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

No. 20-1530

IN THE

Supreme Court of the United States

————

STATE OF WEST VIRGINIA, ET AL.,

v.

Petitioners,

U.S. 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 AMICI CURIAE DOCTORS FOR

DISASTER PREPAREDNESS AND EAGLE

FORUM EDUCATION & LEGAL DEFENSE

FUND IN SUPPORT OF PETITIONERS

————

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

December 20, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

QUESTION PRESENTED

In 42 U.S.C. § 7411(d), an ancillary provision of

the Clean Air Act, did Congress constitutionally

authorize the Environmental Protection Agency to

issue significant rules – including those capable of

reshaping the nation’s electricity grids and

unilaterally decarbonizing virtually any sector of

the economy – without any limits on what the

agency can require so long as it considers cost,

nonair impacts, and energy requirements?

ii

TABLE OF CONTENTS

Pages

Question Presented................................................ i

Table of Contents ................................................. ii

Table of Authorities ............................................ iii

Interests of Amici Curiae ..................................... 1

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

Argument .............................................................. 4

I. A Political Faction – Advocates of Strict

Government Controls on Energy – Should Not

Be Allowed to Circumvent Congress and the

Constitution .......................................................... 4

II. The Intelligible Principles Test Does Not

Apply Because Subsection 7411(d) Is

Unconstitutional ................................................... 8

A. Considering Subsection 7411(d)

Contains Vague and Imprecise Terms, the

Due Process Clause Is Violated. ................... 12

B. Because Subsection 7411(d) Authorizes

EPA Actions Which Supplant Legislation,

the Bicameral and Presentment Clauses

Are Violated ................................................... 15

III. Congress May Not Cede Legislative Power

to Another Branch or Entity ............................. 17

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

iii

TABLE OF AUTHORITIES

Pages

Cases

American Power & Light Co. v. S.E.C., 329

U.S. 90 (1946) .................................................... 8

Bowen v. Georgetown University Hospital,

488 U.S. 204 (1988) ........................................ 14

Brown v. Board of Education,

347 U.S. 483 (1954) ......................................... 10

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) ....................... 10, 11, 12, 13

City of Arlington v. FCC, 569 U.S. 290 (2013) ... 13

Clinton v. City of New York,

524 U.S. 417 (1998) ......................................... 17

Department of Transportation v. Association

of American Railroads,

575 U.S. 43 (2015) .................................... 18, 19

Dusenbery v. United States,

534 U.S. 161 (2002)......................................... 13

Forshey v. Principi, 284 F.3d 1335 (Fed. Cir.)

(en banc), cert. denied, 537 U.S. 823 (2002) ..... 9

Freytag v. Commissioner, 501 U.S. 868 (1991) .. 17

Guarantee Mut. Life Ins. Co. v. Harrison,

Tex. Civ. App., 358 S.W. 2d 404 (1962) .......... 15

Immigration and Naturalization Service v.

Chadha, 462 U.S. 919 (1983) ................. passim

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

276 U.S. 394 (1928). ........................................ 18

iv

Kamen v. Kemper Financial Services, Inc.,

500 U.S. 90 (1991) ............................................. 9

Kendall v United States ex rel. Stokes, 12 Pet.

(37 U.S.) 524 (1838).................................... 14-15

Loving v. United States, 517 U.S. 748 (1996) .... 18

Marbury v. Madison, 5 U.S. 137 (1803) ............. 10

McCulloch v. Maryland,

17 U.S. 316 (1819) ........................................... 12

Metropolitan Washington Airports Authority

v. Citizens for the Abatement of Aircraft

Noise, Inc., 501 U.S. 252 (1991) ...................... 17

Mistretta v United States, 488 U.S. 361

(1989) ................................................................. 8

Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306 (1950) .................................. 13

Muskrat v. United States, 219 U.S. 346 (1911) ... 5

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

U.S. 519 (2012) ...................................... 7, 11, 12

New York v. United States,

505 U.S. 144 (1992) ......................................... 18

Oregon v. Mitchell, 400 U.S. 112 (1970) ............ 17

Panama Refining Co. v. Ryan, 293 U.S. 388

(1935) ............................................................... 18

Richards v. Jefferson County, 517 U.S. 793

(1996) .............................................................. 13

Roe v. Wade, 410 U.S. 113 (1973) ....................... 10

South Ottawa v. Perkins, 94 U.S. 260 (1877) ...... 8

United States v. James Daniel Good Real

Property, 510 U.S. 43 (1993) ...................... 12-13

v

United States National Bank of Oregon v.

Independent Insurance Agents of America,

Inc., 508 U.S. 439 (1993) ............................... 8, 9

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ......................................... 17

Yakus v. United States, 321 U.S. 414 (1944) ..... 15

Constitution and Statutes

U.S. CONST. art. I .................................................. 5

U.S. CONST. art. II ................................................. 5

U.S. CONST. art. III ............................................... 5

U.S. CONST. art. I, §1 ................................ 5, 15, 18

U.S. CONST. art. I, §7, cl. 2............................. 15-16

U.S. CONST. art. V ............................................... 17

U.S. CONST. art. VI, cl. 2....................................... 6

U.S. CONST. art. VI, cl. 3....................................... 6

U.S. CONST. amend. V................................ 9-10, 12

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

Senate Resolution

S.J. Res. 29 (Dec. 8, 2021) .................................... 3

Articles and Other Authorities

1 The Records of the Federal Convention of 1787

(Max Farrand ed., 1911) ................................... 7

Abraham Lincoln, Gettysburg Address (1863) ..... 4

BLACK’S LAW DICTIONARY (5th ed. 1979) ............. 15

Charles J. Cooper, Confronting the

Administrative State,

National Affairs 96 (Fall 2015) ............ 6, 13, 14

vi

Christopher DeMuth, Can the Administrative

State be Tamed?, 8 Journal of Legal Analysis

121 (2016)

https://doi.org/10.1093/JLA/law003 ................. 7

Susan E. Dudley, Milestones in the Evolution

of the Administrative State, Daedalus, the

Journal of the American Academy of

Arts and Sciences 33 (Summer 2021) .......... 5, 6

The Federalist (Clinton Rossiter, ed. 1961)

No. 10 (J. Madison) ........................................... 4

No. 47 (J. Madison) ........................................... 6

No. 51 (J. Madison) ..................................... 4, 16

Marci Hamilton, Representation and

NonDelegation: Back to Basics,

20 Cardozo L. Rev. 807 (1999).................... 3, 11

John Forbes Nash, Non-Cooperative Games

(1950) (Princeton Univ. Ph.D. Dissertation) . 16

Note, Judicial Deference to Agency

Interpretations of Jurisdiction After Mead,

78 S. Cal. L. Rev. 1327 (2005) ........................ 10

Cass R. Sunstein, Chevron Step Zero,

92 Va. L. Rev. 187 (2006)................................ 11

John von Neumann and Oskar Morgenstern,

Theory of Games and Economic

Behavior (1944) ............................................... 16

No. 20-1530

IN THE

Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

INTERESTS OF AMICI CURIAE1

Amici Curiae (“Amici”) are Doctors for Disaster

Preparedness, a group of scientists founded in 1984,

and Eagle Forum Education & Legal Defense Fund,

founded in 1981 by Phyllis Schlafly. Amici oppose

direct and indirect modifications of the Constitution

through litigation, and have opposed unlawful agency

infringement on access to affordable energy.

Amici thus have a strong interest in this appeal.

1 Amici file this brief with written consent by all

parties. The

Consolidated Edison, et al., respondents have provided written

consent to the filing of this brief, and blanket consents have been

filed by all other parties. No counsel for a party authored this

brief in whole or in part. No person or entity other than Amici,

their members, or their counsel made a monetary contribution to

the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

Misuse of science for an agenda of political control

is dangerous, and the sort of tyranny by factionalism

that the Constitution safeguards against. The

unchecked administrative state is the pathway by

which this subterfuge creeps in. Disguise a method of

control in the name of science, ostracize those who

object to its lack of scientific basis, and voilà: the will

of the People is thereby subverted. If current trends

continue, a handful of unelected bureaucrats could

virtually prohibit use of the combustion engine that

traditional cars have efficiently used, and average

Americans will become dependent on government

allowance of electric charging stations in order to

merely travel from point A to B.

This usurpation by agencies of congressional power

has no resemblance to anything authorized by the

Constitution, and it is long overdue to rein in the

runaway administrative state that political activists

have captured to advance their own agenda.

Here the Clean Air Act is being misused in ways

never intended. Its lack of airtight wording is being

exploited for the highly partisan political goal of

controlling traditional energy under the guise of

“climate change.” While gun control increases

dependency on government for protection, energy

control increases dependency on government for

heating, air conditioning, refrigeration, lighting, and

travel. If our cars become dependent on governmentcontrolled recharging stations because refineries are

regulated out of existence, and our homes become

dependent on rationed energy, then freedom is

diminished. The harmful ideological goal of increased

government control over energy should not prevail.

3

Section 7411(d) of Title 42 of the United States

Code, if interpreted broadly, would seemingly allow an

unelected federal agency to prohibit refineries

necessary for automobiles, and coal-powered energy

sources necessary for home electricity. More than 300

million Americans use mechanical devices that rely for

energy on smokestacks that impact the air. It is

unlikely that even Congress has the authority to

inconvenience and control every American under the

guise of improving air quality. A handful of

bureaucrats in a federal agency certainly lacks that

authority, and it would be unconstitutional for

Congress to delegate such sweeping power to an

unaccountable administrator.

Continued unfettered delegation to administrative

agencies leaves a cavernous hole in the

constitutionally balanced structure of checks and

balances because agencies are prone to be arbitrary

and unaccountable. “The nondelegation doctrine in

this scenario is crucial to liberty, because it prohibits

general lawmaking from occurring in a structure both

capable of arbitrary action and removed from the

national scrutiny to which both Congress and the

President are exposed by the constitutional structure.”

Marci Hamilton, Representation and NonDelegation:

Back to Basics, 20 Cardozo L. Rev. 807, 821 (1999)

(“Hamilton, Representation & NonDelegation”).

Congress and many lower courts have already

rejected tyranny by edict of the administrative state

concerning the Covid-19 pandemic. See, e.g., S.J. Res.

29 (Dec. 8, 2021) (bipartisan 52-48 vote by the U.S.

Senate to disapprove the OSHA Covid-19 vaccine

mandate against large employers). This Court should

reject excess by the administrative state here

concerning the fundamental issue of energy, too.

4

ARGUMENT

I.

A Political Faction – Advocates of Strict

Government Controls on Energy –

Should Not Be Allowed to Circumvent

Congress and the Constitution.

We must begin with the basics and recognize that

our nation “was conceived in liberty.” Abraham

Lincoln, Gettysburg Address (1863) (referencing the

Declaration of Independence 87 years earlier).

Towards this end, the Founders designed a

Constitution that would tend “to break and control the

violence of faction.” The Federalist No. 10, at 77 (J.

Madison) (Clinton Rossiter, ed. 1961). James Madison

explained:

The latent causes of faction are thus sown in the

nature of man; and we see them everywhere

brought into different degrees of activity, according

to the different circumstances of civil society. A zeal

for different opinions concerning religion,

concerning government, and many other points, as

well of speculation as of practice; an attachment to

different leaders ambitiously contending for preeminence and power; or to persons of other

descriptions whose fortunes have been interesting

to the human passions, have, in turn, divided

mankind into parties, inflamed them with mutual

animosity, and rendered them much more disposed

to vex and oppress each other than to co-operate for

their common good.

Id. at 79. As James Madison explained later, a tyranny

of the majority is every bit as dangerous as a tyranny

of a single monarch. See generally The Federalist No.

51 (J. Madison).

5

Today there is no greater factional “zeal”, as James

Madison put it, than the demand for increased

government control over energy under a theory of a

cataclysmic man-made climate change. This forecast

has not materialized for more than a quarter-century

of zealotry about it, but no matter as its proponents

hope for judicial embrace anyway. Instead, this Court

should embrace the Constitution and affirm that

Congress exists to deal with such factions, as Madison

helped devise.

The Constitution divides power between the federal

sovereign and the state sovereigns. Then power is

further diffused among the three branches of the

federal government, i.e. the Legislative Branch, U.S.

CONST. art. I, the Executive Branch, U.S. CONST. art.

II, and the Judicial Branch, U.S. CONST. art. III.2 The

Bicameral Clause additionally diffuses federal

legislative power by dividing Congress into two

separate chambers, the Senate and the House of

Representatives. U.S. CONST. art. I, §1.

Yet the power-grabbing administrative state seems

to know no bounds, as measured by the number of

agencies, their budgets and staffing. The number of

regulations they issue has grown significantly over the

last century. Susan E. Dudley, Milestones in the

Evolution of the Administrative State, Daedalus, the

Journal of the American Academy of Arts and Sciences

33 (Summer 2021) (“Dudley, Milestones”). “Today,

scores of federal agencies issue thousands of

2 See Muskrat v. United States, 219 U.S. 346, 352 (1911) (“That

by the Constitution of the United States, the government thereof

is divided into three distinct and independent branches, and that

it is the duty of each to abstain from, and to oppose,

encroachments on either”).

6

regulations every year. The Code of Federal

Regulations contains 242 volumes and more than

185,000 pages.” Id. at 33-34. Some have referred to the

“administrative state as a ‘state,’ for it has become a

sovereign power unto itself, an imperium in imperio

regulating virtually every dimension of our lives.”

Charles J. Cooper, Confronting the Administrative

State, National Affairs 96, 97 (Fall 2015) (“Cooper”).

“The domain of the administrative state is vast,

ranging from the most trivial to the most significant

matters of public and private life.” Id. Indeed, the

instant petitions address how our tripartite system of

government has been subverted by the expansion of

the administrative state. Id. at 104.

This growth in the administrative state has created

several constitutional problems. First, power to make

the law, power to enforce the law, and power to

interpret the law have been concentrated in the hands

of each respective agency despite Madison’s clear

position in Federalist No. 47,3 and the plain language

of the vesting clauses in Articles I, II, and III of the

Constitution. Second, agencies escape real oversight

by the three enumerated branches. In other words, the

agencies are not accountable to any elected official.

Third, the plain language of the Supremacy Clause,

U.S. CONST. art. VI, cl. 2, and the Oath Clause, U.S.

CONST. art. VI, cl. 3, compel strict adherence to the

Constitution, including the three vesting clauses.

Some commentators candidly question whether

administrative law is law at all. Rather, they believe

“The accumulation of all powers, legislative, executive, and

judiciary, in the same hands … may justly be pronounced the very

definition of tyranny.” The Federalist No. 47 (J. Madison).

3

7

that administrative law “operate[s] as a sort of shadow

constitution, channeling the actions of Article I

legislators, Article II executives, and Article III judges

and calibrating the balance of power among the three

branches.”

Christopher

DeMuth,

Can

the

Administrative State be Tamed?, 8 Journal of Legal

Analysis 121 (2016) (internal citation omitted). 4 “The

fragmentation of power produced by the structure of

our Government is central to liberty, and when we

destroy it, we place liberty at peril.” Nat’l Fed’n of

Indep. Business v. Sebelius, 567 U.S. 519, 707 (2012)

(“NFIB”) (Scalia, Kennedy, Thomas, and Alito, JJ.,

dissenting).

Benjamin Franklin spoke eloquently of the need to

compromise between multiple viewpoints more than

two centuries ago. During the Constitutional

Convention, at a point when the convention was

sharply divided, Dr. Franklin drew the following

analogy between carpentry and legislation. He said:

When a broad table is to be made, and the edges (of

planks do not fit) the artist takes a little from both,

and makes a good joint. In like manner here both

sides must part with some of their demands, in

order that they may join in some accommodating

proposition.

1 The Records of the Federal Convention of 1787, 488

(Max Farrand ed., 1911). This compromise is difficult,

if not impossible in an agency setting.

The legislative branch is the proper forum for

competing theories about energy use, and it is for

Congress to hash out theories of climate change that

have never been proven in a court of law or elsewhere.

4 https://doi.org/10.1093/JLA/law003 (viewed 12/14/21).

8

II. THE INTELLIGIBLE PRINCIPLES TEST DOES

NOT APPLY BECAUSE SUBSECTION 7411(d) IS

UNCONSTITUTIONAL.

Every Federal statute and regulation must, of

course, comply with the entire Constitution.

Subsection 7411(d) and the regulations promulgated

thereunder do not come close. The yardstick used to

examine the validity of a delegation is called the

Intelligible Principles Test.

Under the Intelligible Principles Test, it is

“constitutionally sufficient if Congress clearly

delineates the general policy, the public agency which

is to apply it, and the boundaries of this delegated

authority.” Mistretta v United States, 488 U.S. 361,

372-73 (1989) (quoting American Power & Light Co. v.

S.E.C., 329 U.S. 90, 105 (1946)). In addition, a

delegation is always subject to the legislation that

authorized it. Immigration and Naturalization Service

v. Chadha, 462 U.S. 919, 953-54 (1983).

Before applying the Intelligible Principles Test, the

Court may wish to examine the validity of the

statutory grant to the agency. Such an examination is

consistent with the long-standing principle of

statutory construction that when a court is asked to

construe a law, it has authority to determine if that

law exists. United States National Bank of Oregon v.

Independent Insurance Agents of America, Inc., 508

U.S. 439, 446-447 (1993) (“USNB”). “There can be no

estoppel in the way of ascertaining the existence of a

law.” South Ottawa v. Perkins, 94 U.S. 260, 267 (1877).

Furthermore, “a court may consider an issue

‘antecedent to … and ultimately dispositive of’ the

dispute before it, even an issue the parties fail to

9

identify and brief.” USNB, 508 U.S. at 447

(emphasis added, internal citations omitted). This

Court explained that:

“[W]hen an issue or claim is properly before the

court, the court is not limited to the particular legal

theories advanced by the parties, but rather retains

the independent power to identify and apply the

proper construction of governing law,” … even

where the proper construction is that a law does not

govern because it is not in force.

USNB, 508 U.S. at 446 (quoting Kamen v. Kemper

Financial Services, Inc., 500 U.S. 90, 99 (1991)). The

failure of litigants to argue the legal issues correctly

does not render an appellate court powerless to

address those issues properly:

Appellate review does not consist of supine

submission to erroneous legal concepts even though

none of the parties declaimed the applicable law

below. Our duty is to enunciate the law on the

record facts. Neither the parties nor the trial judge,

by agreement or passivity, can force us to abdicate

our appellate responsibility.

Forshey v. Principi, 284 F.3d 1335, 1357 n.20 (Fed.

Cir.) (en banc), cert. denied, 537 U.S. 823 (2002)

(internal citation omitted). Indeed, appellate review of

the proper law prevents misapplication of the law,

injustice, and construction of hypothetical laws.

Because courts have independent authority to

determine if a law exists, this Court may and should

examine, sua sponte, the constitutionality of

Subsection 7411(d). Amici alert the Court to two

possible constitutional defects. First, the latent and

patent ambiguities in the language of Subsection

7411(d) violate the Due Process Clause of the Fifth

10

Amendment. Second, the statute’s language allegedly

empowers the Administrator of the EPA to take

regulatory actions which would “supplant” legislation

in violation of the Bicameral and Presentment

Clauses. Chadha, 462 U.S. at 952-54.

Subsection 7411(d) contains imprecise and vague

language. To resolve ambiguities involving such

delegation of regulatory authority, courts usually turn

to the case of Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). In just

thirty-seven years, Chevron has become the most often

cited Supreme Court case in history. Note, Judicial

Deference to Agency Interpretations of Jurisdiction

After Mead, 78 S. Cal. L. Rev. 1327, 1328 n.8 (2005)

(observing that Chevron was cited approximately as

many times as the combined total of citations to

Marbury v. Madison, 5 U.S. 137 (1803), Brown v.

Board of Education, 347 U.S. 483 (1954), and Roe v.

Wade, 410 U.S. 113 (1973)).

Although Chevron has been cited many thousands

of times, the Chevron “two-step” test is incomplete. It

should be replaced because Chevron test assumes,

rather than questions, the validity of a statutory

grant. In Chadha, the Court did not hesitate to find

the legislative veto procedure unconstitutional despite

its prior widespread use. In fact, the Court noted that

in the fifty years preceding the case approximately

three hundred such procedures were included in

approximately two hundred statutes. The Court

stated:

[T]he fact that a given law or procedure is efficient,

convenient, and useful in facilitating functions of

government, standing alone, will not save it if it is

contrary to the Constitution. Convenience and

efficiency are not the primary objectives – or the

11

hallmarks – of democratic government and our

inquiry is sharpened rather than blunted by the

fact that congressional veto provisions are

appearing with increasing frequency in statutes

which delegate authority to executive and

independent agencies:

Since 1932, when the first veto provision was

enacted into law, 295 congressional veto-type

procedures have been inserted in 196 different

statutes….

Chadha, 462 U.S. at 944-45 (internal citation omitted);

see also NFIB, 567 U.S. at 550 (Roberts, C.J.)

(commenting that the Court may not presuppose the

existence of commercial activity to allow Congress to

regulate it).

Amici respectfully request that the Court fill a

chasm in the Court’s delegation jurisprudence: the

failure of courts to examine whether the statutory

grant of regulatory authority to an executive or

administrative

agency

complies

with

the

5

Constitution. By adding a step, which could be

denominated either as “Step-Zero” or as “Step-Three”,

to Chevron’s “two-step” approach, a more robust

judicial approach to delegation of regulatory authority

is possible. See generally, Cass R. Sunstein, Chevron

Step Zero, 92 Va. L. Rev. 187 (2006) (recommending an

initial inquiry into whether the Chevron framework

applies at all).

5 See Hamilton, Representation & Nondelegation, 20 Cardozo L.

Rev. at 821 (“The Court has addressed delegation to

administrative agencies with little rigor, leaving a gaping hole in

the Constitution’s balanced structure of checks and balances.”)

(footnote omitted).

12

Adding this step to the Chevron test is essential

because our federal government is one of enumerated

powers, not one of general powers. In NFIB, 567 U.S.

519, the Chief Justice began his opinion by recognizing

that limited powers were granted to the federal

government and its components, e.g. Congress. He

stated:

In our federal system, the National Government

possesses only limited powers; the States and the

people retain the remainder. Nearly two centuries

ago, Chief Justice Marshall observed that ‘the

question respecting the extent of the powers

actually granted’ to the Federal Government ‘is

perpetually arising, and will probably continue to

arise, as long as our system shall exist.’ McCulloch

v. Maryland, 4 Wheat. 316, 405 (1819).

NFIB, 567 U.S. at 533-34 (Roberts, C.J.). As in

McCulloch and NFIB, the Court must again determine

the scope of authority delegated from Congress. In

making that determination, the Court should reaffirm

that the powers of each branch are limited by the

Constitution and that there are no federal powers

beyond those enumerated in the Constitution.

A. Considering Subsection 7411(d) Contains

Vague and Imprecise Terms, the Due

Process Clause Is Violated.

The Due Process Clause of the Fifth Amendment

provides that no person shall “be deprived of life,

liberty, or property, without due process of law.” U.S.

CONST. amend. V. As this Court has stated: “[o]ur

precedents establish the general rule that individuals

must receive notice and an opportunity to be heard

before the Government [albeit state or Federal]

deprives them of [life, liberty, or] property.” United

13

States v. James Daniel Good Real Property, 510 U.S.

43, 48 (1993) (internal citations omitted).

Because the “fundamental requisite of due process

… is the opportunity to be heard … [t]his right to be

heard has little reality or worth unless one is informed

that the matter is pending and can choose for himself

whether to appear or default, acquiesce or contest.”

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 314 (1950); Richards v. Jefferson County, 517

U.S. 793, 799 (1996) (quoting Mullane); Dusenbery v.

United States, 534 U.S. 161, 173 (2002) (Ginsburg, J.,

dissenting). When words are ambiguous, fair notice is

impossible or, at the very least, obfuscated.

The Chief Justice has expressed his own

jurisdictional concerns about vague delegations. In one

dissent, he said: “When it applies, Chevron is a

powerful weapon in an agency’s regulatory arsenal.

Congressional delegations to agencies are often

ambiguous – expressing ‘a mood rather than a

message.’” City of Arlington v. FCC, 569 U.S. 290, 314

(2013) (Roberts, C.J., dissenting).6 Indeed,

[s]uch ambiguity is endemic in the U.S. Code, since

Congress often prefers to set a politically

uncontroversial goal and leave it to the agencies to

figure out the politically controversial means of

achieving that goal. Indeed, a number of agencies

have been given a regulatory carte blanche –

authorization to regulate, for example, in the

‘public interest’ – and the Supreme Court has

6 One commentator noted that in the City of Arlington case the

Court had extended Chevron to questions of agency jurisdiction

and had thereby gave agencies the ability to overrule courts.

Cooper at 104.

14

uniformly upheld such boundless delegations of

legislative authority.

Cooper, at 103 (emphasis added).

Delegation to an agency does not and indeed cannot

exist in vacuo. As discussed above, it is derivative of a

statutory grant of regulatory authority which itself

must be constitutionally valid. Bowen v. Georgetown

University Hospital, 488 U.S. 204, 208 (1988) (“It is

axiomatic that an administrative agency’s power to

promulgate legislative regulations is limited to the

authority delegated by Congress”). Amici believe the

statutory grant in Subsection 7411(d) does not comply

with the Constitution. Subsection 7411(d) contains

several words and phrases that are vague or imprecise

– unable to serve as a guidepost for EPA action. The

Court should consider the fuzziness of the words “plan”

and “similar”.

The word “plan” is imprecise. It appears eight times

in Subsection (d): four times it is qualified by the

indefinite article “a”; twice it is qualified by the word

“implementation”; once it is qualified by the adjective

“such”, but there is no antecedent plan with

boundaries; and once by the adjective “satisfactory”. It

is the concatenation of the word “plan” with the word

“satisfactory” that is truly troubling. It is troubling

because it creates a dispensing power in the

Administrator of the EPA.7 As used in Subsection (d),

7 When the EPA regulates without preset standards imposed by

Congress, it turns rulemaking on its head – EPA rulemaking (and

other actions) would control legislation instead of being controlled

by the legislation. Such a doctrine – agency control of legislation

– has no support in the Constitution. It asserts a principle which

would provide the agency with an unlimited power, “a power

entirely to control the legislation of [C]ongress, and paralyze the

15

the word “plan” is not constrained within metes and

bounds. There are no criteria for the states, the EPA

and others to follow.

Likewise, the word “similar” says nothing. The

word “similar” provides no boundary. It is generally

interpreted to mean:

that one thing has a resemblance in many respects,

nearly corresponds, is somewhat like, or has a

general likeness to some other thing but is not

identical in form and substance, although in some

cases “similar” may mean identical or exactly alike.

It is a word with different meanings depending on

the context in which it is used.

BLACK’S LAW DICTIONARY 1240 (5th ed. 1979) (quoting

Guarantee Mut. Life Ins. Co. v. Harrison, Tex. Civ.

App., 358 S.W. 2d 404, 406 (1962)).

In short, Subsection 7411(d) provides no marker or

check to determine whether the EPA has exceeded the

authority granted by Congress. See generally Yakus v.

United States, 321 U.S. 414, 423-24 (1944); Chadha,

462 U.S. at 953.

B. Because Subsection 7411(d) Authorizes

EPA Actions Which Supplant Legislation,

the Bicameral and Presentment Clauses

Are Violated.

Although not every administrative action is subject

to the bicameralism and presentment requirements,

those requirements must be met whenever legislative

power is exercised. See U.S. CONST. art. I, §1 and §7,

administration of justice.” Kendall v United States ex rel. Stokes,

12 Pet. (37 U.S.) 524, 613 (1838).

16

cl. 2. It is apparent from reading the Constitution’s

other provisions and The Federalist No. 51 that our

Founders were concerned about the natural tendency

of people to develop into factions that would promote

their own self-interests. Therefore, the Founders

designed a legislative process that, in theory and

practice, would be modeled today as a series of noncooperative games whereby a bill becomes a law if and

only if the President, Senate and House reach the

same equilibrium point by agreeing to identical

statutory language. Cf. John von Neumann and Oskar

Morgenstern, Theory of Games and Economic

Behavior (1944) (generally regarded as the formal

beginning of game theory) and John Forbes Nash,

Non-Cooperative Games (1950) (Princeton University

Ph.D. Dissertation). Whether particular actions

“exercise … legislative power depends not on their

form but upon ‘whether they contain matter which is

properly to be regarded as legislative in its character

and effect.’” Chadha, 462 U.S. at 952 (internal citation

omitted).

The legislative character of an action may be

established by an examination of the Congressional

action it supplants. This “Supplantation Principle”

was used to analyze the legislative veto in Chadha,

462 U.S. at 952 (“The legislative character of the oneHouse veto in these cases is confirmed by the character

of the congressional action it supplants”). The Court

should extend this principle to cover all “legislative

actions,” whether undertaken by an executive

department, the judiciary, or an independent agency.

“In short, when Congress ‘[takes] action that ha[s]

the purpose and effect of altering the legal rights,

duties, and relations of persons … outside the

Legislative Branch,’ it must take that action by the

17

procedures

authorized

in

the

Constitution.

See Chadha, 462 U.S. at 952-955.” Metropolitan

Washington Airports Authority v. Citizens for the

Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276

(1991) (brackets and ellipsis in original, emphasis

added). Congress has not so acted, and instead the

EPA has improperly altered rights.

III. CONGRESS MAY NOT CEDE LEGISLATIVE POWER

TO ANOTHER BRANCH OR ENTITY.

This Court has repeatedly prevented Congress

from ceding its own power. Congress cannot abdicate

its responsibilities by voluntarily ceding its powers:

That a congressional cession of power is voluntary

does not make it innocuous. The Constitution is a

compact enduring for more than our time, and one

Congress cannot yield up its own powers, much less

those of other Congresses to follow. See Freytag v.

Commissioner, 501 U.S. 868, 880 (1991); cf.

Chadha, supra, at 942, n. 13.

Clinton v. City of New York, 524 U.S. 417, 452 (1998)

(Kennedy, J., concurring).

It is a fundamental principle of constitutional law

that the chambers of Congress may not reallocate their

own powers inter sese. The same is true of the

reallocation of power between the branches. Only the

People may reallocate those powers, and only through

an Article V amendment. See generally U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995);

Clinton, 524 U.S. at 449; Oregon v. Mitchell, 400 U.S.

112, 128 (1970) (“Congress may not by legislation

repeal other provisions of the Constitution.”).

18

By failing to enforce the Non-Delegation Doctrine

over the last 86 years, a de facto reallocation has

occurred. It is time to revive and enforce the NonDelegation Doctrine. Indeed, the Framers’ “devotion to

the separation of powers is, in part, what supports our

enduring conviction that the Vesting Clauses are

exclusive and that the branch in which a power is

vested may not give it up or otherwise reallocate it.”

Department of Transportation v. Association of

American Railroads, 575 U.S. 43, 74 (2015) (Thomas,

J., concurring in judgment).

The Court has repeatedly held “the lawmaking

function belongs to Congress, U.S. CONST. Art. I, § 1,

and may not be conveyed to another branch or entity.”

See e.g. Loving v. United States, 517 U.S. 748, 758

(1996) (internal citation omitted). Accordingly,

“Congress manifestly is not permitted to abdicate, or

to transfer to others, the essential legislative functions

with which it is thus vested.” Panama Refining Co. v.

Ryan, 293 U.S. 388, 421 (1935). “[I]t is a breach of the

National fundamental law if Congress gives up its

legislative power and transfers it to the President ….”

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

394, 406 (1928).

This Court has recognized “[t]he Constitution’s

division of power among the three branches is violated

where one branch invades the territory of another,

whether or not the encroached-upon branch approves

the encroachment.” New York v. United States, 505

U.S. 144, 182 (1992). The “constitutional authority of

Congress cannot be expanded by the ‘consent’ of the

governmental unit whose domain is thereby narrowed,

whether that unit is the Executive Branch or the

States.” Id. The improper delegations to the EPA and

other agencies have allowed them to operate in an

19

extra-constitutional vacuum. Although agencies may

be said to possess quasi-legislative, quasi-executive,

and quasi-judicial powers, the real danger is that these

agencies have become immune to our system of checks

and balances, the Separation of Powers Doctrine, and

the Constitution.

Likewise, Justice Thomas addressed the Court’s

duty head-on in Association of American Railroads v.

Department of Transportation, when he ended his

concurring opinion with the following words:

We have too long abrogated our duty to enforce the

separation of powers required by our Constitution.

We have 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.

575 U.S. at 91 (Thomas, J., concurring, emphasis

added).

CONCLUSION

For the foregoing reasons, Subsection 7411(d) and

the regulations promulgated thereunder are void.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

Dated: December 20, 2021