Amicus Curiae Brief — American Hospital Association, et al., Petitioners v. Xavier Becerra, Secretary of Health and Human Services, et al.

No. 20-1114

IN THE

Supreme Court of the United States

_________________________________________________

AMERICAN HOSPITAL ASSOCIATION ET AL.,

Petitioners,

v.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF NEITHER PARTY

————

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

September 10, 2021

i

TABLE OF CONTENTS

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

Brief of Amicus Curiae in Support of Neither Party . 1

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

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

Argument ....................................................................... 6

I.

II.

Chevron Deference Violates the Separation of

Powers and Threatens Individual Liberty ......... 6

A.

The Separation of Powers and Our

Constitution’s Promise of an Independent

Judiciary Protect Individual Liberty.......... 6

B.

Chevron Deference Threatens Individual

Liberty By Transferring Legislative and

Judicial Powers to the Executive ................ 9

1.

Chevron Stacks the Deck Against the

American People ................................... 11

2.

Chevron Transfers Legislative Powers to

Unelected Executive Officials .............. 12

3.

Chevron Transfers Judicial Authority to

Unelected Executive Officials .............. 13

4.

Chevron and Its Constitutionally

Challenged Companion, Brand X, Are At

Odds with Due Process ......................... 15

Chevron Violates the APA ................................. 18

Conclusion ................................................................... 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Baldwin v. United States,

140 S. Ct. 690 (2020) ................................... passim

Bond v. United States,

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

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) .............................................17

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ....................... 17, 18

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

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

Chi. & S. Air Lines, Inc. v. Waterman S.S.

Corp.,

333 U.S. 103 (1948) .............................................16

City of Arlington v. FCC,

569 U.S. 290 (2013) .............................................14

Cnty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) .........................................10

De Niz Robles v. Lynch,

803 F.3d 1165 (10th Cir. 2015) ..........................16

DOT v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ...............................................12

iii

FCC v. Fox TV Stations, Inc.,

567 U.S. 239 (2012) .............................................17

FTC v. Ruberoid Co.,

343 U.S. 470 (1952) .............................................14

Gundy v. United States,

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

Gutierrez-Brizuela v. Lynch,

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

HollyFrontier Cheyenne Ref., LLC v.

Renewable Fuels Ass’n,

141 S. Ct. 2172 (2021) .........................................10

King v. Burwell,

576 U.S. 473 (2015) .............................................13

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................. 10, 11

Loving v. United States,

517 U.S. 748 (1996) ...........................................6, 7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................3, 7

Michigan v. EPA,

576 U.S. 743 (2015) .................................. 7, 12, 13

National Cable & Telecommunications

Association v. Brand X Internet Services,

545 U.S. 967 (2005) .............................................16

iv

Pereira v. Sessions,

138 S. Ct. 2105 (2018) .........................................11

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) .............................................8, 9

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) ..................... 6, 8, 13

Tiger Lily, LLC v. HUD,

No. 21-5256, 2021 U.S. App. LEXIS

21906 (6th Cir. 2021) ........................................6, 7

United States v. Dickson,

40 U.S. 141 (1841) .................................................9

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................18

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019) ....................... 10, 11

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ...............................................4

Constitution

U.S. Const., Art. I, §1 .......................................... 6, 13

U.S. Const. Art. II, § 3 ................................................7

v

Statutes

5 U.S.C. § 706 ............................................................18

Rules

Sup. Ct. Rule 37.3 .......................................................1

Other Authorities

Abbe R. Gluck, What 30 Years of Chevron

Teach Us About the Rest of Statutory

Interpretation, 83 Fordham L. Rev. 607,

625 (2014)...................................................... 16, 17

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 Yale L.J. 908 (2017) .....................................19

Brett M. Kavanaugh,

Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) ...........................18

Neil Gorsuch et al., A Republic, If You Can

Keep It (2019) ................... 4, 5, 7, 9, 10, 11, 12, 15

The Federalist No. 47 .............................................7, 8

The Federalist No. 78 .............................................8, 9

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of neither party.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. As

part of this mission, it appears as amicus curiae before

federal and state courts.

This case presents a familiar question: which

branch of government is responsible for making public

policy and how? Amicus takes no position here on any

health care, fiscal, or other public policy issues

implicated by this case. Instead, Amicus writes to

highlight the critical separation of powers issues that

underlie this case. Under the Constitution, it is not

this Court’s role to set public policy. Instead, the

Constitution tasks the democratically elected,

politically accountable branches—Congress and the

President—with resolving policy questions through

the deliberately arduous legislative process.

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

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

other than amicus made any monetary contributions intended to

fund the preparation or submission of this brief.

2

Amicus respectfully submits this brief in support

of neither party because the panel majority’s

capacious framing of Chevron deference “confirms the

continuing need for this Court to enforce limits on

Chevron deference, particularly as it is applied in the

D.C. Circuit, to ensure that it does not give cover to

federal agencies when they supplant Congress’s policy

judgments with their own.” Cert. Pet. 15. And “[i]f left

undisturbed, the decision will inevitably exert a

strong and unwarranted gravitational pull in the

direction of deference to agency interpretations of law

in the D.C. Circuit and beyond—exacerbating

separation-of-powers concerns.” Cert. Pet. 16. The

panel majority’s framing of Chevron deference “invites

federal agencies to engage in creative reimagining of

their statutory mandates.” Pet. Reply 10.

AFPF has an interest in this case because it

believes

judicially-created

executive-deference

regimes are inconsistent with bedrock separation-ofpowers principles and the text, structure, and history

of the U.S. Constitution. These executive-deference

doctrines—Chevron, Brand X, and the like—also

wrongly place a thumb on the scale in favor of the

nation’s most powerful litigant (the federal

government), rigging the judicial game against the

American people. Due process and fairness demand

that private litigants should be on equal footing with

the government in disputes adjudicated in Article III

courts.

SUMMARY OF ARGUMENT

In this country, all government power must flow

from its proper source: We the People. Our system of

government relies on the consent of the governed

3

memorialized in the U.S. Constitution. The People

have agreed on a system of separated powers, in which

the legislative, executive, and judicial branches

function as checks and balances on one another,

ensuring accountability and protecting liberty. The

Constitution does not grant legislative or judicial

powers to the Executive Branch, nor does it permit the

transfer of these powers to administrative bodies.

Nowhere in the Constitution does it say or even

suggest the People have agreed to be ruled by

unelected, politically unaccountable government

“experts.”

Accordingly, it should not be the case that an

independent Article III court tasked with saying what

the law is reflexively “defers” to Executive Branch

statutory interpretations annunciated via “legislative

rule.” And a fortiori it should not be the case that an

Article III court believes itself bound to defer to these

Executive Branch policy decisions, often disguised as

statutory interpretation, unless Congress specifically

bars the agency from acting. That is the opposite of

how our Constitution works, where power must be

granted before it can be exercised—not presumed

until prohibited.

It is black-letter law that federal agency power is

derived from, and limited by, federal statutes. Article

III tasks the Judiciary—not the Executive Branch—

with independently interpreting federal statutes in

contested cases. This reflects a key concept: the

separation of powers vital to protecting our liberties.

This means Congress legislates, the Executive Branch

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

4

private parties and federal officials charged with

enforcing the law, basic principles of due process and

fundamental fairness demand private parties be on

equal footing with the government in federal court.

Equally imperative, federal judges—who are experts

in interpreting federal statutes, as they are

constitutionally tasked with doing—should use, and

jealously safeguard, their independent judgment as to

what the law means.

But over time judicially-developed deference

regimes have emerged that effectively transfer core

Article III judicial powers (and core Article I

legislative powers) to unelected federal bureaucrats,

putting 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.

These deference doctrines, including Chevron, are

difficult, if not impossible, to square with the

Constitution and the Administrative Procedure Act

(“APA”), ultimately resulting in extraconstitutional

power-transfers that violate bedrock separation-ofpowers principles upon which our hard-won system of

checks and balances was built.

The Court should squarely overrule Chevron here

and now. 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). And as Justice Gorsuch

observed more recently: “Like a tower in the game of

5

Jenga, pull out this block or that one and the tower

may seem unaffected, especially if you do it with a bit

of finesse—and the lawyers who come up with the

justifications for the blending of powers have plenty of

that. But keep pulling out blocks, and eventually

what started out as a strong and stable tower will

begin to teeter.” Neil Gorsuch, A Republic, If You Can

Keep It, 73 (2019).

Chevron removed foundational blocks from our

Constitution’s system of checks and balances by

transferring core judicial and legislative powers to the

Executive. In so doing, it provided bureaucrats a

powerful tool to chisel away at the separation of

powers that protect liberty, as they creatively

reimagine and expand their powers. If nothing else,

these bureaucrats have proven to be remarkably

proficient at that constitutionally dubious task.

In addition to being unconstitutional, Chevron is

profoundly undemocratic. The real-world harms to

the American people flowing from the administrative

excesses it has enabled cannot be overstated. As a

practical matter, Chevron provided the pathway for

bureaucrats

housed

within

a

warren

of

extraconstitutional administrative bodies to enforce

unpopular policies, by claiming “force of law,” where

no such law was ever enacted by Congress. This

practice, which burdens businesses and restricts

individual liberty, without fair notice of what the law

prohibits or requires, should not be allowed to stand.

6

ARGUMENT

I.

CHEVRON

DEFERENCE

VIOLATES

THE

SEPARATION OF POWERS AND THREATENS

INDIVIDUAL LIBERTY.

A. The Separation of Powers and Our

Constitution’s Promise of an Independent

Judiciary Protect Individual Liberty.

“Our founding document begins by declaring that

‘We the People . . . ordain and establish this

Constitution.’ At the time, that was a radical claim,

an assertion that sovereignty belongs not to a person

or institution or class but to the whole of the people.”2

Gundy v. United States, 139 S. Ct. 2116, 2133 (2019)

(Gorsuch, J., dissenting). Toward that end, “the

Constitution proceeded to vest the authority to

exercise different aspects of the people’s sovereign

power in distinct entities.” Id. (Gorsuch, J.,

dissenting).

Subject

to

bicameralism

and

presentment, Article I of the Constitution vests “[a]ll

legislative Powers herein granted” in Congress—not

the courts and not the Executive branch. U.S. Const.

Art. I, § 1; see Gundy, 139 S. Ct. at 2123 (confirming

“assignment of power to Congress is a bar on its

further delegation”); Loving v. United States, 517 U.S.

2 Notably, “the Constitution vests lawmaking power in the most

politically accountable branch of our government—the Congress

of the United States.” Texas v. Rettig, 993 F.3d 408, 408 (5th Cir.

2021) (Ho, J., dissenting from denial of rehearing en banc). And

for good reason: “If legislators misused this power, the people

could respond, and respond swiftly.” Tiger Lily, LLC v. HUD, No.

21-5256, 2021 U.S. App. LEXIS 21906, at *14 (6th Cir. July 23,

2021) (Thapar, J., concurring).

7

748, 758 (1996) (“[T]he lawmaking function belongs to

Congress . . . and may not be conveyed to another

branch or entity.”). Article II tasks the Executive

Branch with faithfully executing the law. U.S. Const.

Art. II, § 3. Article III “vests the judicial power

exclusively in Article III courts, not administrative

agencies.” Michigan v. EPA, 576 U.S. 743, 762 (2015)

(Thomas, J., concurring).

Under the separation of powers, Congress

legislates, the Executive Branch enforces the law, and

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

Marbury, 5 U.S. (1 Cranch) at 177. “That is the

equilibrium the Constitution demands. And when one

branch impermissibly delegates its powers to another,

that balance is broken.” Tiger Lily, LLC v. HUD, No.

21-5256, 2021 U.S. App. LEXIS 21906, at *14 (6th Cir.

July 23, 2021) (Thapar, J., concurring).

“Separation-of-powers 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). To be sure, “[t]he separation of

powers and its role in protecting individual liberty

and the rule of law can sound pretty abstract. . . . After

all, the value of the separation of powers isn’t always

as obvious as the value of other sorts of constitutional

protections.” A Republic at 41, 45. But it bears

reminding that “[w]hen the separation of powers goes

ignored, those who suffer first may be the unpopular

and least among us[.] . . . But they are not likely to be

the last.” Id. at 46. For as James Madison famously

wrote, “[t]he accumulation of all powers, legislative,

executive, and judiciary, in the same hands . . . may

8

justly be pronounced the very definition of tyranny.”

The Federalist No. 47. And as Alexander Hamilton

wisely 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.

This separation “might seem inconvenient and

inefficient to those who wish to maximize

government’s coercive power.” See Texas v. Rettig, 993

F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from

denial of rehearing en banc). But “[t]o 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, 575 U.S.

92, 118 (2015) (Thomas, J., concurring in the

judgment) (cleaned up). 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).

Accordingly, “[w]hen 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,’ . . . [which] requires a court to exercise

9

its [independent judgment] in interpreting and

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

(Thomas, J., concurring in the judgment). 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. As Justice Story explained:

[I]t is not to be forgotten, that ours is a

government of laws, and not of men; and

that the Judicial Department has

imposed upon it, by the Constitution, the

solemn duty to interpret the laws, in the

last resort; and however disagreeable

that duty may be, in cases where its own

judgment shall differ from that of other

high functionaries, it is not at liberty to

surrender, or to waive it.

United States v. Dickson, 40 U.S. 141, 162 (1841).

At least, that is how it is supposed to work.

B. Chevron Deference Threatens Individual

Liberty By Transferring Legislative and

Judicial Powers to the Executive.

By contrast, Chevron reflects judge-made law of

the same vintage that gave us the “Walkman,” VCRs,

Nintendo, and the Soviet Union’s boycott of the

Olympics. “In 1984, a bare quorum of six Justices

decided Chevron.” Baldwin, 140 S. Ct. at 691

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

Chevron requires that “if a court finds a statute’s

10

meaning ambiguous it may not resolve the ambiguity

using the traditional tools of statutory interpretation

that judges have employed for centuries. Instead, the

court must defer to an executive agency’s decision

about the law’s meaning.”

A Republic at 75.

Accordingly, “Chevron is in serious tension with the

Constitution, the APA, and over 100 years of judicial

decisions.” Baldwin, 140 S. Ct. at 691 (Thomas, J.,

dissenting from the denial of certiorari); see Kisor v.

Wilkie, 139 S. Ct. 2400, 2446 n.114 (2019) (Gorsuch,

J., concurring in the judgment); Cnty. of Maui v. Haw.

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

J., dissenting) (Chevron deference “likely conflicts

with the Vesting Clauses of the Constitution”).

“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

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

dissenting). That is exactly what happened here. The

focus of the panel majority’s Chevron analysis was not

even on whether the text showed Congress granted

the agency the powers it claimed but precisely the

opposite: whether there was conclusive proof that

Congress “directly foreclose[d]” the agency’s claimed

authority.3 See Pet. App. 19a. This is backwards and

3 The panel majority noted that HHS did not invoke

Chevron

“expressly until a post-argument letter submitted to the Court,”

but it said an “agency cannot forfeit Chevron’s applicability.” Pet.

App. 18a. That too was error. See HollyFrontier Cheyenne Ref.,

LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180 (2021)

11

“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. But that is what Chevron does.

“Chevron compels judges to abdicate the judicial

power without constitutional sanction.” Baldwin, 140

S. Ct. at 691 (Thomas, J., dissenting from denial of

certiorari). And that is what was done here.

1. Chevron Stacks the Deck Against the

American People.

“[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).

Chevron breaks Article III’s promise of an

independent, neutral judicial decisionmaker, as “[a]

court must . . . [defer to the agency] even when the

(“[T]he government is not invoking Chevron. We therefore

decline to consider whether any deference might be due its

regulation.” (cleaned up)).

12

agency’s decision is influenced by politics, and even if

the agency later changes its position in response to a

new election or political pressure.” A Republic at 75.

2. Chevron Transfers Legislative Powers

to Unelected Executive Officials.

On the front end, Chevron transfers Congress’s

lawmaking powers to Executive agents on the

constitutionally dubious theory that Congress may

sub-delegate its legislative duties to another branch of

government.4 “In reality,” as Justice Thomas has

observed, “agencies ‘interpreting’ ambiguous statutes

typically are not engaged in acts of interpretation at

all. Instead, as Chevron itself acknowledged, they are

engaged in the formulation of policy.” Michigan v.

EPA, 576 U.S. at 762 (Thomas, J., concurring)

(cleaned up).

More specifically, under Chevron, the theory

claims that when Congress drafts “ambiguous”

statutes, it implicitly transfers to Executive agents

the authority to make generally applicable (and

sometimes retroactive) rules with the force of law;

“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.” Id. (Thomas, J.,

concurring). It is challenging to see how this is a sound

4 “The principle that Congress cannot delegate away its vested

powers exists to protect liberty. Our Constitution, by careful

design, prescribes a process for making law, and within that

process there are many accountability checkpoints.” DOT v.

Ass’n of Am. R.R., 575 U.S. 43, 61 (2015) (Alito, J., concurring).

13

theory of statutory interpretation. Or why these

Executive agents should be allowed to set public

policy. “Not only is Chevron’s purpose seemingly at

odds with the separation of legislative and executive

functions, its effect appears to be as well.” GutierrezBrizuela, 834 F.3d at 1154 (Gorsuch, J., concurring).

Chevron’s theoretical underpinnings (doctrinally

complicated as they are) are counterintuitive because

“[i]n a democracy, the power to make the law rests

with those chosen by the people.”5 King v. Burwell,

576 U.S. 473, 498 (2015); see U.S. Const. Art. I, § 1.

3. Chevron Transfers Judicial Authority

to Unelected Executive Officials.

On the back end, Chevron permits executive

agencies “to swallow huge amounts of core judicial”

power. Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch,

J., concurring). Chevron “forc[es] . . . [judges] to

abandon what they believe is the best reading of an

ambiguous statute in favor of an agency’s

construction. It thus wrests from Courts the ultimate

interpretative authority to say what the law is and

hands it over to the Executive.” Michigan v. EPA, 576

U.S. at 761 (Thomas, J., concurring) (cleaned up). Put

differently, “Chevron invests the power to decide the

meaning of the law, and to do so with legislative policy

goals in mind, in the very entity charged with

“The modern administrative state illustrates what happens

when we ignore the Constitution: Congress passes problems to

the executive branch and then engages in finger-pointing for any

problems that might result. The bureaucracy triumphs—while

democracy suffers.” Rettig, 993 F.3d at 409 (Ho, J., dissenting

from denial of rehearing en banc).

5

14

enforcing the law. Under its terms, an administrative

agency may set and revise policy (legislative), override

adverse judicial determinations (judicial), and

exercise

enforcement

discretion

(executive).”

Gutierrez-Brizuela, 834 F.3d at 1155 (Gorsuch, J.,

concurring).

Needless to say, “[w]hen it applies, Chevron is a

powerful weapon in an agency’s regulatory arsenal. .

. . It would be a bit much to describe the result as ‘the

very definition of tyranny,’ but the danger posed by

the growing power of the administrative state cannot

be dismissed.”6 City of Arlington v. FCC, 569 U.S. 290,

314–15 (2013) (Roberts, C.J., dissenting) (citation

omitted). “This apparent abdication by the Judiciary

and usurpation by the Executive is not a harmless

transfer of power. . . . Perhaps worst of

all, Chevron deference undermines the ability of the

Judiciary to perform its checking function on the other

branches.” Baldwin, 140 S. Ct. at 691–92 (Thomas, J.,

dissenting from denial of certiorari). While the

judiciary may have limited power to force Congress to

do its job, at the minimum, the Court may and should

jealously guard its own authority against

encroachment by the Executive.

As Justice Jackson explained, “[t]he rise of administrative

bodies probably has been the most significant legal trend of the

last century and perhaps more values today are affected by their

decisions than by those of all the courts, review of administrative

decisions apart. They also have begun to have important

consequences on personal rights.” FTC v. Ruberoid Co., 343 U.S.

470, 487 (1952) (Jackson, J., dissenting).

6

15

4. Chevron and Its Constitutionally

Challenged Companion, Brand X, Are

At Odds with Due Process.

Further still, the Chevron doctrine harms

individual rights. “Transferring the job of saying

what the law is from the judiciary to the executive

unsurprisingly invites the very sort of due process

(fair notice) and equal protection concerns the framers

knew would arise if the political branches intruded on

judicial functions.” Gutierrez-Brizuela, 834 F.3d at

1152 (Gorsuch, J., concurring). “By transferring more

and more power from the legislature and judiciary to

the executive, we alter piece by piece the framers’

work and risk the underlying values it was designed

to serve.” A Republic at 73. Those values include “fair

notice; protection for the inherent value of every

individual person, including especially dissenting

voices; democratic accountability; and the rule of law

as administered by independent judges and juries.”

Id. Chevron plainly threatens all of them.

Chevron creates a regime where the People “are

charged with an awareness of Chevron; [then]

required to guess whether the statute will be declared

‘ambiguous’. . . ; and [then] required to guess (again)

whether an agency’s interpretation will be deemed

‘reasonable.’” Gutierrez-Brizuela, 834 F.3d at 1152

(Gorsuch, J., concurring). “Even if the people somehow

manage to make it through this far unscathed, they

must always remain alert to the possibility that the

agency will reverse its current view 180 degrees

anytime based merely on the shift of political winds

and still prevail. Neither, too, will agencies always

deign to announce their views in advance[.]” Id.

(Gorsuch, J., concurring).

16

Making matters worse, under National Cable &

Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967 (2005), a wayward cousin and

malignant outgrowth of Chevron, “there are indeed

some occasions when a federal bureaucracy can

effectively overrule a judicial decision.” De Niz Robles

v. Lynch, 803 F.3d 1165, 1167 (10th Cir. 2015)

(Gorsuch, J.). Brand X obligates courts to defer to

“reasonable” agency interpretations of ambiguous

statutes supposedly reflecting quasi-legislative

agency policy choices, “even when doing so means . . .

[courts] must overrule [their] . . . own preexisting and

governing statutory interpretation” precedent. Id.

This means businesses and individuals cannot rely on

case law interpreting statutes to plan their affairs.

Like Chevron, “Brand X appears to be

inconsistent with the Constitution[.]” Baldwin, 140 S.

Ct. at 691 (Thomas, J., dissenting from denial of

certiorari); see also Chi. & S. Air Lines, Inc. v.

Waterman S.S. Corp., 333 U.S. 103, 113–14 (1948)

(Jackson, J.) (“It has also been the firm and unvarying

practice of Constitutional Courts to render no

judgments not binding and conclusive on the parties

and none that are subject to later review or alteration

by administrative action.”). And as Justice Thomas

has suggested, skepticism of Brand X’s constitutional

pedigree should “begin[] at its foundation—

Chevron deference.” Baldwin, 140 S. Ct. at 691.

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

As a leading scholar of statutory interpretation

explained: “Brand X is arguably the capstone of the

Court’s Chevron evolution: it works a wholesale

transfer of statutory interpretation authority from

federal courts to agencies.” Abbe R. Gluck, What 30

17

Years of Chevron Teach Us About the Rest of Statutory

Interpretation, 83 Fordham L. Rev. 607, 625 (2014).

That sums it up well. After all, “[i]f you accept

Chevron’s claim that legislative ambiguity represents

a license to executive agencies to render authoritative

judgments about what a statute means, Brand X’s

rule requiring courts to overturn their own contrary

judgments does seem to follow pretty naturally.”

Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J.,

concurring).

As the capstone of the Chevron

experiment, “Brand X has taken this Court to the

precipice of administrative absolutism,” and “it

poignantly lays bare the flaws . . . [of] executivedeference jurisprudence.” Baldwin, 140 S. Ct. at 695.

The Chevron/Brand X framework thus stands in

serious tension with the basic due process

requirement of fair notice. “A fundamental principle

in our legal system is that laws which regulate

persons or entities must give fair notice of conduct

that is forbidden or required.” FCC v. Fox TV Stations,

Inc., 567 U.S. 239, 253 (2012). And “[r]etroactivity is

not favored in the law.” Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 208 (1988). Deference doctrines

like Chevron and Brand X undermine this

fundamental principle. See Gutierrez-Brizuela, 834

F.3d at 1152 (Gorsuch, J., concurring).7

7 “The retroactivity of Chevron deference adds another paradox.

An agency’s authoritative interpretation of a statute attracts

deference even in cases about transactions that occurred before

the issuance of the interpretation. But how would this rule work

18

II.

CHEVRON VIOLATES THE APA.

In addition to violating the Constitution in

multifarious ways, Chevron is contrary to the APA’s

plain language. As Justice Scalia observed: “There is

some question whether Chevron was faithful to the

text of the . . . [APA], which it did not even bother to

cite.” United States v. Mead Corp., 533 U.S. 218, 241

(2001) (Scalia, J., dissenting). For good reason. See

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2150 (2016) (explaining that

Chevron is “an atextual invention by courts”).

The APA tasks federal courts with independently

saying what the law is without placing a thumb on the

scale for the government: “To the extent necessary to

decision and when presented, the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the terms of

an agency action.” 5 U.S.C. § 706 (emphasis added).

Thus, as then-Judge Gorsuch observed:

Chevron’s inference about hidden

congressional intentions seems belied by

the intentions Congress has made

textually manifest. . . . [N]ot a word can

be found here about delegating

legislative authority to agencies. On this

record, how can anyone fairly say that

in a criminal setting given the Ex Post Facto Clause?” Carter v.

Welles-Bowen Realty, Inc., 736 F.3d 722, 733 (6th Cir. 2013)

(Sutton, J., concurring).

19

Congress ‘intended’ for courts to abdicate

their statutory duty under § 706 and

instead ‘intended’ to delegate away its

legislative power to executive agencies?

The fact is, Chevron’s claim about

legislative intentions is no more than a

fiction—and one that requires a pretty

hefty suspension of disbelief at that.

Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J.,

concurring).8 See also Baldwin, 140 S. Ct. at 692

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

(“Even if Chevron raised no constitutional concerns,

these statutory arguments give rise to serious doubts

about Chevron’s legitimacy.”).

CONCLUSION

This Court should overrule Chevron.

8 As Professor Aditya Bamzai explained: “[T]he proposition that

Chevron has a basis in traditional interpretive methodology, the

views of the Framers of the . . . Constitution, or section 706 of the

[APA] should be abandoned—that proposition is a fiction.”

Aditya Bamzai, The Origins of Judicial Deference to Executive

Interpretation, 126 Yale L.J. 908, 1001 (2017).

20

Respectfully submitted,

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

September 10, 2021