Amicus Curiae Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.

Nos. 20-1530, 20-1531, 20-1778, 20-1780

IN THE

Supreme Court of the United States

_________________________________________________

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

____________________________________________________________________________________________________

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

____________________________________________________________________________________________________

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

____________________________________________________________________________________________________

NORTH DAKOTA,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, 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 PETITIONERS

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

December 20, 2021

i

TABLE OF CONTENTS

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

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

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

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

I.

EPA Wrongly Arrogated to Itself Congress’s

Exclusive Power to Regulate Important

Subjects............................................................... 5

A. EPA Uses Section 111(d) to Transform the

Nation’s Electricity System .............................. 5

B. The Panel Majority Mistakenly Blessed EPA’s

Section 111(d) Power Grab. .............................. 9

II. Administrative Agencies Increasingly Attempt to

Stand in Congress’s Shoes .............................. 11

III. Under the Constitution, Important Subjects May

Only Be Regulated by Congress ..................... 12

A. The Separation of Legislative, Executive, and

Judicial Power Protects Liberty ..................... 12

B. Laws Restricting Liberty Must Be Enacted by

the People’s Representatives .......................... 16

C. The Constitution Bars Congress from

Transferring Its Legislative Power ................ 17

D. Line-Drawing Questions Should Not Deter

Enforcement of the Separation of Powers ..... 21

IV. This Court Should Jettison the “Intelligible

Principle” Test.................................................. 23

V. Common Objections to Enforcement of the

Separation of Powers Lack Merit ................... 26

Conclusion..……………………………………………...29

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .........................................11

Bond v. United States,

564 U.S. 211 (2011) .............................................13

Bowsher v. Synar,

478 U.S. 714 (1986) .............................................15

BST Holdings, L.L.C. v. OSHA,

No. 21-60845, 2021 U.S. App. LEXIS

33698 (5th Cir. Nov. 12, 2021) ...........................11

City of Arlington v. FCC,

569 U.S. 290 (2013) ...............................................4

Collins v. Yellen,

141 S. Ct. 1761 (2021) .........................................13

DOT v. Ass’n of Am. R.R.,

135 S. Ct. 1225 (2015) .......... 16, 17, 21, 22, 24, 25

Free Enterprise Fund v. Public Co.

Accounting Oversight Board,

561 U.S. 477 (2010) ...................................... 16, 28

Gundy v. United States,

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

iii

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ..........................16

Indus. Union Dep’t, AFL-CIO v. API,

448 U.S. 607 (1980) ...................................... 18, 23

INS v. Chadha,

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

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) .............................................23

King v. Burwell,

576 U.S. 473 (2015) .............................................16

Loving v. United States,

517 U.S. 748 (1996) .............................................15

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ..............................26

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) .............................................20

Massachusetts v. EPA

549 U.S. 497 (2007) .............................................23

Michigan v. EPA,

576 U.S. 743 (2015) ................................ 15, 24, 25

Mistretta v. United States,

488 U.S. 361 (1989) .............................................21

Morrison v. Olson,

487 U.S. 654 (1988) .................................. 9, 13, 26

iv

Paul v. United States,

140 S. Ct. 342 (2019) ...........................................18

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ........................................ 13, 14

Shankland v. Washington,

30 U.S. 390 (1831) ...............................................19

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) ....................... 12, 13

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ......................... passim

United States Forest Serv. v. Cowpasture

River Pres. Ass’n,

140 S. Ct. 1837 (2020) ...........................................9

United States v. Nichols,

784 F.3d 666 (10th Cir. 2015) ............................17

United States Telecomms. Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017)...............................6

Util. Air Regulatory Grp. V. EPA,

573 U.S. 302 (2014) .............................................10

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ............. 5, 18, 21, 22

West Virginia v. EPA,

136 S. Ct. 1000 (2016) ...........................................9

v

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ...................................... 11, 24

Constitution

U.S. Const., Preamble ....................................... 28, 29

U.S. Const., Art. I, § 1 ................................... 3, 15, 19

U.S. Const., Art. I, § 7, Cl. 2 ............................. 15, 17

U.S. Const. Art. II, § 3 ..............................................15

U.S. Const. Art. VI, Cl. 2 ............................................3

Statutes

42 U.S.C. § 7411(d) .....................................................5

Regulations

80 Fed. Reg. 64,662 (October 23, 2015) ................2, 7

84 Fed. Reg. 32,520 (July 8, 2019) ................... 2, 5, 6

Other Authorities

Abigail E. André, Biden Should Bet the

Farm, ABA (May 19, 2021),

https://www.americanbar.org/groups/env

ironment_energy_resources/publications/

aq/20210519-biden-should-bet-the-farm/ ............6

vi

Brett M. Kavanaugh,

Our Anchor for 225 Years and Counting:

The Enduring Significance of the Precise

Text of the Constitution,

89 Notre Dame L. Rev. 1907 (2014) ..... 14, 16, 17

David Schoenbrod,

Consent of the Governed: A

Constitutional Norm that the Courts

Should Substantially Enforce,

43 Harv. J.L. & Pub. Pol’y 213 (2020) .. 18, 19, 20

Declaration of Independence ............................ 13, 14

EPA, Inventory of U.S. Greenhouse Gas

Emissions & Sinks: 1990-2019

(Apr. 2021) .............................................................6

Gary Lawson,

Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002)....................................19

Gary Lawson,

Mr. Gorsuch, Meet Mr. Marshall: A

Private-Law Framework for the PublicLaw Puzzle of Subdelegation (May 2020),

https://ssrn.com/abstract=3607159 ............ 18, 28

Ilan Wurman,

Nondelegation at the Founding,

130 Yale L.J. 1490 (2021) ...................................20

vii

Jennifer Mascott,

Early Customs Laws and Delegation,

87 Geo. Wash. L. Rev. 1388 (2019) ....................28

Jesse M. Cross & Abbe R. Gluck,

The Congressional Bureaucracy,

168 U. Pa. L. Rev. 1541 (2020) ...........................27

John Locke,

Second Treatise of Government, § 141 ..............20

Joseph Postell,

“The People Surrender Nothing”: Social

Compact Theory, Republicanism, and the

Modern Administrative State,

81 Mo. L. Rev. 1003 (2016) .................................21

Larry Alexander & Saikrishna Prakash,

Reports of the Nondelegation Doctrine’s

Death Are Greatly Exaggerated,

70 U. Chi. L. Rev. 1297 (2003) .................... 20, 21

1 Montesquieu, The Spirit of Laws (Thomas

Nugent trans., 1914) .................................... 14, 15

Naomi Rao,

Administrative Collusion: How

Delegation Diminishes the Collective

Congress,

90 N.Y. U. L. Rev. 1463 (2015).............. 12, 25, 26

Philip Hamburger,

Is Administrative Law Unlawful? (2014)..........19

viii

Robin Bravender, 44 States Take Sides in

Expanding Legal Brawl,

Greenwire (November 4, 2015),

https://www.eenews.net/articles/44states-take-sides-in-expanding-legalbrawl/ .....................................................................7

Ronald Cass,

Delegation Reconsidered: A Delegation

Doctrine for the Modern Administrative

State,

40 Harv. J. L. & Pub. Pol’y 147 (2016) ..............19

Thomas J. Philbrick,

A Purple Garment for Their Nakedness:

Wilson, Hegel, and the Non-Delegation

Doctrine, 14 Alb. Gov’t L. Rev. 30 (2021) ..........25

The Federalist No. 47 ...............................................14

The Federalist No. 75 ...............................................21

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners.1

INTEREST OF AMICUS CURIAE

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

organization committed to educating and training

Americans to be courageous advocates for the ideas,

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

of those ideas is that the separation of powers and our

system of federalism protect liberty. As part of its

mission, AFPF appears as amicus curiae before

federal and state courts.

Here, AFPF writes to highlight the critical

separation of powers issues that underlie this case,

which presents a familiar question: which branch of

government is responsible for making public policy

and how? Under the Constitution, it is not this Court’s

role to set public policy. Nor is it the job of unelected

federal bureaucrats. Instead, the Constitution tasks

the democratically elected, politically accountable

branches—Congress and

the President—with

resolving important 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

SUMMARY OF ARGUMENT

This case is not about what constitutes sound

energy or environmental policy. Whether these

important subjects are best addressed by the policy

decisions reflected in EPA’s 2015 Clean Power Plan

(“CPP”), 80 Fed. Reg. 64,662 (October 23, 2015), 2019

Affordable Clean Energy (“ACE”) Rule, 84 Fed. Reg.

32,520 (July 8, 2019), or some other approach is beside

the point. It is not this Court’s role to choose between

competing visions for how these subjects should be

addressed.

Instead, this case is about which branch of

government, under the existing constitutional

structure, is entitled to make major policy decisions of

vast political and economic importance, like those at

issue here, and by what process. At the federal level,

the answer is Congress, through duly enacted

legislation, subject to constitutional constraints on

federal power. It is not for EPA to attempt to impose

its will on the nation through regulatory diktat. The

fundamental choice in vision between that reflected in

the CPP and the ACE Rule is for Congress to make.

“[W]hatever multi-billion-dollar regulatory power the

federal government might enjoy, it’s found on the open

floor of an accountable Congress, not in the

impenetrable halls of an administrative agency—even

if that agency is an overflowing font of good sense.”

JA.232 (Walker, J., concurring in part, dissenting in

part).

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,

memorialized in the Constitution. Our Constitution

3

exclusively tasks the People’s elected representatives

with answering major policy questions. And under the

Constitution, the political branches may only do so

through duly enacted legislation that survives

bicameralism and presentment, a deliberately

difficult process designed to ensure such laws reflect

broad political consensus.

This means Congress cannot duck its

responsibility for making hard choices requiring

compromise—hard choices that, yes, may well involve

some measure of political jeopardy—by passing the

buck to unelected, politically unaccountable

administrative agents. The Constitution flatly

prohibits Congress from delegating any of its

legislative power to other entities: “All legislative

Powers herein granted shall be vested in a Congress

of the United States[.]” U.S. Const. Art. I, § 1

(emphasis added). Congress, as the People’s faithful

agent, is expressly barred from divesting itself of

power the Constitution— “the supreme Law of the

Land,” U.S. Const. Art. VI, Cl. 2—exclusively vests in

it. Yet, Congress has increasingly sought to insulate

itself from accountability by purporting to delegate its

legislative power to various administrative bodies.

And as Congress has in this way shirked its own

constitutional responsibilities, those politically

unaccountable administrative bodies have filled the

resulting vacuum and taken up the policymaking role

Congress has abandoned.

This case implicates a particularly egregious

example of an agency seeking to wield legislative

powers. Congress did not—and, under our

Constitution, cannot—grant unelected administrative

officials at EPA legislative power to creatively

4

reimagine energy policy for the entire country, as EPA

sought to do with the 2015 CPP. And by all indications

EPA is poised to again use Section 111(d) as the

vehicle to “enact” transformative “legislative rules”

reimagining the electricity sector and many other

industries. Making matters worse, this troubling

trend of agencies taking upon themselves major policy

decisions of vast economic and political importance

that must be resolved by People’s elected

representatives in Congress is by no means limited to

EPA, extending to an alphabet soup of administrative

bodies. This should not be allowed to stand.

This Court should reaffirm the basic constitutional

principle that unelected, unaccountable bureaucrats

are not allowed to make important policy decisions

before it is too late to protect our constitutional

Republic and system of representative selfgovernment. For as the Chief Justice presciently

observed in 2013, “[i]t 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.” City of

Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts,

C.J., dissenting). And that danger is far worse today.

On the other side of the ledger, the sky will not fall

if this Court enforces the Constitution’s original

public meaning. Congress is perfectly capable of

addressing major policy challenges, as necessary—

even complicated ones, and on an expedited basis.

That is, after all, the job for which each individual

member of Congress purportedly signed up. The

People deserve the benefit of their bargain, as

memorialized in the Constitution.

5

ARGUMENT

I.

EPA WRONGLY ARROGATED TO ITSELF

CONGRESS’S EXCLUSIVE POWER TO REGULATE

IMPORTANT SUBJECTS.

A. EPA Uses Section 111(d) to Transform the

Nation’s Electricity System.

EPA’s CPP plainly sought to answer major policy

questions of vast economic and political significance

on “important subjects.” See Wayman v. Southard, 23

U.S. (10 Wheat.) 1, 43 (1825) (Marshall, C.J.). While

the CPP is now stale, the threat to our system of

separated powers that this type of agency overreach

poses is not. For the legal issues presented by the

decision below transcend any particular rule. And, in

any event, EPA has given every indication it will

attempt to use Section 111(d), 42 U.S.C. § 7411(d), as

a vehicle to “enact” similarly broad regulations with

“force of law” in the future. The procedural history of

this case, which traces its genesis to the CPP, puts the

stakes in context.

As EPA would later explain in the 2019 ACE Rule:

“At the time the CPP was promulgated, its

generation-shifting scheme was projected to have

billions of dollars of impact on regulated parties and

the economy, would have affected every electricity

customer (i.e., all Americans), was subject to litigation

involving almost every State . . . [and] would have

disturbed the state-federal and intra-federal

jurisdictional scheme.” JA.1770–1771. “Further

evidence” that the CPP purports to answer a major

policy question “comes from the notable absence of a

valid limiting principle to basing a CAA section 111

6

rule on generation shifting. . . . [B]y shifting focus to

the entire grid . . . , the Agency could empower itself

to order the wholesale restructuring of any industrial

sector[.]”2 JA.1771. By the CPP’s logic, for example,

EPA could use 111(d) to reimagine the agriculture

sector.3 These are all hallmarks of a major policy

decision the Constitution requires be made by the

People’s elected representatives. See also JA.228–229

(Walker, J., concurring in part, dissenting in part).

See generally United States Telecomms. Ass’n v. FCC,

855 F.3d 381, 422–23 (D.C. Cir. 2017) (Kavanaugh, J.,

dissenting from denial of rehearing en banc) (listing

generally relevant factors to major question inquiry).

First, the subject of the CPP was a matter of great

political interest and failed legislation. See JA.220–

221 (Walker, J., concurring in part, dissenting in

part). Tellingly, it was only after the Senate declined

to pass legislation that “President Obama ordered the

EPA to do what Congress wouldn’t.” JA.222 (Walker,

J., concurring in part, dissenting in part). The CPP’s

requirements were so politically divisive that twentyfour states—on the hook for about 80 percent of the

2 EPA itself has

identified a wide array of existing sources it

could target under Section 111(d). EPA, Inventory of U.S.

Greenhouse Gas Emissions & Sinks: 1990-2019, at 1-17 to 1-20

(Apr.

2021),

available

at

https://www.epa.gov/sites/default/files/2021-04/documents/usghg-inventory-2021-maintext.pdf?VersionId=yu89kg1O2qP754CdR8Qmyn4RRWc5iodZ.

3 That concern is not abstract. See also Abigail E. André, Biden

Should

Bet

the

Farm,

ABA

(May

19,

2021),

https://www.americanbar.org/groups/environment_energy_reso

urces/publications/aq/20210519-biden-should-bet-the-farm/.

7

reductions required under the plan—challenged the

rule; another sixteen states intervened in support of

it.4 Indeed, the House and Senate adopted a joint

resolution disapproving of the CPP. See Br. of 34

Senators and 171 Representatives as Amici Curiae in

Support of Petitioners, West Virginia et al. v. EPA et

al., No. 15-1363, at 22–23 (D.C. Cir., filed Feb. 23,

2016).

Underscoring the political importance of the CPP,

EPA itself said it “confirms the international

leadership of the U.S. in the global effort to address

climate change,” JA.283, adding that it “constitutes a

major commitment—and international leadership-bydoing—on the part of the U.S.,” JA.345. Accord White

House Fact Sheet (“[A]s we have seen, the Clean

Power Plan is changing the international dynamic

and leveraging international action—showing that

when the U.S. leads, other nations follow.”).5

Reflecting this reality, EPA claimed in the ensuing

litigation that the CPP “addresses the Nation’s most

important and urgent environmental challenge,”

describing it as “critically important.” See EPA

Consolidated Response Brief, West Virginia et al. v.

EPA et al.¸ No. 15-1363, 1, 25 (D.C. Cir., filed March

28, 2016). The then-President went even farther,

“call[ing] it ‘the single most important step America

4 See Robin Bravender, 44 States Take Sides in Expanding Legal

Brawl,

Greenwire

(November

4,

2015),

https://www.eenews.net/articles/44-states-take-sides-inexpanding-legal-brawl/. After EPA reversed course, a different

faction of states challenged the ACE rule. See JA.95–96.

5https://ago.wv.gov/publicresources/epa/Documents/StatePetrsA

ddendum2.pdf#page=4

8

has ever taken in the fight against global climate

change.’” JA.227 (Walker, J., concurring in part,

dissenting in part) (citation omitted).

Second, the CPP was undeniably of vast economic

significance. As Judge Walker explained:

The potential costs and benefits of the

2015 Rule are almost unfathomable.

Industry analysts expected wholesale

electricity’s cost to rise by $214 billion.

The cost to replace shuttered capacity?

Another $64 billion. . . . The EPA itself

predicted its rule would cost billions of

dollars and eliminate thousands of jobs.

JA.226 (Walker, J., concurring in part, dissenting in

part) (citations omitted). In short, it was “arguably

one of the most consequential rules ever proposed by

an administrative agency[.]” JA.225 (Walker, J.,

concurring in part, dissenting in part). The reality is

that the CPP would have fundamentally altered the

way of life for many communities; caused substantial

financial hardship and stress to many thousands of

families impacted by job losses it caused; increased

the price of electricity for all Americans, regardless of

ability to pay; and potentially impacted grid

reliability, to boot.

Third, the CPP was, at the least, in serious tension

with federalism principles, as in order to implement

the CPP’s dictates, states would have been required to

dedicate state personnel and other resources and even

enact legislation to comply. See State Petitioners’ Stay

Motion, West Virginia et al. v. EPA et al., No. 15-1363,

9

at 16 (D.C. Cir., filed Oct. 23, 2015).6 But cf. United

States Forest Serv. v. Cowpasture River Pres. Ass’n,

140 S. Ct. 1837, 1849–50 (2020) (“Our precedents

require Congress to enact exceedingly clear language

if it wishes to significantly alter the balance between

federal and state power and the power of the

Government over private property.”). The draconian

burdens that compliance with the CPP would have

imposed on the states are difficult to overstate.7

Underscoring the significance of the CPP’s

sweeping

diktat,

this

Court

stayed

its

implementation. See West Virginia v. EPA, 136 S. Ct.

1000 (2016). See also JA.223–224 (Walker, J.,

concurring in part, dissenting in part) (noting this

Court’s “unprecedented intervention” to stay the

CPP). By any definition, the CPP was a major rule

beyond EPA’s lawful powers. Put another way, “this

wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654,

699 (1988) (Scalia, J., dissenting).

B. The Panel Majority Mistakenly Blessed

EPA’s Section 111(d) Power Grab.

Nonetheless, the panel majority mistakenly found

Section 111(d) requires EPA to consider generation

shifting, see JA.108, 143 n.9, 151–153, which would,

6https://ago.wv.gov/publicresources/epa/Documents/StatePetrsM

otionForStay.pdf.

In the stay litigation, numerous state officials executed

declarations discussing the real-world impact of the CPP. These

declarations

are

available

at

https://ago.wv.gov/publicresources/epa/Documents/StatePetrsAd

dendum2.pdf (Exhibit C).

7

10

by implication, grant EPA the power to unilaterally

restructure the entire electricity sector (and other

industries) as it deems fit.8 See also JA.135–155. That

cannot be right.

One of two propositions holds true: The first

possibility is, contrary to the panel majority, the

statute does not delegate to EPA the power to “enact”

transformative “legislative rules” of sweeping

importance. See JA.230 (Walker, J., concurring in

part, dissenting in part) (“Either a statute clearly

endorses a major rule, or there can be no major rule.”).

See also Util. Air Regulatory Grp. v. EPA, 573 U.S.

302, 324 (2014) (“We expect Congress to speak clearly

if it wishes to assign to an agency decisions of vast

economic and political significance.” (cleaned up)). Cf.

Tiger Lily, LLC v. HUD, 5 F.4th 666, 672 (6th Cir.

2021) (“[T]o put ‘extra icing on a cake already frosted,’

the government’s interpretation of § 264(a) could raise

a nondelegation problem.” (citation omitted)). The

second possibility is that the statute itself is an

unconstitutional delegation of Congress’s legislative

powers. See also JA.230 (Walker, J., concurring in

part, dissenting in part) (“[I]f Congress merely

allowed generation shifting (it didn’t), but did not

clearly require it, I doubt doing so was

8 The panel majority construed Section 111 to authorize limitless

power for EPA to restructure major sectors of the national

economy. See, e.g., JA.108 (“Congress imposed no limits on the

types of measures the EPA may consider beyond three additional

criteria: cost, any nonair quality health and environmental

impacts, and energy requirements.”).

11

constitutional.”).9 Either way, the decision below

should not stand.

II.

ADMINISTRATIVE AGENCIES INCREASINGLY

ATTEMPT TO STAND IN CONGRESS’S SHOES.

More broadly, the CPP is not an isolated instance

of unelected bureaucrats purporting to stand in

Congress’s shoes; it is a symptom of a broader

constitutional problem. Consider the CDC’s

constitutionally dubious foray into reimagining

landlord-tenant law by regulatory fiat. See Ala. Ass’n

of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021)

(rejecting CDC’s “unprecedented” “claim of expansive

authority”). See also Tiger Lily, 5 F.4th at 675

(Thapar, J., concurring) (“While landlords and

tenants likely disagree on much, there is one thing

both deserve: for their problems to be resolved by their

elected representatives.”). Or OSHA’s recent attempt

to impose a national vaccine mandate. See BST

Holdings, L.L.C. v. OSHA, No. 21-60845, 2021 U.S.

App. LEXIS 33698, at *23 (5th Cir. Nov. 12, 2021)

(“The Mandate derives its authority from an old

statute employed in a novel manner, . . . and purports

to definitively resolve one of today’s most hotly

debated political issues.”).

9 If

so, any effort by EPA to save the statute by proposing a

limiting construction or promising to behave responsibly should

be rejected out of hand. See Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 472 (2001) (“We have never suggested that an agency

can cure an unlawful delegation of legislative power by adopting

in its discretion a limiting construction of the statute.”).

12

These are but two examples of a broader trend in

recent years of federal agencies wresting from the

People’s elected representatives the power to make

major policy choices among competing societal visions

in politically divisive contexts. This is far from

constitutionally healthy. As Judge Ho explained: “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.” See Texas v. Rettig, 993 F.3d 408, 409 (5th

Cir. 2021) (Ho, J., dissenting from denial of rehearing

en banc). And as now-Judge Rao has observed:

“Developments in the modern administrative state

suggest the time has come to articulate judicially

manageable standards for identifying delegations of

legislative power. The reasons for judicial restraint in

this area have largely collapsed and the costs of

judicial toleration of such delegations have grown

unacceptably high.” Naomi Rao, Administrative

Collusion: How Delegation Diminishes the Collective

Congress, 90 N.Y. U. L. Rev. 1463, 1508 (2015). That

resonates here and counsels in favor of enforcing the

Constitution’s separation of powers.

III.

UNDER THE CONSTITUTION, IMPORTANT

SUBJECTS MAY ONLY BE REGULATED BY

CONGRESS.

A. The Separation of Legislative, Executive,

and Judicial Power Protects Liberty.

“Our founding document begins by declaring that

‘We the People . . . ordain and establish this

13

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.”

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

(Gorsuch, J., dissenting). Accord Declaration of

Independence ¶ 2 (explaining “[t]hat to secure these

[unalienable] rights” such as “Life, Liberty and the

pursuit of Happiness” “Governments are instituted

among Men, deriving their just powers from the

consent of the governed”). In that document, the

People agreed to be governed under a system of

separated powers and checks and balances.

“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). “The purpose of the separation and

equilibration of powers in general . . . [is] not merely

to assure effective government but to preserve

individual freedom.” Morrison, 487 U.S. at 727

(Scalia, J., dissenting). See Collins v. Yellen, 141 S. Ct.

1761, 1780 (2021) (“[T]he separation of powers is

designed to preserve the liberty of all the people.”).

This separation “might seem inconvenient and

inefficient to those who wish to maximize

government’s coercive power.” See Rettig, 993 F.3d at

409 (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

14

individual liberty in the new Constitution.” 10 Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 118 (2015)

(Thomas, J., concurring in the judgment). “The choices

. . . made in the Constitutional Convention impose

burdens on governmental processes that often seem

clumsy, inefficient, even unworkable, but those hard

choices were consciously made by men who had lived

under a form of government that permitted arbitrary

governmental acts to go unchecked.” INS v. Chadha,

462 U.S. 919, 959 (1983). See Declaration of

Independence ¶¶ 11–12.

“The primary protection of individual liberty in our

constitutional system comes from . . . the separation

of the power to legislate from the power to enforce

from the power to adjudicate.” Brett M. Kavanaugh,

Our Anchor for 225 Years and Counting: The

Enduring Significance of the Precise Text of the

Constitution, 89 Notre Dame L. Rev. 1907, 1915

(2014).11 For as James Madison famously wrote, “[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. See 1 Montesquieu, The Spirit of

10 “The Constitution’s particular blend of separated powers and

checks and balances was informed by centuries of political

thought and experiences.” Perez, 575 U.S. at 116 (Thomas, J.,

concurring in judgment).

11 “In its design and structure, the Constitution is tilted in the

direction of liberty.” Kavanaugh, 89 Notre Dame L. Rev. at 1911.

“[T]he liberty protected by the separation of powers in the

Constitution is primarily freedom from government

oppression[.]” Id. at 1909.

15

Laws bk. 11, ch. 6, at 163 (Thomas Nugent trans.,

1914) (“When the legislative and executive powers are

united in the same person, or in the same body of

magistrates, there can be no liberty; because

apprehensions may arise, lest the same monarch or

senate should enact tyrannical laws, to execute them

in a tyrannical manner.”).

To guard against tyranny and protect liberty, “the

Constitution . . . vest[s] the authority to exercise

different aspects of the people’s sovereign power in

distinct entities.” 12 Gundy, 139 S. Ct. at 2133

(Gorsuch, J., dissenting). Subject to bicameralism and

presentment, U.S. Const. Art. I, § 7, Cl. 2, Article I of

the Constitution vests “[a]ll legislative Powers herein

granted” in Congress, U.S. Const. Art. I, § 1—not the

Executive branch. 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. 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[.]” Michigan v.

EPA, 576 U.S. 743, 762 (2015) (Thomas, J.,

concurring). “That is the equilibrium the Constitution

demands. And when one branch impermissibly

“That this system of division and separation of powers

produces conflicts, confusion, and discordance at times is

inherent, but it was deliberately so structured to assure full,

vigorous, and open debate on the great issues affecting the

people[.]” Bowsher v. Synar, 478 U.S. 714, 722 (1986).

12

16

delegates its powers to another, that balance is

broken.” Tiger Lily, 5 F.4th at 673 (Thapar, J.,

concurring). “The allocation of powers . . . is

absolute[.]” DOT v. Ass’n of Am. R.R., 575 U.S. 43, 69

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

B. Laws Restricting Liberty Must Be

Enacted by the People’s Representatives.

“Our Constitution was adopted to enable the

people to govern themselves, through their elected

leaders.” Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477, 499 (2010). See also King

v. Burwell, 576 U.S. 473, 498 (2015) (“In a democracy,

the power to make the law rests with those chosen by

the people.”). “[B]y careful design, [it] prescribes a

process for making law, and within that process there

are many accountability checkpoints.” Ass’n of Am.

R.R., 575 U.S. at 61 (Alito, J., concurring). For good

reason: “[B]y directing that legislating be done only by

elected representatives in a public process, the

Constitution sought to ensure that the lines of

accountability would be clear: The sovereign people

would know, without ambiguity, whom to hold

accountable for the laws they would have to follow.”

Gundy, 139 S. Ct. at 2134 (Gorsuch, J., dissenting).

“Admittedly, the legislative process can be an

arduous one. But that’s no bug in the constitutional

design: it is the very point of the design.” GutierrezBrizuela v. Lynch, 834 F.3d 1142, 1151 (10th Cir.

2016) (Gorsuch, J., concurring). “In order to protect

individual liberty and guard against the whim of

majority rule, the Framers . . . made it very difficult

17

to enact laws.”13 Kavanaugh, 89 Notre Dame L. Rev.

at 1909. By design, “the Framers required the

concurrence of three separate entities to enact

legislation: the House, the Senate, and the President.”

Id. at 1910. See U.S. Const. Art. I, § 7, Cl. 2. “These

structural impediments to lawmaking were . . . a

deliberate and jealous effort to preserve room for

individual liberty.” United States v. Nichols, 784 F.3d

666, 670 (10th Cir. 2015) (Gorsuch, J., dissenting from

denial of rehearing en banc). As Judge Walker

explained below: “This legislative gauntlet sometimes

produces unfortunate, even tragic, consequences. . . .

That, however, is the price we pay for bicameralism

and presentment. Major regulations and reforms

either reflect a broad political consensus, or they do

not become law.” JA.219 (Walker, J., concurring in

part, dissenting in part).

C. The Constitution Bars Congress from

Transferring Its Legislative Power.

Nor may Congress duck the Constitution’s

accountability checkpoints by divesting itself of its

legislative responsibilities.14 As Chief Justice

13 “At the heart of th[e] liberty” the Framers sought to protect

“were the Lockean private rights: life, liberty, and property. If a

person could be deprived of these private rights on the basis of a

rule (or a will) not enacted by the legislature, then he was not

truly free.” Ass’n of Am. R.R., 575 U.S. at 75–76 (Thomas, J.,

concurring in judgment).

14 “The principle that Congress cannot delegate away its vested

powers exists to protect liberty.” Ass’n of Am. R.R., 575 U.S. at

61 (Alito, J., concurring).

18

Marshall observed: “It will not be contended that

Congress can delegate . . . powers which are strictly

and exclusively legislative.” Wayman, 23 U.S. (10

Wheat.) at 42. Instead, the Constitution requires

“important subjects . . . must be entirely regulated by

the legislature itself[.]” Id. at 43. See also Paul v.

United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh,

J., statement respecting denial of certiorari). In other

words, “important choices of social policy” must be

“made by Congress, the branch of our Government

most responsive to the popular will.” Indus. Union

Dep’t, AFL-CIO v. API, 448 U.S. 607, 685 (1980)

(Rehnquist, J., concurring in judgment). “It is the

hard choices, and not the filling in of the blanks, which

must be made by the elected representatives of the

people.” Id. at 687 (Rehnquist, J., concurring in

judgment).

As Professor Gary Lawson has observed, “[t]he

Constitution’s grants of power to Congress in Article I

(and in Articles IV and V as well) are, in form, the

written record of a delegation of authority from a

principal, ‘We the People,’ to an agent, ‘a Congress of

the United States.’” Gary Lawson, Mr. Gorsuch, Meet

Mr. Marshall: A Private-Law Framework for the

Public-Law Puzzle of Subdelegation, 13 (May 2020)

[hereinafter “Mr. Gorsuch, Meet Mr. Marshall”].15 Cf.

David Schoenbrod, Consent of the Governed: A

Constitutional Norm that the Courts Should

Substantially Enforce, 43 Harv. J.L. & Pub. Pol’y 213,

Available

at

https://ssrn.com/abstract=3607159

http://dx.doi.org/10.2139/ssrn.3607159.

15

or

19

219–224 (2020) (detailing consent-of-governed norm).

Accordingly, Congress cannot delegate its legislative

power to other entities: Delegatus non potest delegare.

See also Shankland v. Washington, 30 U.S. 390, 395

(1831) (Story, J.) (“[T]he general rule of law is, that a

delegated authority cannot be delegated.”).

To the contrary, the Constitution specifically bars

Congress from doing so, vesting all legislative power

in Congress alone. U.S. Const. Art. I, § 1. See also

Philip Hamburger, Is Administrative Law Unlawful?

388 (2014) (“Americans clearly understood how to

write constitutions that expressly permitted the

subdelegation of legislative power to the executive,

and they did not do this in the federal constitution.”).

Indeed, “[i]f Congress could pass off its legislative

power to the executive branch, the ‘[v]esting [c]lauses,

and indeed the entire structure of the Constitution,’

would ‘make no sense.’” 16 Gundy, 139 S. Ct. at 2134–

35 (Gorsuch, J., dissenting) (quoting Gary Lawson,

Delegation and Original Meaning, 88 Va. L. Rev. 327,

340 (2002)).

“[I]t would frustrate ‘the system of government

ordained by the Constitution’ if Congress could merely

announce vague aspirations and then assign others

the responsibility of adopting legislation to realize its

16 “From the standpoint of constitutional design, the critical point

is that redistribution of authority from one entity to another . . .

is at odds with the inclusion of specific procedures for each

branch’s and officer’s functions.” Ronald Cass, Delegation

Reconsidered: A Delegation Doctrine for the Modern

Administrative State, 40 Harv. J. L. & Pub. Pol’y 147, 155 (2016).

20

goals.” Gundy, 139 S. Ct. at 2133 (Gorsuch, J.,

dissenting) (quoting Marshall Field & Co. v. Clark,

143 U.S. 649, 692 (1892) (Harlan, J.)). See also

Schoenbrod, 43 Harv. J.L. & Pub. Pol’y at 222

(“Stating goals [in legislation] is insufficient because

Congress can state goals yet avoid responsibility to

the governed for how the agency resolves major

political controversies[.]”). For “[b]y shifting

responsibility to a less accountable branch, Congress

protects itself from political censure—and deprives

the people of the say the framers intended them to

have.” Tiger Lily, 5 F.4th at 674 (Thapar, J.,

concurring).

Indeed, if Congress could delegate its legislative

duties to other entities it would breach the social

compact on which our Constitution rests. “The

nondelegation principle can be traced to John Locke’s

Second Treatise, which was deeply influential on the

Founding generation.” Ilan Wurman, Nondelegation

at the Founding, 130 Yale L.J. 1490, 1518 (2021). See

Gundy, 139 S. Ct. at 2133 (Gorsuch, J., dissenting). As

John Locke explained: “[W]hen the people have said,

We will submit to rules, and be governed by laws

made by such men, and in such forms, no body else

can say other men shall make laws for them[.]” John

Locke, Second Treatise of Government, §141. This

means that “the legislative can have no power to

transfer their authority of making laws, and place it

in other hands.” Id. Thus, “when the legislature

attempts to delegate lawmaking authority to a third

party, the third party’s rules are nullities because the

third party was not chosen by the people to exercise

the legislative power, and the people (according to

Locke) never authorized a further delegation of

21

legislative power to others.”17 Larry Alexander &

Saikrishna Prakash, Reports of the Nondelegation

Doctrine’s Death Are Greatly Exaggerated, 70 U. Chi.

L. Rev. 1297, 1322 (2003).

D. Line-Drawing Questions Should Not Deter

Enforcement of the Separation of Powers.

As discussed above, “[s]trictly speaking, there is

no acceptable delegation of legislative power.”

Mistretta v. United States, 488 U.S. 361, 419–20

(1989) (Scalia, J., dissenting) (emphasis in original).18

This raises the question what is “legislative power”

that Congress may not delegate. To be sure, as Chief

Justice Marshall observed: “The line has not been

exactly drawn which separates those important

subjects, which must be entirely regulated by the

legislature itself, from those of less interest, in which

a general provision may be made, and power given to

17 Indeed, some have argued that the nonsubdelegation doctrine

is grounded in the social compact and republicanism. See Joseph

Postell, “The People Surrender Nothing”: Social Compact Theory,

Republicanism, and the Modern Administrative State, 81 Mo. L.

Rev. 1003, 1012 (2016).

18 “When it came to the legislative power, the framers understood

it to mean the power to adopt generally applicable rules of

conduct governing future actions by private persons[.]” Gundy,

139 S. Ct. at 2133 (Gorsuch, J., dissenting). See Federalist No. 75

(“The essence of the legislative authority is to enact laws, or, in

other words, to prescribe rules for the regulation of the

society[.]”). “[T]he core of the legislative power that the Framers

sought to protect from consolidation with the executive is the

power to make ‘law’ in the Blackstonian sense of generally

applicable rules of private conduct.” Ass’n of Am. R.R., 575 U.S.

at 76 (Thomas, J., concurring in the judgment).

22

those who are to act under such general provisions to

fill up the details.” Wayman, 23 U.S. (10 Wheat.) at

43. “But the inherent difficulty of line-drawing is no

excuse for not enforcing the Constitution.” Ass’n of

Am. R.R., 575 U.S. at 61 (Alito, J., concurring). See id.

at 86 (Thomas, J., concurring) (“It may never be

possible perfectly to distinguish between legislative

and executive power, but that does not mean we may

look the other way when the Government asks us to

apply a legally binding rule that is not enacted by

Congress pursuant to Article I.”).

Whatever the precise line between the exercise of

executive and legislative power might be, what is

clear is that EPA’s CPP crossed the Rubicon. 19 Under

the Constitution, “important subjects . . . must be

entirely regulated by the legislature itself[.]”

Wayman, 23 U.S. (10 Wheat.) at 43. And whatever

else one might say about EPA’s efforts to restructure

the entire electricity sector (and potentially other

industries) under the banner of addressing a global

environmental issue, these are plainly important

subjects that Congress alone may address.

19 As

Judge Walker observed, “[t]his case touches on some of

administrative law’s most consequential, unresolved issues,”

including “[w]hat are the limits of congressional delegation?”

JA.253–254 (Walker, J., concurring in part, dissenting in part).

That is a hard question, put mildly, on which much ink has been

spilled. AFPF does not presume to know the precise line or offer

an answer. AFPF respectfully submits, however, that this Court

should carefully study and address this important question.

23

IV.

THIS COURT SHOULD JETTISON

“INTELLIGIBLE PRINCIPLE” TEST.

THE

“If” this Court is “ever to reshoulder the burden of

ensuring that Congress itself make the critical policy

decisions,” Indus. Union Dep’t, AFL-CIO, 448 U.S. at

687 (Rehnquist, C.J., concurring in judgment), this

case provides an ideal opportunity to do so. ThenChief Justice Rehnquist explained forty years ago,

fittingly in the context of the OSH Act: “It is difficult

to imagine a more obvious example of Congress simply

avoiding a choice which was both fundamental for

purposes of the statute and yet politically so divisive

that the necessary decision or compromise was

difficult, if not impossible, to hammer out in the

legislative forge.” Id. (Rehnquist, J., concurring in

judgment). That resonates here. See JA.220–221

(Walker, J., concurring in part, dissenting in part). Cf.

Massachusetts v. EPA, 549 U.S. 497, 535 (2007)

(Roberts, C.J., dissenting) (“Global warming . . . is not

a problem . . . that has escaped the attention of

policymakers in the Executive and Legislative

Branches[.]”).

This Court should make clear that “th[e] mutated

version of the ‘intelligible principle’ remark” in J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394

(1928), that forms the basis of the toothless

“intelligible principle” test “has no basis in the

original meaning of the Constitution, in history, or

24

even in the decision from which it was plucked.” 20

Gundy, 139 S. Ct. at 2139 (Gorsuch, J., dissenting).

After all, “[a]lthough this Court since 1928 has treated

the ‘intelligible principle’ requirement as the only

constitutional limit on congressional grants of power

to administrative agencies, the Constitution does not

speak of ‘intelligible principles.’ Rather, it speaks in

much simpler terms: ‘All legislative Powers herein

granted shall be vested in a Congress.’” 21 Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 487 (2001)

(Thomas, J., concurring) (citations omitted).

Under the judicially created “intelligible principle”

regime, this Court “ha[s] overseen and sanctioned the

growth of an administrative system that concentrates

the power to make laws and the power to enforce them

in the hands of a vast and unaccountable

administrative apparatus that finds no comfortable

home in our constitutional structure.” Ass’n of Am.

R.R., 575 U.S. at 91 (Thomas, J., concurring in

judgment). “[G]iv[ing] the ‘force of law’ to agency

pronouncements on matters of private conduct as to

20 “[T]he ‘intelligible principle’ remark eventually began to take

on a life of its own. . . . [The Court] sometimes chide[s] people for

treating judicial opinions as if they were statutes, divorcing a

passing comment from its context, ignoring all that came before

and after, and treating an isolated phrase as if it were

controlling. But that seems to be exactly what happened here.”

Gundy, 139 S. Ct. at 2139 (Gorsuch, J., dissenting).

21 “Much of the upheaval in . . . [the Court’s] delegation

jurisprudence occurred during the Progressive Era, a time

marked by an increased faith in the technical expertise of

agencies and a commensurate cynicism about principles of

popular sovereignty.” Ass’n of Am. R.R., 575 U.S. at 84 n.8

(Thomas, J., concurring in judgment).

25

which Congress did not actually have an intent, . . .

permit[s] a body other than Congress to perform a

function that requires an exercise of the legislative

power.” Michigan v. EPA, 576 U.S. at 762 (Thomas, J.,

concurring in judgment) (cleaned up)).

This troubling trend is not constitutionally

harmless. As Justice Thomas has observed: “The end

result may be trains that run on time (although I

doubt it), but the cost is to our Constitution and the

individual liberty it protects.” Ass’n of Am. R.R., 575

U.S. at 91 (Thomas, J., concurring in judgment).

“Delegations have weakened accountable government

in both political branches, allowing agencies to

initiate policy and congressmen to serve as shadow

administrators. This brings things too far out of

alignment with the vesting of legislative and

executive powers in separate branches.” Rao, 90 N.Y.

U. L. Rev. at 1526. “Delegation . . . drives a wedge

between the personal interests of legislators and the

institutional interests of Congress, undermining the

collective legislative process established to promote

the public good.” Id. at 1477. “Along with its role in

neutering Congress, delegation also contributes to . . .

political polarization[.]” Thomas J. Philbrick, A Purple

Garment for Their Nakedness: Wilson, Hegel, and the

Non-Delegation Doctrine, 14 Alb. Gov’t L. Rev. 30, 63

(2020).

This should not be allowed to stand. The time has

come for this Court “to enforce the separation of

powers required by our Constitution.” Ass’n of Am.

R.R., 575 U.S. at 91 (Thomas, J., concurring in

judgment). That means “respecting the people’s

sovereign choice to vest the legislative power in

Congress alone” and “safeguarding a [constitutional

26

structure designed to protect their liberties, minority

rights, fair notice, and the rule of law.” Gundy, 139 S.

Ct. at 2135 (Gorsuch, J., dissenting). See also

Morrison, 487 U.S. at 710 (Scalia, J., dissenting)

(“While the separation of powers may prevent us from

righting every wrong, it does so in order to ensure that

we do not lose liberty.”). After all, as Chief Justice

Marshall wrote: “To what purpose are powers limited,

and to what purpose is that limitation committed to

writing, if these limits may, at any time, be passed by

those intended to be restrained?” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (Marshall,

C.J.). And “[t]o leave this aspect of the constitutional

structure alone undefended would serve only to

accelerate the flight of power from the legislative to

the executive branch, turning the latter into a vortex

of authority that was constitutionally reserved for the

people’s representatives in order to protect their

liberties.” Gundy, 139 S. Ct. at 2142 (Gorsuch, J.,

dissenting). See also Rao, 90 N.Y. U. L. Rev. at 1516.

V.

COMMON OBJECTIONS TO ENFORCEMENT OF

THE SEPARATION OF POWERS LACK MERIT.

The sky will not fall if this Court enforces the

Constitution’s bar against delegation of Congress’s

legislative power. As Judge Thapar has suggested, the

strawman arguments commonly advanced by

proponents of the administrative state lack merit:

[O]ne common critique stands in the

way: Congress simply isn’t up to the job.

According to some, Congress is incapable

of acting quickly in response to

emergencies. Others say modern society

is too complex to be run by legislators—

27

better to leave it to the agency

bureaucrats. In light of the original

meaning, history, and structure of our

Constitution, these arguments should

not carry any weight. But even on their

own terms, neither argument washes.

Tiger Lily, 5 F.4th at 674 (Thapar, J., concurring).

As to the first objection, Judge Thapar counters:

“The government’s response to the coronavirus

pandemic proves otherwise. Congress acted swiftly to

pass broad relief for the general public. But it also

switched out the hammer for the scalpel when

necessary.” Id. (Thapar, J., concurring). As to the

second: “The contention that Congress lacks the

expertise to legislate on complicated topics appears

similarly attractive at first glance. But the executive

branch need not have a monopoly on experts. . . .

[Congress] has experts of its own.” Id. at 675 (Thapar,

J., concurring). See Jesse M. Cross & Abbe R. Gluck,

The Congressional Bureaucracy, 168 U. Pa. L. Rev.

1541, 1544 (2020). Cf. Gundy, 139 S. Ct. at 2145

(Gorsuch, J., dissenting) (“Congress can also

commission agencies or other experts to study and

recommend legislative language.”). Neither objection

should stand in the way of enforcing the separation of

powers required by the Constitution.

One might ask what difference does it make? The

answer: “Executive-branch experts make regulations;

congressional experts make recommendations.

Congressional bureaucracy leaves the law-making

power with the people’s representatives—right where

28

the Founders put it.”22 Id. (Thapar, J., concurring).

After all, “[o]ne can have a government that functions

without being ruled by functionaries, and a

government that benefits from expertise without

being ruled by experts.” Free Enter. Fund., 561 U.S. at

499. “Nor would enforcing the Constitution’s demands

spell doom for what some call the ‘administrative

state.’ The separation of powers does not prohibit any

particular policy outcome[.]”23 Gundy, 139 S. Ct. at

2145 (Gorsuch, J., dissenting).

The separation of powers demands that major

policy problems must be addressed by the People’s

elected representatives in Congress through the

deliberately difficult legislative process, so that any

federal law restricting the People’s liberty, or

imposing obligations upon them, necessarily reflects

broad political consensus, subject to limits on

Congress’s

enumerated

powers

and

other

constitutional constraints on federal power. That is

not a bad thing. Indeed, this process is a core feature

of our constitutional Republic, designed to “secure the

“The members of the First Congress shared a significantly

different expectation of their role than contemporary legislators.

They turned to the executive branch for information and to

receive recommendations. But members of Congress viewed

themselves as the actors responsible for reaching finely grained

policy determinations that would impact and bind the public.”

Jennifer Mascott, Early Customs Laws and Delegation, 87 Geo.

Wash. L. Rev. 1388, 1449 (2019).

23 In any event, to the extent there are practical concerns with

enforcing the Constitution’s bar against subdelegation of

legislative power, prudential limiting principles may exist. See,

e.g., Mr. Gorsuch, Meet Mr. Marshall, supra, at 28–29, 40–45.

22

29

Blessings of Liberty to ourselves and our posterity[.]”

U.S. Const., Preamble.

CONCLUSION

For the foregoing reasons, this Court should

protect our constitutional Republic by enforcing the

separation of powers and reversing the judgment of

the court of appeals.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

December 20, 2021