Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Sierra Club, et al.

No. 20-138

In The

Supreme Court of the United States

____________________

DONALD J. TRUMP,

President of the United States, et al.,

Petitioners,

v.

SIERRA CLUB, et al.,

Respondents.

____________________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

____________________

OLIVER J. DUNFORD

JONATHAN WOOD

Pacific Legal Foundation

Counsel of Record

4440 PGA Blvd., Suite 307

Pacific Legal Foundation

Palm Beach Gardens, FL 33410 3100 Clarendon Blvd.,

Telephone: (916) 503-9060

Suite 610

ODunford@pacificlegal.org

Arlington, VA 22201

Telephone: (202) 888-6881

JWood@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

Table of Contents

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

Interests of Amicus Curiae ......................................... 1

Introduction and Summary of Argument .................. 2

Argument .................................................................... 3

I.

The Zone-of-Interests Test Is Unsupported

by the APA’s Text ............................................. 3

II.

In This Court, the Zone-of-Interests

Test Has Been a Solution in Search

of a Problem...................................................... 9

III. The Zone-of-Interests Test Invites

Courts to Impose Their Subjective

View of a Statute’s Purpose ........................... 11

IV. Even if the Zone-of-Interests Test

Were Proper, Separation of Powers

Provisions Like § 8005 Implicate a

Wide Range of Individual Interests .............. 16

Conclusion ................................................................. 18

ii

Table of Authorities

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................. 4

Air Courier Conf. of Am. v.

American Postal Workers Union AFL-CIO,

498 U.S. 517 (1991) ........................................ 7, 9-11

Alabama Power Co. v. Ickes,

302 U.S. 464 (1938) ................................................. 6

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 14

Arnold Tours, Inc. v. Camp,

400 U.S. 45 (1970) ................................................... 9

Association of Data Processing Service

Organizations, Inc. v. Camp,

397 U.S. 150 (1970) ................................ 2, 6-7, 9, 15

Barlow v. Collins,

397 U.S. 159 (1970) ................................................. 9

Bennett v. Spear,

520 U.S. 154 (1997) ............................ 6, 9, 11-12, 16

Bond v. United States,

564 U.S. 211 (2011) ...................................... 3, 17-18

City of Arlington, Tex. v. F.C.C.,

569 U.S. 290 (2013) .......................................... 14-15

Clarke v. Securities Industry Ass’n,

479 U.S. 388 (1987) ............................. 5-9, 11-12, 16

Dalton v. Specter,

511 U.S. 462 (1994) ............................................... 17

iii

Dep’t of Homeland Sec. v.

Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) ............................................. 4

Director, Office of Workers’ Comp. Programs,

Dep’t of Labor v. Newport News

Shipbuilding & Dry Dock Co.,

514 U.S. 122 (1995) ................................................. 7

Dunlop v. Bachowski,

421 U.S. 560 (1975) ................................................. 4

Fed. Election Comm’n v. Akins,

524 U.S. 11 (1998) ............................................... 7, 9

Free Enterprise Fund v.

Public Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) .................................... 13-14, 18

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990) ............................................... 10

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) ............................................. 4

Haitian Refugee Ctr. v. Gracey,

809 F.2d 794 (D.C. Cir. 1987) ............................... 15

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ........................................... 13

I.N.S. v. Chadha,

462 U.S. 919 (1983) ............................................... 14

Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221 (1986) ................................................. 9

Kent Recycling Servs., LLC v.

U.S. Army Corps of Eng’rs,

136 S. Ct. 2427 (2016) ............................................. 1

iv

Kucana v. Holder,

558 U.S. 233 (2010) ................................................. 4

Lewis v. Clarke,

137 S. Ct. 1285 (2017) ............................................. 9

Lexmark Int’l, Inc. v.

Static Control Components, Inc.,

572 U.S. 118 (2014) .............................................. 7-8

Lincoln v. Vigil,

508 U.S. 182 (1993) ................................................. 4

Lockhart v. United States,

136 S. Ct. 958 (2016) ........................................... 5, 7

Lujan v. National Wildlife Federation,

497 U.S. 871 (1990) ......................................... 5, 7, 9

Mach Mining, LLC v. E.E.O.C.,

575 U.S. 480 (2015) ........................................... 4, 14

Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak,

567 U.S. 209 (2012) ..................................... 9, 11, 16

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) ........................................... 13

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ................................................. 9

Nat’l Ass’n of Mfrs. v. Dep’t of Defense,

138 S. Ct. 617 (2018) ............................................. 13

Nat’l Credit Union Admin. v.

First Nat’l Bank & Trust Co.,

522 U.S. 479 (1998) ......................................... 5, 7, 9

Nevada Land Action Ass’n v. U.S. Forest Serv.,

8 F.3d 713 (9th Cir. 1993) ..................................... 12

v

Rodriguez v. United States,

480 U.S. 522 (1987) ............................................... 13

Sackett v. Environmental Protection Agency,

566 U.S. 120 (2012) ............................................. 1, 6

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ............................................. 8

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ............................................... 10

Thompson v. North American Stainless LP,

562 U.S. 170 (2011) ............................................. 7, 9

U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016) ......................................... 1, 6

Weyerhaeuser v. U.S. Fish & Wildlife Serv.,

139 S. Ct. 361 (2018) .................................. 1-2, 4, 15

Constitutional Provisions

U.S. Const. art. I, § 9, cl. 7........................................ 16

Statutes

39 U.S.C. § 410(a) ..................................................... 11

601(b) ....................................................................... 9

5 U.S.C. § 701(a) ..................................................... 2, 4

701(a)(1) ................................................................. 12

702..................................................................... 2-3, 8

Department of Defense Appropriations Act,

Pub. L. No. 115-245, 132 Stat. 2981 (2019)...... 2, 17

vi

Other Authorities

Black’s Law Dictionary (10th ed. 2014) ................. 5, 7

Kagan, Elena, Presidential Administration,

114 Harv. L. Rev. 2245 (2001) ......................... 14-15

Keeton, W. Page, et al., Prosser and Keeton

on Law of Torts (5th ed. 1984) ................................ 8

Manning, John F.,

What Divides Textualists From Purposivists?,

106 Colum. L. Rev. 70 (2006) ................................ 13

Nathan, Richard P.,

The Administrative Presidency (1986).................. 15

Scalia, Antonin & Garner, Bryan A.,

Reading Law: The Interpretation

of Legal Texts (2012) ............................................ 5-6

Schiff, Damien M., Judicial Review Endangered:

Decisions Not to Exclude Areas From Critical

Habitat Should Be Reviewable Under the APA,

47 Envtl. L. Rep. 10,352 (2017) .............................. 1

Schiff, Damien M.,

Purposivism and the “Reasonable Legislator,”

33 Wm. Mitchell L. Rev. 1081 (2007) ................... 13

Seigel, Jonathan R., Zone of Interests,

92 Geo. L.J. 317 (2004).............................. 4-5, 11-12

The Federalist No. 47 (J. Cooke ed. 1961) ............... 14

1

Interests of Amicus Curiae

Founded in 1973, PACIFIC LEGAL FOUNDATION is a

nonprofit, tax-exempt corporation organized under

the laws of the state of California for the purpose of

engaging in litigation in matters affecting the public

interest. PLF provides a voice in the courts for

Americans who believe in limited government, private

property rights, and individual freedom.

PLF is the most experienced public-interest legal

organization defending the constitutional principle of

separation of powers in the arena of administrative

law. PLF’s attorneys have participated as lead counsel

in several cases involving judicial review of agency

action under the Administrative Procedure Act. See,

e.g., Weyerhaeuser v. U.S. Fish & Wildlife Serv., 139

S. Ct. 361 (2018); U.S. Army Corps of Eng’rs v. Hawkes

Co., 136 S. Ct. 1807 (2016); Kent Recycling Servs., LLC

v. U.S. Army Corps of Eng’rs, 136 S. Ct. 2427 (2016);

Sackett v. Environmental Protection Agency, 566 U.S.

120 (2012). PLF attorneys have also generated

substantial scholarship on this issue. See, e.g.,

Damien M. Schiff, Judicial Review Endangered:

Decisions Not to Exclude Areas From Critical Habitat

Should Be Reviewable Under the APA, 47 Envtl. L.

Rep. 10,352 (2017).1

1 All parties have consented to the filing of this brief. PLF affirms

that no counsel for any party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than PLF or its counsel made a monetary

contribution to its preparation or submission.

2

Introduction and Summary of Argument

The Administrative Procedure Act provides that

any person “adversely affected” by agency action “is

entitled to judicial review thereof,” 5 U.S.C. § 702,

unless Congress expressly exempts the agency action

from judicial review or the action is the sort

traditionally understood as unreviewable, id. § 701(a).

See Weyerhaeuser v. U.S. Fish and Wildlife Serv., 139

S. Ct. 361 (2018). Under this text, the answer to the

first question presented is straightforward.

In 2019, the Acting Secretary of Defense diverted

money Congress had appropriated for one purpose to

instead fund border-wall construction, an action

which Sierra Club and the other plaintiffs

(collectively, Sierra Club) assert violates Section 8005

of the Department of Defense Appropriations Act,

Pub. L. No. 115-245, Div. A, Tit. VIII, 132 Stat. 2981,

2999 (2019). Pet. App. 17a. The Government does not

dispute that Sierra Club is adversely affected by the

Acting Secretary of Defense’s action. Nor does the

Government argue that any statute precludes review

or that the challenged action fits any historical

category of unreviewable agency action. This is

enough to hold that Sierra Club has a cognizable claim

under the APA.

Yet the Government argues that the claim is

foreclosed by the “zone-of-interests” test, which

purports to limit judicial review to those interests

Congress intended to protect under the relevant

statute. See Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150, 153-54

(1970). This Court has rejected zone-of-interests test

arguments in all but one of the APA cases in which

they were raised. See infra Part II. It should reject the

3

argument again here but also take the further step of

acknowledging that the zone-of-interests test has no

place in the Court’s interpretation of the APA. The

test has no foundation in the APA’s text and invites

courts to speculate about the purposes underlying

statutes wholly divorced from the text, speculation

which this Court has rightly considered improper in

other contexts.

Even if the zone-of-interests test were a proper

limit on judicial review under the APA, it should be no

obstacle here. The Government’s arguments to the

contrary rely on a miserly view of the purposes served

by the Constitution’s separation of powers, a view that

this Court has correctly rejected. See Bond v. United

States, 564 U.S. 211, 222 (2011). The Appropriations

Clause, a structural protection for the separation of

powers, protects Congress’ power of the purse not for

its own sake but to limit government power and,

thereby, preserve individual rights and liberty. By

constraining Executive Branch officials’ discretion to

depart from Congress’ appropriation decisions,

Section 8005 secures this structural protection and,

therefore, implicates the same broad interests.

Argument

I.

The Zone-of-Interests Test Is

Unsupported by the APA’s Text

Under the APA, any person “adversely affected or

aggrieved by agency action within the meaning of a

relevant statute[] is entitled to judicial review

thereof.” 5 U.S.C. § 702. Congress provided only two,

narrow exceptions to this broad right of review:

(1) when the relevant statute explicitly precludes

4

judicial review and (2) when the action is “committed

to agency discretion by law.” See id. § 701(a).

Giving effect to the APA’s broad text, this Court

has recognized a strong presumption that agency

actions are judicially reviewable. See Abbott Labs. v.

Gardner, 387 U.S. 136, 140-41 (1967). To overcome

this presumption, an agency bears the “heavy

burden,” Mach Mining, LLC v. E.E.O.C., 575 U.S. 480,

486 (2015), to establish by “clear and convincing”

evidence that Congress intended to foreclose review,

Dunlop v. Bachowski, 421 U.S. 560, 567 (1975).

The presumption’s strength is such that the APA’s

two explicit exceptions are narrowly applied.

Therefore, any statute purporting to limit judicial

review under the APA is interpreted narrowly

whenever possible. See Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062, 1068-69 (2020) (statute limiting

judicial review to “questions of law” does not bar

review of a “mixed question of law and fact”). See also

Kucana v. Holder, 558 U.S. 233, 251 (2010). Likewise,

the Court has read the exception for actions

committed to agency discretion by law “‘quite

narrowly,’ confining it to those rare ‘administrative

decision[s] traditionally left to agency discretion[.]’”

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891, 1905 (2020) (quoting Weyerhaeuser

Co., 139 S. Ct. at 370, and Lincoln v. Vigil, 508 U.S.

182, 191 (1993)).

For the same reasons that the APA’s explicit

exceptions are construed narrowly, courts should not

create other exceptions by fiat. See Jonathan R.

Seigel, Zone of Interests, 92 Geo. L.J. 317, 343 (2004)

(“Because Congress has the power to specify who may

challenge agency action and has exercised it in Section

5

702 . . . there is no room for a separate, judicially

crafted body of law delineating which parties are

entitled to seek judicial review of agency action under

the APA.”). Yet that’s precisely how the zone-ofinterests test arose. In adopting the test, this Court

added “a gloss on the meaning” of § 702. Clarke v.

Securities Industry Ass’n, 479 U.S. 388, 395-96 (1987).

It “supplied this gloss by adding to” § 702’s adversely

affected or aggrieved requirement “the additional

requirement that ‘the interest sought to be protected

by the complainant [be] arguably within the zone of

interests . . . .’” Id. (citation omitted).

The zone-of-interests test is unsupported by the

text, structure, and intent of § 702. The Court’s

conclusory suggestion to the contrary—see Lujan v.

National Wildlife Federation, 497 U.S. 871, 883 (1990)

(suggesting § 702’s reference to “within the meaning

of a relevant statute” as a textual hook for the test)2—

collapses under scrutiny. Under the last-antecedent

rule, “within the meaning of a relevant statute” does

not modify “adversely affected” but “agency action.”

See Lockhart v. United States, 136 S. Ct. 958, 962-63

(2016). See also Black’s Law Dictionary 1532-33 (10th

ed. 2014) (“[Q]ualifying words or phrases modify the

words or phrases immediately preceding them and not

words or phrases more remote, unless the extension is

necessary from the context or the spirit of the entire

writing.”); Antonin Scalia & Bryan A. Garner,

2 See also Nat’l Credit Union Admin. v. First Nat’l Bank & Trust

Co., 522 U.S. 479, 504 (1998) (“[R]espondents must establish that

the injury they assert is ‘within the meaning of a relevant

statute,’ i.e. satisfies the zone-of-interests test.”).

6

READING LAW: THE INTERPRETATION OF LEGAL TEXTS

144 (2012).3

The structure and intent of § 702 reinforce the

natural reading of the test. Determining what

constitutes a reviewable agency action requires

careful consideration of the context of an agency

decision within the broader statutory scheme. In

Sackett v. Environmental Protection Agency, for

instance, this Court considered whether an

administrative compliance order issued under the

Clean Water Act was subject to pre-enforcement

review under § 702. 566 U.S. 120 (2012). To answer

that question, the Court looked to the role

administrative compliance orders play under the

Clean Water Act, the consequences resulting from

such orders under the statute, and whether the

statute provided reasonable, alternative avenues for

judicial review. See id. at 125-28. This Court’s other

APA cases are in accord. See, e.g., U.S. Army Corps of

Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813-16

(2016) (analyzing the role and effect of a jurisdictional

determination under the Clean Water Act to conclude

that its issuance is a reviewable agency action);

Bennett v. Spear, 520 U.S. 154, 177-78 (1997)

(analyzing the role and effect of a biological opinion

3 Section 702’s opening phrase, referring to any person “suffering

legal wrong because of agency action,” codifies a pre-APA body of

law authorizing judicial review where an agency adjudication or

order deprives one of a legal right. See, e.g., Alabama Power Co.

v. Ickes, 302 U.S. 464, 479 (1938). Because “legal wrong” provides

the relevant limits, that phrase does not incorporate some of the

restrictions, including “within the meaning of a relevant statute,”

that apply to review under § 702’s “adversely affected or

aggrieved” clause. See Ass’n of Data Processing Serv. Orgs., 397

U.S. at 174 & n.8 (Brennan, J., concurring).

7

under the Endangered Species Act to conclude its

issuance is a reviewable agency action). And, as the

strong presumption of judicial review recognizes, the

intent of the APA’s judicial review provisions is “to

enlarge the class of people who may protest

administrative action.” See Ass’n of Data Processing

Serv. Orgs., 397 U.S. at 154-55.

National Wildlife Federation does not address the

last-antecedent rule, nor suggest why a departure

from that rule is necessary from “the context or the

spirit of the entire writing.” See Lockhart, 136 S. Ct.

at 962-63 (quoting Black’s Law Dictionary 1532-33).

Instead, National Wildlife Federation simply asserts

that the zone-of-interests test lurks in the phrase

“within the meaning of a relevant statute” without

offering any supporting analysis. See 497 U.S. at 883.

No subsequent decision from this Court offers a cogent

argument in support of National Wildlife Federation’s

unexplained suggestion. See, e.g., Thompson v. North

American Stainless LP, 562 U.S. 170, 177-78 (2011);

Fed. Election Comm’n v. Akins, 524 U.S. 11, 19-20

(1998); Nat’l Credit Union Admin., 522 U.S. at 504;

Director, Office of Workers’ Comp. Programs, Dep’t of

Labor v. Newport News Shipbuilding & Dry Dock Co.,

514 U.S. 122, 126-27 (1995); Air Courier Conf. of Am.

v. American Postal Workers Union AFL-CIO, 498 U.S.

517, 523-24 (1991).

In fact, the zone-of-interests test is founded on an

analogy to tort law, not § 702’s text. See Lexmark Int’l,

Inc. v. Static Control Components, Inc., 572 U.S. 118,

130 n.5 (2014).4 For that reason, the Court has found

4 Under the common law of torts, a mere violation of a statute

will not be deemed proof of negligence “unless the statute ‘is

interpreted as designed to protect the class of persons in which

8

the test more useful for analyzing causes of action

between private parties than for interpreting § 702.

See Lexmark, 572 U.S. at 130 (distinguishing other

cases from those under the APA’s “generous review

provisions”). See also infra Part II (explaining that

this Court has only once in fifty years denied review

in an APA case under the zone-of-interests test).

Whatever the merits of the analogy to tort law for

analyzing claims between private parties, the analogy

has no persuasive force when interpreting the APA’s

right of review, which raises unique separation of

powers and accountability concerns.

Under § 702, the “meaning of the relevant statute”

informs the reviewable agency-action inquiry, not

whether an adverse effect entitles a party to judicial

review. According to the APA’s text, that latter

inquiry is simple: any adverse effect that satisfies the

requirements of Article III standing gives rise to a

cognizable APA claim. See Clarke, 479 U.S. at 395-96

(equating “adversely affected” with suffering an

injury-in-fact).5 Here, the Government does not

dispute that Sierra Club has standing nor that it is

adversely affected by the challenged agency action.

the plaintiff is included, against the risk of the type of harm

which has in fact occurred as a result of its violation.’” Lexmark,

572 U.S. at 130 n.5 (quoting W. Page Keeton, et al., Prosser and

Keeton on Law of Torts § 36, pp. 229-30 (5th ed. 1984)).

The APA does not expressly require an adverse effect to

constitute an injury-in-fact for standing purposes. See 5 U.S.C.

§ 702. However, that limitation is derived from the Constitution

and cannot be set aside by Congress. See Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547-48 (2016). The zone-of-interests test enjoys

no such constitutional foundation.

5

9

Therefore, Sierra Club has a claim and the Ninth

Circuit’s holding on that point should be affirmed.6

II.

In This Court, the Zone-of-Interests

Test Has Been a Solution in Search

of a Problem

This Court has considered the zone-of-interests

test in the context of an APA claim on twelve

occasions. In eleven of those cases, the Court rejected

the agency’s zone-of-interests defense.7 The lone

exception—Air Courier Conference of America v.

American Postal Workers Union AFL-CIO, 498 U.S.

517 (1991)—epitomizes the notion that “bad facts

make bad law.”

In that case, Postal Service unions challenged a

Postal Service regulation suspending the agency’s

monopoly for certain categories of mail. Id. at 519. See

39 U.S.C. § 601(b) (authorizing the Postal Service to

suspend its monopoly if “in the public interest”). The

unions challenged this suspension on the theory that

6 Although Sierra Club does not argue that the zone-of-interests

test should be discarded for purposes of APA claims, that

question is fairly included within the first question presented

and is a purely legal question that is an integral part to

determining whether that test bars the claim presented here.

Therefore, it is a proper basis on which to resolve this case. See

Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017).

7 See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

v. Patchak, 567 U.S. 209 (2012); North Am. Stainless, LP, 562

U.S. 170; Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139

(2010); Akins, 524 U.S. 11; Nat’l Credit Union Admin., 522 U.S.

479; Bennett, 520 U.S. 154; Nat’l Wildlife Fed’n, 497 U.S. 871;

Clarke, 479 U.S. 388; Japan Whaling Ass’n v. Am. Cetacean

Soc’y, 478 U.S. 221, 230 n.4 (1986); Arnold Tours, Inc. v. Camp,

400 U.S. 45 (1970) (per curiam); Barlow v. Collins, 397 U.S. 159

(1970); Ass’n of Data Processing Serv. Orgs., 397 U.S. 159.

10

allowing private competition could reduce Postal

Service revenues which, in turn, “might have an

adverse effect on employment opportunities of postal

workers.” Am. Postal Workers Union, 498 U.S. at 524.

The Court found no evidence in the statute’s text or

legislative history that the Postal Service monopoly

was intended to protect postal employment and,

therefore, held that the claim failed the zone-ofinterests test. Id. at 525-30.

Yet American Postal Workers Union is notable less

for its zone-of-interests holding than the unusual

steps taken to get there. First, this Court ignored a

serious standing defect.8 The Court declined to

consider whether the union asserted an actual (as

opposed to hypothetical) injury-in-fact because the

standing issue “was not appealed.” See Am. Postal

Workers Union, 498 U.S. at 523-24. But, as this Court

has regularly affirmed since American Postal Workers

Union was decided, courts have “an independent

obligation to assure that standing exists, regardless of

whether it is challenged by any of the parties.” See,

e.g., Summers v. Earth Island Inst., 555 U.S. 488, 499

(2009).9 Second, the Court reached the zone-ofinterests test question even though Congress had

expressly exempted the Postal Service from the APA’s

8 The union’s standing relied on two levels of speculation: that

suspending the monopoly for one type of mail would appreciably

reduce Postal Service revenue and that this “might,” in turn,

have an adverse effect on postal employment. Am. Postal

Workers Union, 498 U.S. at 523-24.

9 This rule was first articulated in a case decided the year before

American Postal Workers Union. See FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990). Yet American Postal Workers

Union provides no explanation why the Court ignored the rule in

that case. See 498 U.S. at 523.

11

rulemaking and judicial-review provisions. Am. Postal

Workers Union, 498 U.S. at 522-23 (declining to

consider this issue because it was raised for the first

time on appeal). See 39 U.S.C. § 410(a). Thus, the only

time this Court has had cause to rely on the zone-ofinterests test under the APA was a case in which it

declined to consider two easier paths to the same

result. The Court could, thus, eliminate the test

without any significant interference with its past

precedents.

III.

The Zone-of-Interests Test Invites

Courts to Impose Their Subjective

View of a Statute’s Purpose

This Court has acknowledged that its articulation

of the zone-of-interests test provides little guidance to

the lower courts. See Clarke, 479 U.S. at 396 (“The

‘zone of interest’ formula . . . has not proved selfexplanatory[.]”). See also Seigel, supra, at 317-18

(“Almost everything . . . about this ‘zone of interests’

test, however, remains a mystery.”).

Indeed, the test is subject to several unresolved

contradictions. In American Postal Workers Union,

this Court’s holding that the unions’ claim was barred

rested on a lack of evidence in a statute’s text and

legislative history that Congress intended to protect

the plaintiffs. 498 U.S. at 525-30. But the Court has

subsequently said that the zone-of-interests test

“do[es] not require any ‘indication of congressional

purpose to benefit the would-be plaintiff.’” See MatchE-Be-Nash-She-Wish Band of Pottawatomi Indians,

567 U.S. at 225 (quoting Clarke, 479 U.S. at 399-400).

The Court has said that the zone-of-interests test is

not determined by generalities but should instead be

applied “by reference to the particular provision of law

12

upon which the plaintiff relies.” Bennett, 520 U.S. 17576. In other cases, the Court has rejected this myopic

approach, explaining that the test requires

consideration of “the overall context” of the law

invoked by the plaintiff, including “any provision that

helps us to understand Congress’ overall purposes[.]”

Clarke, 479 U.S. at 401.

Without any objective standard from this Court,

lower courts have applied the zone-of-interests test

subjectively, favoring some parties over others

according to the courts’ view of a statute’s highest

purpose. See Seigel, supra, at 341 (The zone-ofinterests test has “produced a system in which

different categories of plaintiffs receive unfairly

differing treatment.”). The Ninth Circuit, for instance,

has held that only those deemed to represent

“environmental” interests may bring claims under the

National Environment Policy Act (NEPA), a statute

which governs how agencies evaluate tradeoffs

between environmental and other considerations. See

Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d

713, 716 (9th Cir. 1993). So applied, the zone-ofinterests test introduces unjustified bias into the law.

The Ninth Circuit’s NEPA rule, for instance, ensures

that anyone who seeks more regulation of private

conduct on environmental grounds has a claim, but

many who object to such regulation issued on the basis

of arbitrary or biased analysis of environmental

tradeoffs do not. See id.

These subjective applications of the zone-ofinterests test deny parties’ their right to judicial

review not because a statute’s text requires that

result—that situation is already directly addressed by

the APA, see 5 U.S.C. § 701(a)(1)—but because courts

13

divine Congress’ unstated intention to preclude

review from (the court’s understanding of) a statute’s

purpose. So applied, the test adopts a free-wheeling

approach to statutory interpretation that this Court

has repeatedly rejected. See, e.g., McGirt v. Oklahoma,

140 S. Ct. 2452, 2468 (2020) (“[T]o ascertain and

follow the original meaning of the law before us . . . is

the only ‘step’ proper for a court of law.”); Nat’l Ass’n

of Mfrs. v. Dep’t of Defense, 138 S. Ct. 617, 632 (2018)

(rejecting an interpretation because it was

“completely unmoored from the statutory text”). Cf.

Damien M. Schiff, Purposivism and the “Reasonable

Legislator,” 33 Wm. Mitchell L. Rev. 1081, 1092

(2007) (such an approach can “cause a statute to

morph over time so that it reflects more and more a

particular lobby in the enacting Congress, thereby

giving effect to that lobby’s views to a degree not

democratically justifiable”).

“[N]o legislation pursues its purposes at all costs.”

Rodriguez v. United States, 480 U.S. 522, 525-26

(1987) (per curiam). See John F. Manning, What

Divides Textualists From Purposivists?, 106 Colum. L.

Rev. 70, 92, 104 (2006). Instead, enacting legislation

is “the art of compromise” between conflicting or

competing interests. Henson v. Santander Consumer

USA Inc., 137 S. Ct. 1718, 1725 (2017). To limit

judicial review to only a subset of those interests

“frustrates rather than effectuates” legislative intent.

See Rodriguez, 480 U.S. at 526.

This concern is especially weighty in the context of

the APA’s judicial review provision. Congress has

delegated vast swaths of its power to Executive

Branch agencies. See Free Enterprise Fund v. Public

Co. Accounting Oversight Bd., 561 U.S. 477, 499

14

(2010) (The administrative state “wields vast power

and touches almost every aspect of daily life[.]”); Alden

v. Maine, 527 U.S. 706, 807 (1999) (Souter, J.,

dissenting) (“[T]he administrative state with its

reams of regulations would leave [the Founders]

rubbing their eyes.”). Such delegations present a

difficult balancing-act: how to give agencies enough

power to achieve congressional aims but not so much

that they can go well beyond them. That balance has

momentous implications for the Constitution’s

separation of powers. See City of Arlington, Tex. v.

F.C.C., 569 U.S. 290, 315 (2013) (Roberts, C.J.,

dissenting) (“It would be a bit much to describe [the

concentration of power within federal agencies] as ‘the

very definition of tyranny,’ but the danger posed by

the growing power of the administrative state cannot

be dismissed.” (quoting The Federalist No. 47, p. 324

(J. Cooke ed. 1961) (J. Madison)).

But the balance is precarious. This Court

“know[s]—and know[s] that Congress knows—that

legal lapses and violations occur, and especially so

when they have no consequence.” Mach Mining, LLC,

575 U.S. at 488-89. That is why the Court “has so long

applied a strong presumption favoring judicial review

of administrative action.” Id. at 489.

Absent such review, an agency’s “compliance with

the law would rest in the [agency’s] hands alone.” Id.

at 488. Congress could not easily police agencies’

exercise of delegated power, as any legislative

response would be subject to presidential veto. See

I.N.S. v. Chadha, 462 U.S. 919 (1983). Nor could the

President. Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245, 2250 (2001) (“[N]o President

(or his executive office staff) could, and presumably

15

none would wish to, supervise so broad a swath of

regulatory activity.”). See Richard P. Nathan, THE

ADMINISTRATIVE PRESIDENCY 2 (1986) (quoting

President Truman as complaining, “I thought I was

the president, but when it comes to these bureaucrats,

I can’t do a damn thing”).

Thus, the right of review provided by the APA is

the primary mechanism for ensuring that agencies

fulfill congressional directives while also not acting

contrary to or in excess of their delegated authority.

Cf. City of Arlington, 569 U.S. at 327 (Roberts, C.J.,

dissenting) (“Our duty to police the boundary between

the Legislature and the Executive is as critical as our

duty to respect that between the Judiciary and the

Executive.”). By imposing atextual limits on judicial

review, the zone-of-interests test undermines without

justification the important role the APA plays in

ensuring agency accountability and preserving the

separation of powers. See Ass’n of Data Processing

Serv. Orgs., 397 U.S. at 175 n.9 (Brennan, J.,

concurring) (warning that courts should be especially

wary of the zone-of-interests test where withholding

review “would, in effect, commit the action wholly to

agency discretion”). The zone-of-interest test tips the

scales set by Congress, inviting litigation that accords

with agency power while turning away litigation that

seeks to enforce its limits.10 See Haitian Refugee Ctr.

v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987)

(noting the zone-of-interests test’s troubling

10 Under the Government’s theory, for instance, a would-be

contractor would likely have a claim against the Acting Secretary

for arbitrarily declining to transfer money to a project for which

that contractor would be hired, see Weyerhaeuser, 139 S. Ct. at

370-72, but a party adversely affected by an unlawful transfer

would not.

16

implications for claims against ultra vires agency

action).

IV.

Even if the Zone-of-Interests Test

Were Proper, Separation of Powers

Provisions Like § 8005 Implicate a

Wide Range of Individual Interests

Even were the zone-of-interests test a proper limit

on the APA’s right of review, it should be no obstacle

to Sierra Club’s claims here. This Court has

emphasized that the zone-of-interests test is not

“especially demanding” in the APA context. Match-EBe-Nash-She-Wish Band of Pottawatomi Indians, 567

U.S. at 225. The test “do[es] not require any

‘indication of congressional purpose to benefit the

would-be plaintiff.’” Id. (quoting Clarke, 479 U.S. at

399-400). Instead, it is enough that an interest is

“arguably” implicated by a statute. Bennett, 520 U.S.

at 162.

Contrary to the Government’s argument, § 8005

serves to protect not merely Congress’ interest in

preserving its power. Gov. Br. at 24-27. Instead,

§ 8005 must be understood “in the overall context” of

the appropriations process and the role of the

Appropriations Clause in the separation of powers.

See Clarke, 479 U.S. at 401. The Constitution gives

Congress alone the power of the purse. See U.S. Const.

art. I, § 9, cl. 7 (“No Money shall be drawn from the

Treasury, but in Consequence of Appropriations made

by Law[.]”). Section 8005 preserves this structural

guarantee for the separation of powers by

constraining Executive Branch discretion to reallocate

appropriated money. Relevant here, the clause

prevents an agency from simply reversing Congress’

appropriations decisions by transferring money to

17

programs that Congress considered and declined to

fund. See Pub. L. No. 115-245, Div. A, Tit. VIII.

Consequently, the interests implicated by § 8005 are

the same as those implicated by the Appropriations

Clause.11

“Separation-of-powers principles are intended, in

part, to protect each branch of government from

incursion by the others.” Bond, 564 U.S. at 222. “Yet

the dynamic between and among the branches” is not

the only or primary purpose. Id. Instead, “the

structural principles secured by the separation of

powers protect the individual as well.” Id. Therefore,

this Court has held that prudential concerns,

including the zone-of-interests test, id. at 218, do not

bar individuals from asserting their interests through

separation-of-powers claims. Id. at 222-24.

Suppose, for instance, that Congress delegated

significant authority to an officer who was subject to

Senate confirmation and, to preserve a measure of

democratic accountability and oversight, prohibited

that officer from subdelegating the authority to a

subordinate. Under the Government’s theory, such

provision would implicate only the interests of the

Senate and the officer. See Gov. Br. 24-27. But this

would be an unreasonably narrow understanding of

the purpose and effect of such a prohibition. A

subdelegation

prohibition

would

vindicate

Appointments Clause principles and, therefore,

11 To avoid any consideration of the Appropriations Clause, the

Government offers a non sequitur based on Dalton v. Specter, 511

U.S. 462 (1994). See Gov. Br. at 32. Whether Sierra Club has a

constitutional claim independent of its APA claim is irrelevant to

whether this Court can recognize the broad separation of powers

interests implicated by § 8005.

18

implicate the same broad individual interests as that

clause. Thus, anyone adversely affected by a

subordinate’s unlawful exercise of the delegated

power would have a cognizable claim under the APA.

See Bond, 564 U.S. at 223 (observing, by reference to

Free Enterprise Fund, 561 U.S. 477, that prudential

concerns are no obstacle to individuals enforcing

separation of powers principles under the

Appointments Clause).

So too for § 8005 and the Appropriations Clause.

When Congress decides what to fund—and, just as

importantly, what not to fund—it considers the

consequences of those decisions for individual rights

and interests. If, for instance, Congress declined to

fund an infrastructure project because of its

anticipated environmental impacts only to have an

Executive Branch official override Congress’ choice,

this would implicate not only Congress’ interest in

preserving its power but also the individual interests

affected by the project’s environmental impacts.

Consequently, if the zone-of-interests test is to be

retained, this Court should adopt a per se rule that it

is no obstacle to judicial review in cases that implicate

structural separation of powers principles. Cf. Bond,

564 U.S. at 218.

Conclusion

For the foregoing reasons, this Court should affirm

the Ninth Circuit and hold that the zone-of-interests

test does not constrain judicial review under the APA

or, if it does, that it is no obstacle here due to the broad

19

range of individual interests implicated by the

separation of powers.

DATED: January 2021.

Respectfully submitted,

OLIVER J. DUNFORD

JONATHAN WOOD

Pacific Legal Foundation

Counsel of Record

4440 PGA Blvd., Suite 307

Pacific Legal Foundation

Palm Beach Gardens, FL 33410 3100 Clarendon Blvd.,

Telephone: (916) 503-9060

Suite 610

ODunford@pacificlegal.org

Arlington, VA 22201

Telephone: (202) 888-6881

JWood@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation