Amicus Curiae Brief — Michelle Valent, Petitioner v. Andrew M. Saul, Commissioner of Social Security

No. 19-221

IN THE

Supreme Court of the United States

_________

MICHELLE VALENT,

v.

Petitioner,

ANDREW M. SAUL,

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

_________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

_________

BRIEF OF THE NATIONAL RIGHT TO WORK

LEGAL DEFENSE FOUNDATION, INC. AS AMICUS CURIAE SUPPORTING PETITIONER

_________

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

FRANK D. GARRISON

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

rjl@nrtw.org

Counsel for Amicus

QUESTIONS PRESENTED

1. Whether the Court should overrule Chevron

U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984).

2. Whether Chevron requires courts to defer to an

agency’s resolution of a conflict between statutory provisions.

3. Whether the Court should summarily reverse

the decision below, because the Sixth Circuit violated SEC v. Chenery Corp., 318 U.S. 80

(1943), by affirming an administrative order

based on an allegation that the agency decisionmaker rejected as unsupported by the evidence and that the Commissioner concedes was

not a basis for the order.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................................... i

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

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

SUMMARY OF ARGUMENT ....................................2

ARGUMENT ..............................................................3

Whether this Court should overrule Chevron is an

important constitutional question that affects the

regulated public’s rights and liberties .......................3

A. Chevron deference is illiberal and unconstitutional ................................................................3

B. Chevron deference has serious consequences

for the regulated public that reach beyond

this case..........................................................10

CONCLUSION .........................................................13

ii

TABLE OF AUTHORITIES

CASES

Bowsher v. Synar,

478 U.S. 714 (1986) ...............................................4

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868..........................................................9

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

Inc.,

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

City of Arlington v. FCC,

133 S. Ct. 1863 (2013) ........................................10

Commc’ns Workers of Am. v. Beck,

487 U.S. 735 (1988) ...............................................1

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

135 S. Ct. 1225 (2015) ...................................2, 5, 6

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ..............................................7

Free Enter. Fund v. Public Co. Acc’ting Oversight

Bd.,

130 S. Ct. 3138 (2010) ........................................10

FCC v. Fox TV Stations, Inc.,

567 U.S. 239 (2012) .............................................5

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................5, 6

Harris v. Quinn,

134 U.S. 2618 (2014) .............................................1

iii

TABLE OF AUTHORITIES—Continued

Page(s)

In re Murchison,

349 U.S. 133 (1955) .............................................10

Int’l Ass’n of Machinists & Aerospace Workers v.

NLRB,

133 F.3d 1012 (7th Cir. 1998) ..............................1

Janus v. AFSCME.,

573 U.S. 616 (2018) ...............................................1

Knox v. SEIU, Local1000,

567 U.S. 298 (2012) ...............................................1

Michigan v. EPA,

135 S. Ct. 2699 (2015) ..........................................6

N.L.R.B. v. Noel Canning,

573 U.S. 513 (2014) ...............................................4

NLRB v. Wyman-Gordon Co.,

394 U.S. 759 (1969) .............................................11

Oakwood Care Ctr.,

343 NLRB 659 (2004)..........................................10

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ....................................8, 12

Perez v. Mortg. Bankers Ass’n,

135 S. Ct. 1199 (2015) .......................................4, 8

Pirlott v. NLRB,

522 F.3d 423 (D.C. Cir. 2008) ...............................1

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ............................................10

United Food & Commerical Workers Union, Local

1036 v. NLRB,

307 F.3d 760 (9th Cir. 2002) .................................2

iv

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Mead Corp.,

533 U.S. 218 (2001) ............................................12

Whitman v. Am. Truckig Ass’ns,

531 U.S. 457 (2001) ..............................................5

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ...............................................7

U.S. CONSTITUTION

Article I § 1 .............................................................3, 5

Article II §1 .................................................................3

Article III § 1 ..............................................................4

Fifth Amendment .......................................................9

OTHER AUTHORITIES

Douglas H. Ginsburg & Steven Menashi, Our

Liberal Administrative Law,

10 N.Y.U. J.L. & LIBERTY475 (2016) ...........8, 11

Gary Lawson, Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) ......................................5

John F. Manning, Lawmaking Made Easy,

10 Green Bag 2d 191 (2007) .................................6

Philip Hamburger, Chevron Bias,

84 Geo. WASH. L. REV. 1187 (2016)...................8, 9

Philip Hamburger, Law and Judicial Duty,

(2008) ..........................................................................8

Rebecca L. Brown, Separated Powers and Ordered

Liberty,

139 U. Pa. L. Rev. 1513 (1991). ............................4

v

TABLE OF AUTHORITIES—Continued

Page(s)

The Federalist, No. 47 (C. Rossiter ed. 1961) (J.

Madison) ................................................................5

The Federalist, No. 51 (C. Rossiter ed. 1961) (J.

Madison) ......................................................... …. 2

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INTEREST OF AMICUS CURIAE1

The National Right to Work Legal Defense Foundation, Inc. has been the nation’s leading litigation advocate for employee free choice since 1968. To advance

this mission, Foundation staff attorneys have represented individual employees in many cases before this

Court. E.g., Janus v. AFSCME, 573 U.S. 616 (2018);

Harris v. Quinn, 134 S. Ct. 2618 (2014); Knox v. SEIU,

Local 1000, 567 U.S. 298 (2012); Commc’ns Workers of

Am. v. Beck, 487 U.S. 735 (1988).

The Foundation has a particular interest in the

Court granting certiorari on the first question presented—whether the Court should overrule Chevron—because it currently represents hundreds of employees across the nation whose free choice to refrain

from unionization and monopoly bargaining depends

on the National Labor Relations Board’s proper implementation of the National Labor Relations Act. Courts

have applied Chevron deference in several cases involving the rights of individual employees. See, e.g.,

Int'l Ass’n of Machinists & Aerospace Workers v.

NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998); Pirlott v.

NLRB, 522 F.3d 423, 434 (D.C. Cir. 2008) (“[t]he general chargeability issue is a matter for the Board to

decide in the first instance”); United Food & Commercial Workers Union, Local 1036 v. NLRB, 307 F.3d

1 Pursuant to Supreme Court Rule 37.3(a), both parties received

timely notice of amicus curiae’s intent to file this brief and consented to its filing. Pursuant to Supreme Court Rule 37.6, no

counsel for any party authored this brief in whole or in part, and

no person or entity other than the amicus curiae made a monetary contribution to its preparation or submission.

1

760, 766 (9th Cir. 2002) (en banc) (“Courts are required to defer to the NLRB on statutory interpretation under Chevron”). Therefore, whether this Court

should abandon the Chevron doctrine is important to

the Foundation’s mission..

SUMMARY OF ARGUMENT

The Court should grant the petition and return to

first principles. The Framers constructed the Constitution to provide safeguards for the people’s liberty by

separating governmental powers.2 At the federal

level, the Constitution specifically delegates these

powers—legislative, executive, and judicial—to the

three separate federal branches respectively.3 Chevron deference is an anathema to that design, causes

serious damage to individual liberty, and should be

overruled.4

A. Chevron deference violates the Constitution for

at least two reasons. First, Chevron deference violates

the Constitution’s separation of powers by circum-

2 See The Federalist, No. 51 (C. Rossiter ed. 1961) (J. Madison)

(“In the compound republic of America, the power surrendered

by the people is first divided between two distinct governments,

and then the portion allotted to each subdivided among distinct

and separate departments. Hence a double security arises to the

rights of the people.”).

3 Dep’t of Transp. v. Ass’n of Am. R.Rs., 135 S. Ct. 1225, 1240

(2015) (Thomas, J., concurring in the judgment) (“the Constitution identifies three types of governmental power and, in the

Vesting Clauses, commits them to three branches of Government.”).

4 Past and current members of this Court, circuit court judges,

and legal scholars have recognized Chevron’s incompatibility

with the Constitution. See Pet. Brief 16-19.

2

venting Article I’s lawmaking process. It allows executive agencies to exercise legislative power by rewriting laws without going through bicameralism and presentment, which, in turn, creates serious fair notice

problems. Second, Chevron violates the separation of

powers by allowing executive agencies to exercise core

judicial power that the Constitution delegates to the

judiciary alone. When a court defers to an executive

agency’s statutory construction, it is handing the executive the judicial power to interpret the law. That

creates serious due process problems by depriving a

litigant of a fair hearing in court.

B. Whether this Court should overrule Chevron is

a question that also has important ramifications for

federal law that reach beyond this case. Chevron is a

ubiquitous problem in administrative law that

reaches into almost every statute in the federal code.

Federal agencies like the NLRB routinely use Chevron deference to change the meaning of federal statutes—causing serious damages to the rights and liberties of the regulated public.

ARGUMENT

Whether this Court should overrule Chevron is

an important constitutional question that affects the regulated public’s rights and liberties.

A. Chevron deference is illiberal and unconstitutional.

We start with first principles. Article I of the Constitution vests “[a]ll legislative Powers herein granted

. . . in a Congress of the United States.” U.S. Const.

art. I, § 1. Article II vests “[t]he executive Power . . . in

a President of the United States.” Id. at art. II, § 1.

And Article III vests “[t]he judicial Power of the

3

United States . . . in one supreme Court” and inferior

courts established by Congress. Id. at art. III, § 1. The

Constitution’s words are clear: it delegates to each

separate branch specific powers.

“The declared purpose of separating and dividing

the powers of government, of course, was to diffus[e]

power the better to secure liberty.” Bowsher v. Synar,

478 U.S. 714, 721 (1986) (alteration in original) (quotation marks and citation omitted). The Constitution’s

protection of individual liberty through the separation

of powers was the product of “centuries of political

thought and experiences.” Perez v. Mortg. Bankers

Ass’n., 135 S. Ct. 1199, 1215 (2015) (Thomas, J., concurring). And these experiences taught the Framers

that delegating to each separate federal branch certain limited, enumerated powers would protect the republic and its citizens better than any enumeration of

rights ever could.5 Indeed, the abandonment of the

separation of powers, the Framers knew, would lead

directly to the “loss of due process and individual

rights.” Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1538 (1991).6

5 See N.L.R.B. v. Noel Canning, 573 U.S. 513, 570–71 (2014)

(“[T]he Constitution's core, government-structuring provisions

are no less critical to preserving liberty than are the later

adopted provisions of the Bill of Rights. Indeed, so convinced

were the Framers that liberty of the person inheres in structure

that at first they did not consider a Bill of Rights necessary.”)

(Scalia, J., concurring) (alteration, internal quotation marks, and

citation omitted).

6 James Madison thought that “[n]o political truth is . . . stamped

with the authority of more enlightened patrons of liberty” than

dividing the powers of government because “[t]he accumulation

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

4

Chevron undermines the separation of powers in

at least two ways. First, it undermines the Constitution by short-circuiting Article I’s deliberately onerous

lawmaking process. It allows executive agencies to fill

in the “gaps” of a statute—i.e., change the law’s meaning—without going through bicameralism and presentment. This in turn creates serious fair notice

problems.

Second, Chevron allows executive agencies to swallow core judicial power. When a court defers to an executive agency’s statutory construction, it is handing

the executive the judicial power to interpret the law—

in its own case, no less. This in turn creates serious

due process problems by depriving a litigant of a fair

hearing in court.

1. Start with Article I. When the people ratified the

Constitution, they delegated “[a]ll” legislative power

to Congress—not some, but “all.” See U.S. Const. art.

I, § 1. (emphasis added).7 Ideally, Article I’s plain

meaning would prevent the legislative branch from

subdelegating its legislative power to another

branch.8 But this Court has not always—indeed,

rarely—policed that line.9

hands . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, 301 (James Madison) (Clinton Rossiter ed., 1961).

7 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (“Ar-

ticle I, § 1 . . . permits no delegation of those powers . . . .”).

8 See Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gor-

such, J., dissenting); see also Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 336-37 (2002).

9 Association of American R.Rs., 135 S. Ct. at 1250 (Thomas, J.,

concurring in the judgment).

5

Chevron is the inevitable upshot of abandoning Article I’s text. This Court created Chevron deference

based on a legal fiction. That fiction assumes Congress

implicitly delegates its power through ambiguous

statutory language (or no statutory language at all) so

that an administrative agency can make legislative

rules. See Chevron, 467 U.S. at 844.10 The effect of this

is that a law’s meaning is never fixed, but becomes a

malleable standard that the executive branch can

change on a dime.

This regime undercuts the Framers’ design to prevent excessive lawmaking—which the Framers

thought was one of “the diseases to which our governments are most liable.” Gundy, 139 S. Ct. at 2134

(footnote omitted). Article I requires a law to “win the

approval of two Houses of Congress—elected at different times, by different consistencies, and for different

terms in office—and either secure the President’s approval or obtain enough support to override his veto.”

Id. This gauntlet, the Framers thought, was a “bulwark[] of liberty.” Id.11

The Framers also designed these rigorous political

gauntlets to prevent factions—interest groups in modern parlance—from capturing the legislative process,

10 “Statutory ambiguity … becomes an implicit delegation of

rule-making authority, and that authority is used not to find the

best meaning of the text, but to formulate legally binding rules

to fill in gaps based on policy judgments made by the agency rather than Congress.” Michigan v. EPA, 135 S. Ct. 2699, 2713

(2015) (Thomas, J., concurring).

11 Indeed, it is a feature and not a bug of our constitutional struc-

ture that laws are hard to enact. See John F. Manning, Lawmaking Made Easy, 10 Green Bag 2d 191, 202 (2007); see also Ass’n.

of Am. R.Rs., 135 S. Ct. at 1237 (Alito, J., concurring).

6

and to protect minorities from the government wielding arbitrary power with no accountability in favor of

majorities. See id; see also Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 629 (1952) (Douglas, J.,

concurring) (“The doctrine of the separation of powers

was adopted by the Convention of 1787 not to promote

efficiency but to preclude the exercise of arbitrary

power.”) (citation and quotation marks omitted).

When lawmaking is made easy through congressional delegation, moreover, the regulated public is

susceptible to having life, liberty, or property taken

from them without fair notice. A fundamental tenet of

the Due Process Clause requires that laws “which regulate persons or entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (citations

omitted). A punishment will thus violate due process

when a “regulation under which it is obtained fails to

provide a person of ordinary intelligence fair notice of

what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Id. (citations and quotation marks omitted).

Chevron turns this fundamental principle on its head,

however, because an executive agency can decide—after a person has acted—what an ambiguous law

means and haul that person into court.12

12 As Petitioner points out, this case provides a textbook example

of how Chevron works to deprive an individual of property—“a

massive fine”—without fair notice. Petitioner could not have

known that her actions violated the statute because the better

reading of the statute at issue did not require her to report her

work activity. See Pet. Brief 25-29.

7

2. Chevron likewise violates Article III and creates

serious due process problems. Judicial review is essential to the broader “liberal tradition, which is the

dominant tradition in American constitutional law,

‘emphasiz[ing] limited government, checks and balances, and strong protection of individual rights.’”

Douglas H. Ginsburg & Steven Menashi, Our Illiberal

Administrative Law, 10 N.Y.U. J.L. & LIBERTY 475,

477 (2016) (internal punctuation and footnote omitted). The Framers thus entrusted judges with judicial

power under Article III. This power, in turn, came

with a judicial duty to “exercise its independent judgment in interpreting and expounding upon the laws.”

Perez, 135 S. Ct. at 1217; see also P. Hamburger, Law

and Judicial Duty 316-326 (2008).

This duty requires judges to interpret the laws before them and “to decide cases in accordance with the

law of the land, not in accordance with pressures

placed upon them through either internal or external

sources.” Perez, 135 S. Ct. at 1218. The judiciary, the

Framers thought, would thus provide a “check”

against the other branches—including administrative

agencies—when they try to expand their delegated

powers. See id. at 1220.

When it comes to administrative law, however, the

federal judiciary has essentially abandoned its duty to

check the legislative and executive branches. Federal

courts reflexively defer to agencies under Chevron and

give one party an advantage over the other during litigation. See Pereira v. Sessions, 138 S. Ct. 2105, 2121

(2018) (Kennedy, J., concurring); see also Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187,

1209-10 (2016). This abandonment of judicial duty has

real world effects—including undermining the political legitimacy of our system of laws. See Hamburger,

8

Chevron Bias at 1236 (“[I]ndependent judgment of unbiased judges is the basis of the government’s political

legitimacy . . . especially [in] those [cases] concerning

the power of government or the rights of the people, it

is essential that the people have confidence that the

judges are not biased toward government, but are exercising independent judgment.”) (footnote omitted).

But more to the point here, the deference judges

give an agency during litigation, favoring one party

over another, creates serious Fifth Amendment Due

Process problems. Indeed, “[w]hat is at stake here is

the due process of law in Article III courts.” Id. at

1231. The Constitution tasks judges to provide a fair

and neutral process and not engage in bias toward one

party. But under Chevron, courts have become participants “in systematic bias.” Id. This “[d]eference to administrative interpretation is a systematic precommitment in favor of the interpretation or legal position

of the most powerful of parties”—the federal government. Id.13 Judges thus fail in their duty to be the natural arbiters of the law when they apply Chevron.

They are no longer the impartial decision-maker due

process requires—an essential element of individual

liberty.14

13 Again, as Petitioner points out, this case serves as a primary

example of how Chevron works to deprive regulated parties of

individual liberty. She never had a chance in the court below,

because the panel majority reflexively adopted the government’s

interpretation of the statute. See Pet. Brief 28.

14 Despite this breakdown when it comes to administrative agen-

cies, this Court has repeatedly affirmed that a neutral decisionmaker is essential to a fair process: “It is axiomatic that ‘[a] fair

trial in a fair tribunal is a basic requirement of due process.’”

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). And, when a judge

9

B. Chevron deference has serious consequences for the regulated public that

reach beyond this case.

Petitioner’s case is not an anomaly. Her case is

only one example of the violence Chevron deference

has done, and will continue to do if not overruled, to

people’s individual liberty.15

For example, Chevron deference has allowed administrative agencies like the NLRB to make federal

law—sometimes retroactively—for years based on political decisions. One of the primary rationales for

Chevron deference is that agency “experts” are better

equipped to determine the evolving policy for the nation:

Judges are not experts in the field, and

are not part of either political branch of

the Government . . . In contrast, an

agency to which Congress has delegated

policy-making responsibilities may,

within the limits of that delegation,

properly rely upon the incumbent administration’s views of wise policy to inform

its judgments.

Chevron, 467 U.S. at 865.

fails to “apply the law to [a party] in the same way he applies it

to any other party[,]” Republican Party of Minn. v. White, 536

U.S. 765, 776 (2002), he has failed in his duty.

15 The modern administrative state has ballooned into a behe-

moth that “wields vast power and touches almost every aspect of

daily life.” City of Arlington v. FCC, 133 S. Ct. 1863, 1878 (2013)

(Roberts, C.J., dissenting) (citing Free Enter. Fund v. Public Co.

Acc’ting Oversight Bd., 130 S. Ct. 3138, 3156 (2010)).

10

But what administrative agencies engage in is not

always based on “expertise.” Indeed, judges and scholars have criticized the NLRB for engaging in excessive

legal and policy oscillation from administration to administration based on political considerations, not expert policymaking. As one federal judge has described

the problem:

Sometimes the claim to expertise is entirely fraudulent; the most well-documented case is that of the National Labor

Relations Board, the partisan majority of

which routinely displaces the previous

majority's psychological assertions about

what employer tactics do or do not coerce

workers when they are deciding whether

to vote for union representation. Most often, however, expertise is simply a euphemism for policy judgments. The permanent staff of an agency may have a

great deal of technical expertise, but the

agency's ultimate decisions are made by

the experts' political masters, who have

sufficient discretion that they can make

decisions based upon their own policy

preferences, fearing neither that the expert staff will not support them nor that

a court will undo their handiwork.

Ginsburg & Menashi, Our Illiberal Administrative

Law, 10 NYU J.L. & Liberty at 482–83 (footnote omitted).

To be sure, granting agencies like the NLRB deference to say what the law is prevents “ossification of

large portions of our statutory law.” United States v.

Mead Corp., 533 U.S. 218, 247–48 (2001) (Scalia, J.,

11

dissenting). Even so, as noted above, a fundamental

underpinning of the rule of law and separation of powers requires that only Congress, acting through Article I, change the law. Chevron, however, allows an executive agency to change the law with the political

winds—and therefore regulated individuals will not

have fair notice before the government takes their life,

liberty, or property.

Aided in large part by Chevron deference, agencies

across the federal government, like the NLRB, for decades have abruptly changed legal and policy positions

on dozens of major issues affecting the regulated public’s individual liberty. They have done so not using

the statute Congress passed, but by using vague statutory language to instill their political preferences.

In sum, the Court should take this case, overrule

Chevron, and revert to the first principle that Congress makes the law, the executive enforces the law,

and the judiciary interprets the law.

*

*

*

Before retiring from this Court, Justice Kennedy

noted that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron[.]” Pereira, 138 S. Ct. at 2121 (Kennedy, J., concurring). This is such a case.

12

CONCLUSION

For foregoing reasons, and those stated by the Petitioner, the Court should grant the petition.

Respectfully submitted,

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

FRANK D. GARRISON

CC/o NATIONAL RIGHT TO

WORK

LEGAL

DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

rjl@nrtw.org

September 19, 2019

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