

of all powers, legislative, executive, and judiciary, in

the same hands . . . may justly be pronounced the very

definition of tyranny.” The Federalist No. 47. And as

Alexander Hamilton cautioned: “liberty can have

nothing to fear from the judiciary alone, but would

have everything to fear from its union with either of

the other departments.” The Federalist No. 78.

“To the Framers, the separation of powers and

checks and balances were more than just theories.

They were practical and real protections for

individual liberty in the new Constitution.” Perez v.

Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1216 (2015)

(Thomas, J., concurring). The Founders knew that

“unchecked by independent courts exercising the job

of declaring the law’s meaning, executives throughout

history had sought to exploit ambiguous laws as

license for their own prerogative.” Gutierrez-Brizuela

v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016)

(Gorsuch, J., concurring). “The Founders expected

that the Federal Government’s powers would remain

separated—and the people’s liberty secure—only if

the branches could check each other. The Judiciary’s

checking power is its authority to apply the law in

cases or controversies properly before it.” Baldwin v.

United States, 140 S. Ct. 690, 692 (2020) (Thomas, J.,

dissenting from denial of certiorari).

“When a party properly brings a case or

controversy to an Article III court, that court is called

upon to exercise the ‘judicial Power of the United

States.’ . . . [T]he judicial power, as originally

understood, requires a court to exercise its

[independent judgment] in interpreting and

expounding upon the laws.” Perez, 575 U.S. at 119

(Thomas, J., concurring) (quoting U.S. CONST. Art. III,

7

§ 1). Under the separation of powers, as understood

by the Founders of our Constitution, “[t]he

interpretation of the laws is the proper and peculiar

province of the courts. . . . It therefore belongs to them

to ascertain . . . the meaning of any act proceeding

from the legislative body.” The Federalist No. 78

(Hamilton). At least that is how checks and balances

are supposed to work.

Yet as with other sundry judicially created

deference regimes, Skidmore transfers judicial power

to the Executive. By relinquishing its power-checking

function against the Executive via Skidmore “respect”

or deference to informal agency interpretations in

materials like letters, memoranda, and amicus briefs,

the Judiciary imperils its independence and railroads

the separation of powers that is vital to protect liberty.

It also “creates a systematic judicial bias in favor of

the federal government, the most powerful of parties,

and against everyone else.” Kisor, 139 S. Ct. at 2425

(Gorsuch, J., concurring) (cleaned up).

Empirical research “shows that Skidmore review

is highly deferential—less so than Chevron, but still

weighted heavily in favor of government agencies over

their challengers.” Kristin E. Hickman & Matthew D.

Krueger, In Search of the Modern Skidmore Standard,

107 Colum. L. Rev. 1235, 1291 (2007); see also Kent

Barnett & Christopher J. Walker, Chevron in the

Circuit Courts, 116 Mich. L. Rev. 1, 6 (2017) (empirical

study finding agency statutory interpretations

prevailed 56.0% of time under Skidmore deference, as

opposed to 38.5% under de novo review). As Professor

Philip Hamburger has explained: “The danger to

independent judgment arises whenever judges

relinquish their judgment in any degree, and the

8

danger of systematic bias arises whenever judges

show greater respect for the legal position of one party

than that of the other.” Philip Hamburger, Chevron

Bias, 84 Geo. Wash. L. Rev. 1187, 1202 (2016). As

showcased here, Skidmore’s vague, totality-of-thecircumstances analysis has this unconstitutional

effect, enabling a stealth de facto deference to federal

agencies without the requisite check of analyzing the

underlying source of that power: the statutory text.

Skidmore has been misinterpreted by some lower

federal courts to allow them to bypass the primary

source (the statutory text) to instead consult the “cliff

notes” version (here, a letter drafted in the mid-1990s

by a government lawyer). See also Pet. 10–12, 23–25.

Judicial

deference

to

government-created

secondary sources of dubious objectivity is in serious

tension with our Constitution and the APA, to say the

least.2 “In every case where an Article III court defers

to the Executive’s interpretation of a statute under

Chevron, our constitutional separation of powers is

surely disordered.” Valent v. Comm’r of Soc. Sec., 918

2 Judicially created executive-branch deference doctrines, such

as Chevron and Auer deference, raise significant constitutional

concerns. See Baldwin, 140 S. Ct. at 691 (Thomas, J., dissenting

from the denial of certiorari) (“Chevron is in serious tension with

the Constitution, the APA, and over 100 years of judicial

decisions.”); Kisor, 139 S. Ct. at 2425 (Gorsuch, J., concurring in

the judgment) (“This Court invented [Auer deference], almost by

accident and without any meaningful effort to reconcile it with

the [APA] or the Constitution.”); id. at 2446 n.114 (“To be sure,

under [Chevron] . . . we sometimes defer to an agency’s

construction of a statute. But there are serious questions, too,

about whether that doctrine comports with the APA and the

Constitution.” (citation omitted)).

9

F.3d 516, 524 (6th Cir. 2019) (Kethledge, J.,

dissenting); see also Cnty. of Maui v. Haw. Wildlife

Fund, 140 S. Ct. 1462, 1482 (2020) (Thomas, J.,

dissenting) (explaining Chevron deference “likely

conflicts with the Vesting Clauses of the

Constitution”). So too under Skidmore.3

Nor is such executive-branch deference deeply

rooted in our history.

“From the rise of the

administrative agencies, beginning in the mid-to late

nineteenth century through the New Deal, the Court

clung tightly to both the common law and its duty to

say what the law is, making ‘clear that agency

determinations . . . were to be paid no deference by a

reviewing court.’” Bradley George Hubbard,

Comment,

Deference

to

Agency

Statutory

Interpretations First Advanced in Litigation? The

Chevron Two-Step and the Skidmore Shuffle, 80 U.

Chi. L. Rev. 447, 453 (2013) (citation omitted).

Tellingly, as Professor Hamburger has explained,

under Skidmore “the Court defers to executive

interpretations even in mere opinion letters and in

Custom Service ruling letters—the sort of executive

interpretations that . . . are as old as the nation and

that traditionally were not binding or given any

3 Skidmore was decided in 1944, before the APA.

As Professor

Aditya Bamzai explained: “In his 1944 opinion in Skidmore,

Justice Jackson remarked that there was ‘no statutory provision

as to what, if any, deference courts should pay to’ agency

interpretations of statutes. Within two years, that would change

as a result of developments within the political branches that

were occurring in parallel with this new jurisprudence.” Aditya

Bamzai, The Origins of Judicial Deference to Executive

Interpretation, 126 Yale L.J. 908, 981 (2017).

10

special respect by the courts.” Philip Hamburger, Is

Administrative Law Unlawful?, 316 (2014); see also

Bamzai, The Origins of Judicial Deference, 126 Yale

L.J. at 1000 (explaining “judicial deference—as an

interpretive theory practiced from the mid-twentieth

century onwards and especially after the Court’s

opinion in Chevron—is an innovation.”).

Yet all too often federal courts reflexively defer

even to informal agency pronouncements. In doing so,

the courts avoid the third rail and instead silently

acquiesce not only to the existence of a fourth branch

of government, but to the notion that the

administrative branch is superior to the other three. 4

This state of affairs is profoundly unconstitutional.

It is one thing for federal courts to consider

informal agency statutory interpretations to the

extent they are persuasive after independently and

rigorously examining the text, structure, and history

of the statute; and exhausting all traditional tools of

statutory interpretation, including canons of

construction. Cf. Chevron, 467 U.S. at 843 n.9

(statutes); Kisor, 139 S. Ct. at 2415 (regulations).

“Where . . . the canons supply an answer, ‘Chevron

leaves the stage.’” Epic Sys. Corp. v. Lewis, 138 S. Ct.

1612, 1630 (2018) (citation omitted). It is quite

another to bypass entirely that critical—and

constitutionally required—step in the process moving

instead straight to the “cliff notes” set forth in an

informal agency interpretation and granting

“L’État, c’est moi,” Louis XIV (purportedly), C. D. Erhard,

Betrachtungen über Leopolds des Weisen Gesetzgebung in

Toscana, Richter, 1791, p. 30.

4

11

deference, as happened here. Under the separation of

powers, the order of operations matters.

And

Skidmore deference, like its cousins, is outcome

determinative: when a court determines that it

applies, the agency wins. Agencies should not be

allowed to rig the game through the simple expedient

of informally memorializing their preferred statutory

interpretation behind closed doors in internal

memoranda, Internet postings, or, as here, a letter to

another agency; nor should they be allowed to claim

Skidmore deference for interpretations announced in

amicus briefs and agency litigating positions.

“[J]udges owe the people who come before them

nothing less than a fair contest, where every party has

an equal chance to persuade the court of its

interpretation of the law’s demands.” Kisor, 139 S. Ct.

at 2425 (Gorsuch, J., concurring in the judgment).

As Judge Kethledge explained with respect to

formal agency statutory interpretations subject to

public notice and participation or, alternatively, some

adversarial process in formal agency adjudications:

Chevron directs courts to exhaust all

the “traditional tools of statutory

construction”—and there are many of

them—before surrendering to some

putative ambiguity and thereby allowing

the Executive to exercise power

belonging to another branch. . . . [A]n

Article III court should not defer to an

. . . agency’s pronouncement of “what the

law is” unless the court has exhaustively

demonstrated—and not just recited—

that every judicial tool has failed.

12

But that is hardly what happens in

reality. Instead, the federal courts have

become habituated to defer to the

interpretive views of executive agencies,

not as a matter of last resort but first. In

too many cases, courts do so almost

reflexively, as if doing so were somehow

a virtue, or an act of judicial restraint—

as if our duty were to facilitate violations

of the separation of powers rather than

prevent them.

Valent, 918 F.3d at 525 (Kethledge, J., dissenting).

Such “cursory analysis of the questions whether,

applying the ordinary tools of statutory construction,

Congress’ intent could be discerned” is “troubling,” as

this type of analysis “suggests an abdication of the

Judiciary’s proper role in interpreting federal

statutes.” Pereira v. Sessions, 138 S. Ct. 2105, 2120

(2018) (Kennedy, J., concurring). “[W]henever a

federal court declares a statute ambiguous and then

hands over to an executive agency the power to say

what the statute means, the Executive exercises a

power that the Constitution has assigned to a

different branch.” Valent, 918 F.3d at 525 (Kethledge,

J., dissenting). At the least, Article III courts should

not transfer core judicial powers to federal

bureaucrats lightly, “[f]or just as the separation of

powers safeguards individual liberty, so too the

consolidation of power in the Executive plainly

threatens it.” Id. Threshold questions like ambiguity

under Chevron are not just perfunctory speedbumps.

. . . Finding ambiguity where it does not exist—

granting deference where it is not warranted—does

not simply result in a nominal misallocation of power

13

between different branches of government. It means

that policymaking is no longer undertaken where it is

most accountable to the people.” Voices for Int’l Bus.

& Educ., Inc. v. Nat’l Labor Relations Bd., 905 F.3d

770, 780 (5th Cir. 2018) (Ho, J., concurring).

These concerns apply with even greater force with

respect to Skidmore deference to informal agency

statutory interpretations. For instance, agencies have

developed a pattern of filing amicus briefs as a

mechanism of demanding controlling deference for

what are, in reality, stealth regulations escaping the

rigor of notice-and-comment rulemaking procedures.

Cf. E.I. Dupont de Nemours & Co. v. Smiley, 138 S. Ct.

2563, 2564 (2018) (Gorsuch, J., statement respecting

denial of certiorari) (“Should we be concerned that

some agencies (including the one before us) have

apparently become particularly aggressive in

‘attempt[ing] to mold statutory interpretation and

establish policy by filing ‘friend of the court’ briefs in

private litigation’”? (quoting Eisenberg, Regulation by

Amicus: The Department of Labor’s Policy Making in

the Courts, 65 Fla. L. Rev. 1223, 1223 (2013)).

Self-serving “informal” agency interpretations

should not be accorded deference more nonchalantly

than formal agency statutory interpretations. It

makes no sense that federal courts should abdicate

the core judicial function of independently saying

what the law is using traditional tools of statutory

interpretation—a task for which federal courts have

far greater expertise than federal bureaucrats—so

long as the agency interpretation is announced

informally. That cannot be, and is not, the law. Such

a state of affairs would create perverse incentives for

agencies to circumvent the notice-and-comment

14

rulemaking process; the problem of agency stealth

rulemaking through “guidance” is bad enough as it is.

If anything, courts should exercise more independent

judgment and more skeptically analyze an agency’s

power claims when the putative source is a letter,

website posting, or amicus brief, as opposed to a

formal interpretation set forth in a regulation—not

the opposite, as happened here.

II.

THIS COURT SHOULD CLOSE THE THROTTLE

ON “DRIVE-BY” SKIDMORE DEFERENCE.

“The proper rules for interpreting statutes and

determining agency jurisdiction and substantive

agency powers should accord with constitutional

separation-of-powers principles and the function and

province of the Judiciary.” Pereira, 138 S. Ct. at 2121

(Kennedy, J., concurring). As this Court has made

clear, at the least, before accepting an agency’s formal

statutory or regulatory interpretation courts must

fully exhaust all “traditional tools” of statutory

interpretation, including canons of construction.

Chevron, 467 U.S. at 843 n.9 (statutes); Kisor, 139 S.

Ct. at 2415 (agency regulations). “[O]nly when that

legal toolkit is empty and the interpretive question

still has no single right answer can a judge conclude

that it is more one of policy than of law.”5 Kisor, 139

5 The fiction that Congress uses silent or ambiguous statutes to

delegate policymaking authority to federal agencies cannot be

squared with the separation of powers. As Justice Thomas

explained: “Chevron cannot be salvaged by saying instead that

agencies are engaged in the ‘formulation of policy.’ If that is true,

15

S. Ct. at 2415. “The fox-in-the-henhouse syndrome is

to be avoided . . . by taking seriously, and applying

rigorously . . . statutory limits on agencies’ authority.”

City of Arlington v. FCC, 569 U.S. 290, 307 (2013).

The judicial role and duty to independently

exhaust traditional tools of statutory interpretation

should not change based on how the agency chooses to

announce its views of the law; at the least, it should

not be diminished when the agency “informally” sets

forth its legal position. However, with respect to

informal agency interpretations “the Court has not

said that Skidmore necessarily includes a ‘step one’

inquiry along the lines of Chevron step one.” Hickman

& Krueger, In Search of the Modern Skidmore

Standard, 107 Colum. L. Rev. at 1280. As a result,

similar to the problem of “drive-by jurisdictional

rulings” that this Court addressed in Arbaugh v. Y &

H Corp., 546 U.S. 500, 511 (2006), Skidmore deference

has been applied by federal courts with little or no

analysis of statutory text to grant agencies the power

to informally create extratextual interpretations in

documents. Addressing this problem is important

because “Skidmore deference only makes a difference

when the court would not otherwise reach the same

interpretation as the agency.” E.I. Dupont de

Nemours, 138 S. Ct. at 2564 (Gorsuch, J., statement

respecting denial of certiorari).

then agencies are unconstitutionally exercising legislative

Powers vested in Congress.” Baldwin, 140 S. Ct. at 691 (Thomas,

J., dissenting from denial of certiorari) (cleaned up).

16

So too here. This case is a perfect example of the

broader problem. It was DOT’s burden to

affirmatively show that it had statutory authority to

allocate tax-exempt PABs to AAF. It is black-letter

administrative law that an agency “literally has no

power to act . . . unless and until Congress confers

power upon it.” La. Pub. Serv. Com v. FCC, 476 U.S.

355, 374 (1986); Lyng v. Payne, 476 U.S. 926, 937

(1986) (“[A]n agency’s power is no greater than that

delegated to it by Congress.”). Thus, before courts can

uphold agency actions, the agency must meet its

burden of showing Congress has authorized their

claimed powers. Importantly, “Congress need not

expressly negate an agency’s claimed administrative

powers; [w]ere courts to presume a delegation of

power absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony, a

result plainly out of keeping with Chevron and quite

likely with the Constitution as well.” Ry. Labor Execs.’

Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C.

Cir. 1994) (en banc).

DOT did not come close to meeting its burden of

showing statutory authority to act, as Petitioners ably

explain. See Pet. 4–7, 15–21. Nonetheless,

conspicuously absent from the decision below is any

meaningful analysis of the underlying statutory

scheme purportedly authorizing DOT’s actions.

Instead, the court below simply “applied” DOT’s

interpretation of the statute to the record and, on this

basis, found in the agency’s favor. See Indian River

Cnty. v. Dep’t of Transp., 945 F.3d 515, 531 (D.C. Cir.

2019). According to the D.C. Circuit: “When an

agency’s interpretation of a statute has been binding

on agency staff for a number of years, and it is

17

reasonable and consistent with the statutory

framework, deference to the agency’s position is due

under Skidmore.” Id. The Circuit mistakenly justified

such deference primarily on the ground that an

“agency’s views that are within its area of expertise

are entitled to a level of deference commensurate with

their power to persuade.” Id. at 532. Citing a 2005

letter DOT wrote to the IRS, the Circuit reasoned

“DOT’s position has not only been consistent; it is also

eminently reasonable.” Id. In the Circuit’s view,

“DOT’s long-standing position is based on persuasive

considerations that are consistent with the statute. It

is therefore due deference.” Id.

At no point, however, did the Circuit pause to

meaningfully evaluate whether the actual text of the

statutory scheme, let alone its structure and history,

supported DOT’s purported interpretation. Nowhere

in the court’s analysis is any meaningful application

of any of the traditional tools of statutory

interpretation, including canons of construction. This

approach shovels more coal on the fire that is an

already suspect doctrine. In Chevron terms, the

Circuit skipped the step-one station, apparently

assumed statutory ambiguity, and proceeded to step

two “reasonableness” review. That was error. See

Pet. 21–24; see also Nasrallah v. Barr, No. 18–1432,

Slip. Op. at 9, 590 U. S. ____ (2020) (“[I]t is not the

proper role of the courts to rewrite the laws passed by

Congress and signed by the President.”).

As this Court explained with regard to agency

interpretations of their regulations, which have the

force of law:

18

[A] court cannot wave the ambiguity

flag just because it found the regulation

impenetrable on first read. . . . [H]ard

interpretive conundrums, even relating

to complex rules, can often be solved. To

make that effort, a court must carefully

consider the text, structure, history, and

purpose of a regulation, in all the ways it

would if it had no agency to fall back on.

Doing so will resolve many seeming

ambiguities out of the box, without

resort to Auer deference.

Kisor, 139 S. Ct. at 2415. Logically, that proposition

should hold true a fortiori with respect to informal

agency interpretations of statutes set forth in

materials that lack the force of law, like the letter at

issue in this case.

This case provides an ideal opportunity to clarify

that, at a minimum, as Judge Kethledge put it: “an

Article III court should not defer to an executive

agency’s pronouncement of ‘what the law is’ unless the

court has exhaustively demonstrated—and not just

recited—that every judicial tool has failed.” Valent,

918 F.3d at 525 (Kethledge, J., dissenting). Here, the

Circuit took the opposite track. See Indian River

Cnty., 945 F.3d at 530–33; Pet. 21–25.

This Court should also clarify that Skidmore,

properly understood, “reaffirmed the traditional rule

that an agency’s interpretation of the law is ‘not

controlling upon the courts[.]’” Kisor, 139 S. Ct. at

2427 (Gorsuch, J., concurring in the judgment)

(quoting Skidmore). Instead, Skidmore “liberat[es]

courts to decide cases based on their independent

19

judgment and follow the agency’s view only to the

extent it is persuasive.” Id. at 2447 (cleaned up).

III.

THIS COURT SHOULD PROVIDE MUCH-NEEDED

GUIDANCE THAT SKIDMORE DOES NOT

DISPLACE BASIC PRINCIPLES OF STATUTORY

INTERPRETATION NECESSARY TO PROTECT

THE SEPARATION OF POWERS.

As this Court has observed, Skidmore’s

multifaceted “approach has produced a spectrum of

judicial responses, from great respect at one end to

near indifference at the other[.]” United States v.

Mead Corp., 533 U.S. 218, 228 (2001).

Unsurprisingly, “[t]he multi-factor Skidmore test has

often been criticized as ambiguous and unpredictable

in the results of its application.” Richard J. Pierce, Jr.,

Justice Scalia’s Unparalleled Contributions to

Administrative Law, 101 Minn. L. Rev. Headnotes 66,

72 (2016). As Justice Scalia put it, Skidmore is the

type of “test most beloved by a court unwilling to be

held to rules (and most feared by litigants who want

to know what to expect): th’ ol’ ‘totality of the

circumstances’ test.” Mead Corp., 533 U.S. at 241

(Scalia, J., dissenting).

Unsurprisingly, as administrative law scholars

have observed, “[i]t is apparent that the courts of

appeals lack a coherent conception of how Skidmore’s

sliding scale should function.” Hickman & Krueger, In

Search of the Modern Skidmore Standard, 107 Colum.

L. Rev. at 1291. As they explain, “disarray . . .

characterizes the courts’ application of the Skidmore

standard[.]” Id.; see also Pet. 28–30. For example, as

Justice Gorsuch has noted, “[t]here is a well-defined

circuit split on the question” of whether agencies can

20

advance interpretations of statutes for the first time

in litigation and then demand deference under

Skidmore. E.I. Dupont de Nemours, 138 S. Ct. at 2564

(Gorsuch, J., respecting denial of certiorari).

To date, this Court’s decisions have added to the

confusion. Compare Mead Corp., 533 U.S. 218, with

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

See generally Pet. 25–28. Indeed, as prominent

administrative law scholars have explained:

[W]hile

Christensen

and

Mead

resurrected Skidmore’s now boilerplate

recitation of factors, the Court has been

substantially less clear in explaining

how lower courts should apply the

Skidmore standard. Indeed, the Court’s

discussions of Skidmore in Christensen

and Mead reflect surprisingly different

conceptions of Skidmore’s standard for

evaluating

administrative

interpretations. All agree that Skidmore

is less deferential than Chevron, but how

much less and in what way remain open

questions. Furthermore, just as the

boundaries of Chevron’s domain were

substantially less certain pre-Mead, the

scope of Skidmore’s applicability in the

post-Mead era is still unclear.

Hickman & Krueger, In Search of the Modern

Skidmore Standard, 107 Colum. L. Rev. at 1291.

This Court’s decisions also provide conflicting

signals about the Skidmore order of operations. For

instance, on the one hand, this Court has applied

21

Skidmore to grant Chevron-level deference to an

informal agency interpretation without first

independently examining the statutory text in

isolation and exhausting traditional tools of statutory

interpretation.6 See Alaska Dep’t of Envtl.

Conservation v. EPA, 540 U.S. 461, 487–88 (2004)

(considering agency interpretation of statute along

with statutory text and history and finding agency

acted reasonably); id. at 517 (Kennedy, J., dissenting)

(“The statute is not in any way ambiguous. As a result,

our inquiry should proceed no further. Actions,

however, speak louder than words, and the majority

ends up giving EPA the very Chevron deference—and

more—it says should be denied.”); see also Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 393–407

(2008) (deferring to agency views without considering

meaning of undefined statutory term). On the other

hand, elsewhere this Court has suggested that the

multi-factor Skidmore analysis is “unnecessary” when

“the statute itself speaks clearly to the point at issue”

and only comes into play when a statute is ambiguous.

Riegel v. Medtronic, Inc., 552 U.S. 312, 326 (2008).

Against this backdrop, federal appellate courts

have grappled with the question of whether a Chevron

step one-type threshold finding of statutory ambiguity

is necessary before application of the Skidmore

framework. See, e.g., Catskill Mts. Chptr. of Trout

6 Cf. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 161

(2012) (“In light of our conclusion that the DOL’s interpretation

is neither entitled to Auer deference nor persuasive in its own

right, we must employ traditional tools of interpretation to

determine whether petitioners are exempt outside salesmen.”).

22

Unlimited, Inc. v. EPA, 846 F.3d 492, 509–10 (2d Cir.

2017); id. at 542 (Chin, J., dissenting). Some courts

have also determined that it is proper to engage in

Skidmore’s multifactor analysis to determine whether

to defer to the agency’s views of the law before

independently exhausting traditional tools of

statutory interpretation to say what the law is.7 That

order of operations goes the wrong way down the

tracks. This fundamental misapplication of Skidmore,

where an Article III court only independently

examines the statutory text using traditional tools of

statutory interpretation after deciding whether the

agency’s legal arguments are “entitled” to deference

(i.e., the agency wins) irreconcilably conflicts with this

Court’s precedent directing courts to, as a threshold

matter, rigorously and independently seek to resolve

any putative statutory ambiguities itself. See Kisor,

139 S. Ct. at 2415; Chevron, 467 U.S. at 843 n.9. This

practice also irreconcilably conflicts with the

Constitution. See U.S. Const. Art. III, § 1.

This Court should clarify that Skidmore neither

permits nor requires courts to abdicate their judicial

duty to independently say what the law is. Cf.

Baldwin, 140 S. Ct. at 691 (Thomas, J., dissenting

from denial of certiorari) (“Chevron compels judges to

7 See, e.g., Belt v. P.F. Chang’s China Bistro, Inc., 401 F. Supp.

3d 512, 529–30 (E.D. Pa. 2019) (“[I]f a court determines that the

agency interpretation merits neither Auer nor Skidmore

deference, a court must employ ‘traditional tools of

interpretation’ to determine the meaning of the regulation

without deference to the agency interpretation.”); Sicklesmith v.

Hershey Entm’t & Resorts Co., No. 19-1675, 2020 U.S. Dist.

LEXIS 32042, at *12–13 (M.D. Pa. Feb. 25, 2020) (same).

23

abdicate the judicial power without constitutional

sanction. . . . This apparent abdication by the

Judiciary and usurpation by the Executive is not a

harmless transfer of power.”). Skidmore does not

“permit[] a court to defer to an incorrect agency

interpretation.” PhotoCure Asa v. Kappos, 603 F.3d

1372, 1376 (Fed. Cir. 2010). And Skidmore does not

displace traditional tools of statutory interpretation or

otherwise fundamentally alter the judicial role. As

with Chevron and Auer, a threshold finding of

ambiguity after rigorously exhausting all traditional

interpretive tools is a condition precedent to

application of Skidmore. And where traditional tools

supply an answer, the multi-factor analysis should get

off the road. Cf. Epic Sys. Corp., 138 S. Ct. at 1630.

CONCLUSION

For these reasons, and those described by the

Petitioner, this Court should grant the Petition for a

writ of certiorari to the United States Court of Appeals

for the D.C. Circuit.

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

MICHAEL PEPSON

R. JAMES VALVO, III

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

June 17, 2020