Amicus Curiae Brief — Damien Guedes, et al., Petitioners v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al.

No. 19-296

IN THE

Supreme Court of the United States

_________

DAMIEN GUEDES, ET AL.,

v.

Petitioners,

BUREAU OF ALCOHOL, TOBACCO, FIREARMS

AND EXPLOSIVES, ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

_________

BRIEF OF THE NATIONAL RIGHT TO WORK

LEGAL DEFENSE FOUNDATION, INC. AS AMICUS CURIAE SUPPORTING PETITIONERS

_________

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

FRANK D. GARRISON

ALYSSA K. HAZELWOOD

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road, Ste. 600

Springfield, VA 22160

(703) 321-8510

rjl@nrtw.org

Counsel for Amicus

QUESTIONS PRESENTED

1. Whether Chevron deference, rather than the

rule of lenity, takes precedence in the interpretation

of statutory language defining an element of various

crimes where such language also has administrative

applications?

2. Whether, if Chevron deference applies and

takes priority over the rule of lenity, such deference

can be waived in the course of litigation and on appeal?

3. Whether, if Chevron deference applies and cannot be waived, Chevron should be overruled?

i

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 unconstitutional ...........3

B. Chevron deference has serious consequences

for the regulated public that reach far

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 (2009) ............................................10

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

Inc.,

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

City of Arlington v. FCC,

569 U.S. 290 (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.R.s.,

135 S. Ct. 1225 (2015) ...........................................2

FCC v. Fox Television Stations, Inc.,

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

Free Enter. Fund v. Pub. Co. Accounting Oversight

Bd.,

561 U.S. 477 (2010) ............................................10

Gundy v. United States,

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

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .............................9

Harris v. Quinn,

573 U.S. 616 (2014) ...............................................1

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

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Janus v. AFSCME.,

138 S. Ct. 2448 (2018) ...........................................1

Knox v. SEIU, Local1000,

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

Marbury v. Madison,

5 U.S. 137 (1803) .................................................. 8

Michigan v. EPA,

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

NLRB v. Noel Canning,

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

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ....................................9, 13

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) .................................1

United States v. Mead Corp.,

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

Whitman v. Am. Trucking Ass’ns,

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

Youngstown Sheet & Tube Co. v. Sawyer,

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

iv

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. CONSTITUTION

Article I § 1 ....................................................... passim

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

Article III § 1 .................................................. 3, 7, 8, 9

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

OTHER AUTHORITIES

Douglas H. Ginsburg & Steven Menashi, Our

Illiberal Administrative Law,

10 N.Y.U. J.L. & LIBERTY 475 (2016)................7, 8

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)...................... 9

PHILIP HAMBURGER, LAW AND JUDICIAL DUTY

(2008) .................................................................5, 8

Rebecca L. Brown, Separated Powers and Ordered

Liberty,

139 U. PA. L. REV. 1513 (1991). ............................4

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

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

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

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

v

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 concerning unionization since 1968. To advance this mission, Foundation

staff attorneys have represented individual employees

in many cases before this Court. E.g., Janus v. AFSCME, 138 S. Ct. 2448 (2018); Harris v. Quinn, 573

U.S. 616 (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

third question presented—whether, if Chevron deference applies and cannot be waived, the Court should

overrule Chevron—because Foundation staff attorneys currently represent 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) (“The 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 760, 766 (9th Cir.

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

2002) (en banc) (“Courts are required to defer to the

NLRB on statutory interpretation under Chevron.”).

Whether this Court should abandon the Chevron doctrine is therefore important to the Foundation’s mission.

SUMMARY OF ARGUMENT

The Court should grant the petition and jettison

Chevron deference. The Framers constructed the Constitution to safeguard 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.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’s

separation of powers for at least two reasons. First,

Chevron deference circumvents Article I’s lawmaking

process. It allows executive agencies to exercise legislative power by rewriting laws without going through

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.R.s., 135 S. Ct. 1225, 1240

(2015) (Thomas, J., concurring in the judgment) (“[T]he 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, e.g., Pet. Br. 30-32.

2

bicameralism and presentment, which, in turn, creates serious fair notice problems. Second, Chevron allows 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 hands the executive the judicial power

to interpret the law. That creates serious due process

problems by depriving litigants of a fair hearing in

court.

B. Whether this Court should overrule Chevron is

a question that has important ramifications for federal law that reach beyond this case. Chevron is a

ubiquitous problem in administrative law. Federal

agencies like the NLRB routinely use Chevron deference to change the meaning of federal statutes—causing serious damage 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 unconstitutional.

The Constitution is clear: each separate, co-equal

branch of the federal government has specific and

enumerated powers. Article I 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. art. II, § 1; and Article III vests “[t]he judicial Power of the United States . . . in one supreme

Court” and inferior courts established by Congress, id.

art. III, § 1.

3

“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 Framers knew the

abandonment of the separation of powers 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

Chevron deference is a two-step process. At the

first step, the reviewing court determines whether a

5 See NLRB 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

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

1961).

4

statute is ambiguous. If the court determines the statute is ambiguous, then the court defers to the administrating agency’s interpretation of the statute as long

as it is a reasonable or permissible interpretation.

Chevron, 467 U.S. at 844.

This regime undermines the separation of powers

in at least two ways. First, it allows the legislature

and executive to short-circuit Article I’s deliberately

onerous lawmaking process. It allows the legislature

to delegate large swaths of its power to executive

agencies, which then fill in these statutory “gaps”—

i.e., define the law’s meaning—without going through

bicameralism and presentment. Article I vests all legislative power in Congress—not some, but all. See

U.S. Const. art. I, § 1.7 Article I’s plain meaning

should prevent the legislative branch from sub-delegating its legislative power to another branch.8 But,

unfortunately, this Court has not always—indeed,

rarely—policed that line.9

Chevron is the inevitable upshot of abandoning Article I’s text. Chevron deference is 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 binding legislative

rules and regulations. See Chevron, 467 U.S. at

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 Ass’n of Am. R.R.s., 135 S. Ct. at 1250 (Thomas, J., concurring

in the judgment).

5

833–44.10 Chevron deference thus creates a situation

when, on a whim, the executive can change the meaning, scope, and practical implications of the legislature’s unchanged statutory text. This case presents an

obvious example. Before ATF’s new regulation, bump

stocks were legal under the applicable statutory provisions Congress passed, and individuals were therefore able to purchase and lawfully possess these devices. See Pet. Br. 4; Pet. App. A7–8. ATF’s 2019 regulation changed the interpretation of the statute to

render these devices illegal and possession of them a

criminal act. See Pet. Br. 4; Pet. App. A7–8.

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

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 It is a feature and not a bug of our constitutional structure

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

The Framers also designed these rigorous political

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

and to protect minorities from the government wielding arbitrary power in favor of majorities with no accountability. 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 congressional delegation makes lawmaking

easy through delegation, moreover, the citizenry is

susceptible to having their due process rights 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,

because an executive agency can decide—after a person has acted—what an ambiguous law means and

bind that person to the agency’s post-hoc interpretation.

Second, Chevron violates Article III by requiring

the judiciary to defer to an executive branch agency’s

interpretation of a statute. In doing so, Chevron either

subjugates the judiciary to the executive or impermissibly delegates core judicial power to the executive. In

7

either case, the practical effect is the same—through

Chevron the judiciary gives the executive the judicial

power to interpret the law. This creates serious due

process problems by depriving a litigant of a fair hearing in court.

“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v.

Madison, 5 U.S. 137, 177 (1803). 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—and only

judges—with judicial power under Article III. This

power, in turn, came with a court’s judicial duty to “exercise its independent judgment in interpreting and

expounding upon the laws.” Perez, 135 S. Ct. at 1217;

see also PHILIP HAMBURGER, LAW AND JUDICIAL DUTY

316–26 (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 enumerated

powers. See id. at 1220.

The executive, as a co-equal, coordinate branch of

government has an important and legitimate role in

interpreting the laws to execute them. Yet the co8

equal judicial branch, in carrying out its constitutionally mandated duty, has a no less important role to

“say what the law is” in a judicial proceeding. Chevron

favors the former at the expense of the latter. If Chevron is rationalized structurally, this rationalization is

misguided. Chevron violates the separation of powers

by subjugating the judiciary’s core power to the executive.

Moreover, if Chevron deference is a conscious

choice of the judiciary to delegate its authority to “say

what the law is” to the executive, it is an impermissible delegation. See Gutierrez-Brizuela v. Lynch, 834

F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring) (“Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.”). Through

its implementation of Chevron, the federal judiciary

has essentially abandoned its core function to exercise

independent and impartial judgment in litigation and

its structural duty to check the legislative and executive branches.

What is more, by reflexively deferring to agencies

under Chevron, federal courts give one side 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 creates serious Fifth Amendment Due Process problems.

“What 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

9

of the most powerful of parties”—the federal government. Id. When they apply Chevron Judges thus fail

in their duty to be the neutral arbiters of the law. They

are no longer the impartial decision-maker due process requires—an essential element of individual liberty.12

The Court should thus take this opportunity to revisit and overrule Chevron deference to ensure, in

cases such as this one, the proper separation of powers

balance and to ensure each litigant has the due process of law that the Constitution requires.

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

reach beyond this case.

Petitioners’ case is not an anomaly. Although it is

a prime example of the significant, illiberal ramifications of Chevron deference, this case is merely another in a litany of cases in which Chevron deference

has operated against the Constitution and done violence to individual liberty.13

12 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

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 judicial duty to provide

due process.

13 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, 569 U.S. 290, 313 (2013)

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

Accounting Oversight Bd., 561 U.S. 477, 499 (2010)).

10

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

federal law—sometimes retroactively—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.

But, what administrative agencies engage in is not

always based on “expertise.” Judges and scholars have

criticized the NLRB in particular 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 eu11

phemism 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 N.Y.U. 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.,

dissenting). Even so, a fundamental underpinning of

the rule of law and separation of powers is the ossification (i.e., stabilization) of the law, unless Congress

acts through its Article I power to change it. Chevron,

however, allows an executive agency to change the law

with the political winds (or for no apparent reason at

all). Consequently, regulated individuals do not have

fair notice before the government charges them with

a legal violation.

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 individual liberty.

They have done so not by applying the statutes Congress passed, but by using vague statutory language

to instill their political preferences.

12

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.

CONCLUSION

For all these reasons, and those Petitioners stated,

the Court should grant the petition.

Respectfully submitted,

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

FRANK D. GARRISON

ALYSSA K. HAZELWOOD

CC/o NATIONAL RIGHT TO

WORK

LEGAL

DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

rjl@nrtw.org

October 4, 2019

13