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

WEST VIRGINIA, ET AL.

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

THE NORTH AMERICAN COAL CORPORATION

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

WESTMORELAND MINING HOLDINGS LLC

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

NORTH DAKOTA

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

On Writs of Certiorari to the United States

Court of Appeals for the D.C. Circuit

BRIEF FOR AMICI CURIAE THE MICHIGAN

HOUSE OF REPRESENTATIVES AND

THE MICHIGAN SENATE

IN SUPPORT OF PETITIONERS

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

JAMES A. HEILPERN

RIDDHI DASGUPTA

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

QUESTION PRESENTED IN NO. 20-1531

Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally

authorized 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

QUESTION PRESENTED IN NO. 20-1531 ................ i

TABLE OF AUTHORITIES ...................................... iiv

INTRODUCTION AND INTERESTS OF AMICI ...... 1

STATEMENT............................................................... 2

SUMMARY OF ARGUMENT .............................................. 4

ARGUMENT ................................................................ 4

I. This Court should reverse the D.C.

Circuit’s interpretation of § 7411(d) to

protect legislatures’ interests, which are

harmed whenever courts allow executive

agencies to egregiously depart from the

text of a statute and to affirm that the

nondelegation doctrine occupies an

important place in American constitutional

law. .................................................................... 4

A. Courts’ refusal to enforce the

nondelegation doctrine make it

impossible for executive legislatures

to safeguard their constitutional

authority to make law. ................................ 8

B. Courts’ refusal to enforce the

nondelegation doctrine discourages

bipartisanship and harms the

legislative process. ..................................... 10

II. The nondelegation doctrine is flourishing

in the state courts, and this case presents

an excellent vehicle for the Court to

revitalize that doctrine in federal courts. ...... 15

A. Reports of the nondelegation doctrine’s

death have been greatly exaggerated. ...... 16

iii

TABLE OF CONTENTS (cont’d)

1. State courts have been paving

the way by example .............................. 19

CONCLUSION .......................................................... 29

iv

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schecter Poultry Corp. v. United States,

295 U.S. 495 (1935) ............................................ 5, 16

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n, 576 U.S. 787 (2015) ........ 5, 7

Askew v. Cross Key Waterways,

372 So.2d 913 (Fla. 1978)....................................... 24

Board of Trustees v. Att’y. Gen. of Com.,

132 S.W.3d 770 (Ky. 2003) ..................................... 26

Brown v. Apalachee Reg. Planning Council,

560 So. 2d 782 (1990) ............................................. 21

Bush v. Schiavo,

885 So.2d 321 (Fla. 2004)................................. 24, 28

Coleman v. Miller,

307 U.S. 433 (1939) ............................................ 8, 28

Diemer v. Commonwealth, Ky.,

Transp. Cabinet, Dep’t of Highways,

786 S.W.2d 861 ( Ky. 1990) .................................... 26

Egan v. Delaware Riv. Port. Auth.,

851 F.3d 263 (3d. Cir. 2017) .................................. 11

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .................................................. 6

Field v. Clark,

143 U.S. 649 (1892) .......................................... 22, 27

Florida Dept. of State v. Martin,

916 So. 2d 763 (2005) ............................................. 24

Flying J Travel Plaza v. Commonwealth, Ky.,

928 S.W.2d 344 (1996) ........................................... 26

v

TABLE OF AUTHORITIES (cont’d)

Cases (cont’d)

Guillou v. State,

127 N.H. 579 (1986). .............................................. 25

In re Certified Questions From United States Dist.

Ct., W. Dist. of Michigan, D. Div.,

958 N.W.2d 1 (Mich. 2020) .............................. 22, 23

Kerth v. Hopkins Cty Bd. of Ed.,

346 S.W.2d 737 (Ky. 1961) ..................................... 27

Legislative Research Comm’n v. Brown, Ky.,

664 S.W.2d 907 (1984) ........................................... 26

Lewis v. Bank of Pasco Cnty., Fla.,

346 So.2d 53 (Fla. 1976)................................... 23, 24

Loving v. United States, 517 U.S. 748 (1996) ............. 5

Marr v. Enloe,

9 Tenn. 452 (1830).................................................. 20

Miller v. Covington Dev. Authy.,

539 S.W.2d 1 (Ky. 1976) ......................................... 28

Mistretta v. United States,

488 U.S. 361 (1989) .......................................... 21, 27

Morrison v. Olson,

487 U.S. 654 (1988) ................................................ 21

Murphy v. Cranfill,

416 S.W.2d 363 (Ky. Ct. App. 1967) ...................... 27

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................ 15

Northern Cedar Co. v. French,

131 Wash. 394, 230 P. 837 (1924).......................... 26

Oregon v. Ice,

555 U.S. 160 (2009) ................................................ 15

vi

TABLE OF AUTHORITIES (cont’d)

Cases (cont’d)

Orr v. Trask,

464 So.2d 131 (Fla. 1985)....................................... 24

Osius v. City of St. Clair Shores,

344 Mich. 693, 75 N.W.2d 25 (1956)...................... 28

Panama Ref. Co. v. Ryan,

293 U.S. 388 (1935) ................................................ 15

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ................................................ 21

Raines v. Byrd,

521 U.S. 811 (1997) .................................................. 7

S.C. State Hwy. Dept. v. Harbin,

226 S.C. 585 (1955) ................................................ 25

Schloss Poster Advertising Co. v. City of Rock Hill,

190 S.C. 92 (1939) .................................................. 20

State v. Denny,

21 N.E. 252 (Ind. 1889) .......................................... 20

State v. Field,

17 Mo. 529 (1853) ................................................... 20

State, Dep’t of Citrus v. Griffin,

239 So.2d 577 (Fla. 1970)....................................... 27

Steen v. Appellate Div., Superior Court,

331 P.3d 136 (Cal. 4th 2014).................................. 20

United States v. Robel,

389 U.S. 258 (1967) ................................................ 23

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .............................................. 6, 7

Wayman v. Southard,

23 U.S. 1 (1825) ........................................................ 4

vii

TABLE OF AUTHORITIES (cont’d)

Cases (cont’d)

West Virginia v. EPA,

136 S. Ct. 1000 (2016) .............................................. 3

West Virginia v. EPA,

No. 1501363 (D.C. Cir. Jan. 21, 2016) ..................... 3

Whitman v. American Trucking Assocs.,

531 U.S. 457 (2001) ........................................ 7, 9, 10

Young v. Willis,

203 S.W.2d 5 (Ky. Ct. App. 1947) .......................... 27

Constitutional Authority

U.S. Const. art. 1, § 1................................................... 8

Statutes

42 U.S.C. § 7411(d) ........................................ 3, 4, 5, 10

Mich. Comp. Laws § 10.31(1) .................................... 23

Other Authorities

Jonathan H. Adler & Christopher J. Walker,

Delegation & Time,

105 Iowa L. Rev. 1931 (2020)................................. 12

Matthew D. Adler, Judicial Restraint in the

Administrative State: Beyond the

Countermajoritarian Difficulty,

145 U. Pa. L. Rev. 759 (1997) ................................ 16

Larry Alexander & Saikrishna Prakash,

Delegation Really Running Riot,

93 Va. L. Rev. 1035 (2007) ..................................... 16

Clean Air Act Amendments of 1987: Hearings on

S.300, S.321, S.1351 & S.1384 before the

Subcomm. on Env’t Pro. of the Comm. on

Env’t & Pub. Works, 100th Cong. 13 (1987) ............ 3

viii

TABLE OF AUTHORITIES (cont’d)

Other Authorities (cont’d)

Andrew Coan, The Dead Hand Revisited,

70 Emory L.J. (2020) ................................................ 9

Kenneth Culp Davis, Administrative Law and

Government (1960) ................................................. 16

Frank H. Easterbrook, Textualism and the Dead

Hand, 66 Geo. Wash. L. Rev. 1119 (1998) .............. 9

Cynthia R. Farina, Deconstructing Nondelegation,

33 Harv. J.L. & Pub. Pol’y 87 (2010) ..................... 16

Federalist 47 ................................................................ 5

J. Tobin Grant & Nathan J. Kelly, Legislative

Productivity of the U.S. Congress, 1789-2004,

16 Pol. Analysis 303 (2004).................................... 12

H.R.5281, 111th Cong. (2010) ................................... 13

Jason Iuliano & Keith E. Whittington, The

Nondelegation Doctrine: Alive and Well,

93 Notre Dame L. Rev. 619 (2017) ...... 15, 17, 18, 19

Ezra Klein, Congressional Disfunction, Vox

(May 15, 2015) ........................................................ 12

Nancy Leong, Making Rights,

92 B.U. L. Rev. 405 (2012) ..................................... 18

Jacob Loshin & Aaron L. Nielson,

Hiding Nondelegation in Mouseholes,

62 Admin. L. Rev. 19 (2010) .................................... 6

Aaron L. Nielson, Deconstruction (Not Destruction),

150 Daedelus 143 (Summer 2021)......................... 10

ix

TABLE OF AUTHORITIES (cont’d)

Other Authorities (cont’d)

Nancy Pelosi, Pelosi Statement on Fourth

Anniversary of Implementation of DACA

(Aug. 15, 2016) ....................................................... 11

John G. Roberts, Jr., Article III Limits on

Statutory Standing, 42 Duke L.J. 1219 (1993) ... 7, 8

S. 1291 - 107th Congress (2001-2002):

DREAM Act, S. 1291, 107th Cong. (2002) ............ 13

S.744 - 113th Congress (2013-2014): Border

Security, Economic Opportunity, and

Immigration Modernization Act,

S.744, 113th Cong. (2013) ...................................... 15

Saturday Night Live, How a Bill Does Not

Become a Law, (Nov. 23, 2014) .............................. 14

Matthew C. Stephenson, Public Regulation

of Private Enforcement: The Case for Expanding

the Role of Administrative Agencies,

91 Va. L. Rev. 93 (2005) ......................................... 16

Edward H. Stiglitz, The Limits of Judicial

Control and the Nondelegation Doctrine,

34 J. L. Econ. & Org. 27 (2018) ............................. 19

Cass Sunstein, Nondelegation Canons,

67 Chi. L. Rev. 315 (2000)........................................ 6

Ruy Teixeira, Americans Support Immigration,

Center for American Progress (Oct. 3, 2011) ........ 14

Unsuccessful Dreamers Bills 2001-2017 .................. 13

Lewis M. Wasserman, Overcoming Obstacles to

Religious Exercise in K-12 Education,

40 J. Legis. 96 (2014) ............................................. 18

Sheldon Whitehouse, Surveillance Laws &

Presidential Power (Jan. 3, 2008) .......................... 12

INTRODUCTION AND INTERESTS OF AMICI 1

Amici are the Michigan House of Representatives

and the Michigan Senate. The Michigan legislature,

like other state legislatures, is currently experiencing

divided government, meaning that the governor’s

mansion is in the hands of one political party, while

the legislature is controlled by another party. As a result, amici are particularly concerned about safeguarding the separation of powers. They recognize the

unique injuries inflicted on legislatures when courts

refuse to enforce the nondelegation doctrine and allow

the executive to exercise lawmaking authority. These

include decreasing the legislature’s own lawmaking

power and disincentivizing bipartisanship and compromise. While the present case raises the nondelegation question as applied to Congress and federal

agencies, lower courts and state courts often look to

this Court’s guidance in state-law delegation cases as

well. Therefore, to the extent this Court reaches the

constitutional issue, this Court’s ruling will likely affect the nondelegation doctrine as applied to state legislatures.

Reports of the nondelegation doctrine’s death are

greatly exaggerated: recent scholarship demonstrates

that it is frequently invoked by state courts. Amici

therefore urge this Court to learn from the experience

of state courts and reinvigorate the nondelegation doctrine in the federal system by reversing the D.C. Circuit’s decision and declaring the Clean Power Plan

unconstitutional.

1 No one other than amici and their counsel authored any part of

this brief or made a monetary contribution to fund its preparation

or submission. Petitioner and Respondent both filed blanket consents.

2

STATEMENT

In 1970, Congress passed the Clean Air Act, a law

designed to reduce air pollution nationwide. It contained a small provision that allowed the Administrator of the EPA to prescribe regulations that set

“standards of performance for existing sources” of pollution. 42 U.S.C. § 7411(d). Yet this provision was

never used. When Congress was debating amendments to the CAA twenty years later, Senator David

Durenburger (R-MN), the architect of the amendment

called § 7411(d) “some obscure, never-used section of

the law.” 2

All this changed in October 2015, when the EPA

under the Obama administration finalized the Clean

Power Plan, a regulation that would “lead[] global efforts to address climate change.” JA.222. Through a

strained interpretation of § 7411(d), the CPP required

States to achieve reductions in carbon-dioxide emissions that the EPA admitted individual sources could

not meet using current technologies and process improvements. JA.853–54. Instead, they created a credit

system that would require power plants to subsidize

“energy generated or save with zero associated CO2

emissions” elsewhere. JA.1605, 1615–16. As written,

the CPP would radically transform the electricity sector, forcing some power companies to invest in alternative energies, cut existing operations, or subsidize

their competitors. It would also cost billions of dollars

2 Clean Air Act Amendments of 1987: Hearings on S.300, S.321,

S.1351 & S.1384 before the Subcomm. on Env’t Pro. of the Comm.

on Env’t & Pub. Works, 100th Cong. 13 (1987).

3

to implement and lead to much higher utility bills for

consumers. JA.226.

In response, twenty-seven States sought to stay the

enforcement of the CPP. While the D.C. Circuit refused, West Virginia v. EPA, No. 1501363 (D.C. Cir.

Jan. 21, 2016), this Court granted the stay. West Virginia v. EPA, 136 S. Ct. 1000 (2016). The EPA, taking

this Court’s “not-so-subtle hint,” reconsidered the rule,

during which the lower courts held the case in abeyance. JA.88. In July 2019, the EPA repealed the CPP,

concluding that it had “significantly exceeded” the

agency’s statutory authority for various reasons, most

notably that it violated the major questions canon.

JA.1725.

This prompted more litigation as more states sued

the EPA, this time for repealing the CPP, while still

more States (including Petitioners) sought to intervene. In January 2021, the D.C. Circuit concluded that

the repeal had been unlawful, rejecting the EPA’s narrow reading of § 7411(d) and finding that Congress had

delegated to the EPA a general power to regulate

power plants’ greenhouse gas emission. JA.135-36.

Petitioners then sought certiorari review, which

this Court granted.

4

SUMMARY OF ARGUMENT

This Court should reverse the D.C. Circuit’s decision below in order to protect the unique interests of

legislatures that are harmed whenever courts refuse

to enforce the nondelegation doctrine. When courts allow executive agencies to peddle egregious interpretations of statutes, legislatures are harmed in at least

two ways: (1) they are prevented from safeguarding

their constitutional authority over lawmaking; and (2)

individual legislators are disincentivized from engaging in bipartisanship and compromise.

Reports of the nondelegation doctrine’s death have

been greatly exaggerated. Recent scholarship demonstrates that the doctrine is alive and well, especially in

state courts. This Court should consider these wellreasoned, nondelegation doctrine decisions that have

been decided by state supreme courts around the country, as additional support—in addition to this Court’s

own precedents—for the principle that delegations of

legislative authority (such as the EPA claimed to find

here) are inappropriate.

ARGUMENT

I.

This Court should reverse the D.C. Circuit’s

interpretation of § 7411(d) to protect legislatures’ interests, which are harmed whenever

courts allow executive agencies to egregiously depart from the text of a statute and

to affirm that the nondelegation doctrine occupies an important place in American constitutional law.

“The legislature makes, the executive executes, and

the judiciary construes the law.” Wayman v. Southard,

23 U.S. 1, 46 (1825). These are not empty platitudes

5

cribbed from the lyrics of a Schoolhouse Rock song, but

the bedrock of American constitutional law. Indeed,

separating the powers of government between competing branches was critical to the Founders’ design. As

James Madison explained in Federalist 47: “When the

legislative and executive powers are united in the

same person or body[,] . . . 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.” Those apprehensions

continue to exist today regardless of whether the body

exercising both powers is a president, a Congress, or

the EPA. That is why this Court has stated that “Congress cannot delegate legislative power to [the executive branch] to exercise an unfettered discretion to

make whatever laws [it] thinks may be needed or advisable.” A.L.A. Schecter Poultry Corp. v. United

States, 295 U.S. 495, 537–38 (1935).

Although this Court has not specifically struck

down a statute under the nondelegation doctrine since

Schecter Poultry was decided in 1935, that is not because it has forsaken the nondelegation principle:

“While it has become the practice in our opinions to

refer to ‘unconstitutional delegations of legislative authority’ versus ‘lawful delegations of legislative authority,’ in fact that latter category does not exist.

Legislative power is nondelegable.” Loving v. United

States, 517 U.S. 748, 776–777 (1996) (Scalia, J., concurring). Instead, the legislature is allowed to assign

responsibilities to the executive—some of which involve exercises of discretion. Arizona State Legislature

v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787,

845 (2015) (Roberts, C.J., dissenting) (“As a general

matter, Congress may pass statutes that delegate

some discretion to those who administer laws.”)

6

Indeed, scholars have noted that the spirit of the

nondelegation doctrine has lived on in this Court’s decisions, even if they have not invoked it by name. For

example, Cass Sunstein argues that “[f]ederal courts

commonly” use certain substantive canons to “vindicate not a general non-delegation doctrine, but a series

of more specific and smaller, though quite important,

non-delegation doctrines.” Cass Sunstein, Nondelegation Canons, 67 Chi. L. Rev. 315 (2000). Through these

“nondelegation canons”—which include a prohibition

on agencies construing statutes in such a way as to

raise constitutional doubt, the rule that tax exemptions should be construed narrowly, and the rule of

lenity, among others—“courts hold that … agencies

may not engage in certain activities unless and until

Congress has expressly authorized them to do so.” Id.

Other scholars believe that the substance of the nondelegation doctrine has been revitalized through this

Court’s renewed interest in the major question doctrine, which has seen a dramatic resurgence over the

last decade. Jacob Loshin & Aaron L. Nielson, Hiding

Nondelegation in Mouseholes, 62 Admin. L. Rev. 19

(2010). The major questions doctrine states that courts

should not defer to agency statutory interpretation on

“decisions of vast economic and political significance”

without a clear statement from Congress that it should

do so. Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324

(2014). This Court is especially suspicious when agencies claim “to discover in a long-extant statute an unheralded power to regulate a significant portion of the

American economy.” Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). This

is because, as Justice Scalia memorably quipped,

7

“Congress … does not … hide elephants in mouseholes.” Whitman v. American Trucking Assocs., 531

U.S. 457, 468 (2001).

But the D.C. Circuit allowed the EPA to do just that

here, fashioning a new rule instead which asked

whether “it [was] implausible in light of the statute

and subject matter in question that Congress authorized such unusual agency action.” JA.135–36. The majority accepted as true the fact that the CPP would cost

“billions of dollars” and would increase the electricity

costs of “every electricity customer.” JA.148. In light of

that, there should have been no dispute that the Clean

Power Plan was a “decision[] of vast economic and political significance,” and therefore unlawful in the absence of a clear statement of Congressional intent.

UARG, 573 U.S. supra, at 324. Yet by contorting the

meaning of two words in an ancillary provision of the

Clean Air Act beyond recognition, the majority not

only upheld the CPP but found the EPA’s subsequent

repeal of the CPP unlawful.

To be clear, the consequences of this decision do not

just undermine America’s electricity sector—serious

as that may be: they threaten our constitutional system of separation of powers itself. As Chief Justice

Roberts once explained, “[s]eparation of powers is a

zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of the other

branches.” John G. Roberts, Jr., Article III Limits on

Statutory Standing, 42 Duke L.J. 1219, 1230 (1993).

That is why in the past, this Court has found that legislatures have standing to sue over executive actions

that inflict “institutional injur[ies[” on them,” Arizona

State Legislature, 576 U.S. at 802, such as rendering

“their votes . . . completely nullified.” Raines v. Byrd,

8

521 U.S. 811, 823 (1997) (discussing the holding of

Coleman v. Miller, 307 U.S. 433 (1939)).

The D.C. Circuit’s refusal to stop the EPA from discovering delegated power to unilaterally transform an

entire sector of the economy has inflicted an “institutional injury” on Congress and harmed the legislative

process in at least two ways: (1) it is impossible for

Congress to protect their constitutional authority to

make the law; and (2) it discourages legislatures from

engaging in bipartisanship and compromise.

A. Courts’ refusal to enforce the nondelegation doctrine make it impossible for

executive legislatures to safeguard

their constitutional authority to make

law.

First, when courts do not enforce the nondelegation

doctrine—or at least one of its spiritual successors—it

prevents legislatures from being able to safeguard

their constitutional authority over lawmaking. The

U.S. Constitution states that “[a]ll legislative Powers

herein granted shall be vested in a Congress.” U.S.

Const. art. 1, § 1 (emphasis added). Most state constitutions do the same for their legislative bodies. When

courts ignore this and allow executive agencies to enact far-reaching policies through the discovery of “elephants in mouseholes”—as the D.C. Circuit did

below—they do so necessarily at the expense of the legislature. After all, “separation of powers is a zero-sum

game.” Roberts, 42 Duke L.J. at 1230. For the executive’s authority to increase, the legislature’s must

shrink.

In particular, by letting the EPA off its leash, the

D.C. Circuit has transformed the very constitutional

9

system designed to preserve Congressional authority

over national policy into obstacles that prevent Congress from setting the agenda. Under our Constitution,

when a bill passes both houses of Congress and secures

a presidential signature, it not only becomes law but

remains law unless a future Congress goes through the

same onerous process to repeal it. This is true even if

the law is unpopular with the public, difficult to implement, or future Congresses would not have chosen to

enact it. Bicameralism and presentment ensures that

it is just as difficult to overturn an act of Congress as

it is to pass it in the first place. Critics call this the

“dead hand problem,” arguing that it is unfair for the

acts of past legislatures—whose members may all be

dead—to remain binding even when the current representatives of the people would be unwilling to pass the

same law today. Andrew Coan, The Dead Hand Revisited, 70 Emory L.J. Online 1 (2020). But this is a feature of our constitutional system, not a bug—it

ensures that Congress, as an institution, is respected,

even as its members perpetually change. This is the

price we pay for political stability. As Judge Frank

Easterbrook explained, “Someone who loses a legislative battle today accepts that loss in exchange for certainty that next year’s victory on some other subject

will be accepted by other losers in their turn.” Frank

H. Easterbrook, Textualism and the Dead Hand, 66

Geo. Wash. L. Rev. 1119, 1122 (1998).

But when courts allow legislatures to delegate

away their constitutional authority over lawmaking,

they turn this process on its head and create a perverted version of the dead hand problem that destroys

the legislature’s authority and encourages political in-

10

stability. “[A]gencies rely on old delegations not to retain the status quo but rather to create new rules that

today’s [legislature] would not enact.” Aaron L. Nielson, Deconstruction (Not Destruction), 150 Daedelus

143, 148 (Summer 2021). These problems are compounded dramatically when, as here, courts allow

agencies to discover “elephants in mouseholes,” and

justify dramatic shifts in public policy through farfetched interpretations of “vague terms or ancillary

provisions.” Whitman v. American Trucking Assocs.,

531 U.S. 457, 468 (2001). When this happens, the executive is allowed to promulgate rules that would not

be enacted or approved by either today’s legislature or

the legislature that passed the enabling statute. Yet it

is difficult for the legislature to reassert itself and

overturn these executive rulemakings “since the very

process set out in the Constitution to prevent policy

from being created without widespread support

[namely, bicameralism and presentment] stands in the

way.” Nielson, 150 Daedelus at 148.. In other words,

courts allow the executive to bring a bazooka to the

checks-and-balances knife fight.

B. Courts’ refusal to enforce the nondelegation doctrine discourages bipartisanship and harms the legislative process.

Second, when courts fail to enforce the nondelegation doctrine—especially in the face of egregious executive overreach such as the EPA’s interpretation of

§7411(d) here—they do violence to the legislative process itself by making it more difficult for legislators to

engage in bipartisanship and compromise. When laws

are passed under such conditions—if they are passed

at all—they tend to be omnibus bills like the PATRIOT

ACT or the Affordable Care Act that delegate even

11

more discretion to agencies. As Third Circuit Judge

Kent A. Jordan put it, “[t]he consequent aggrandizement of … executive power at the expense of the legislature leads to perverse incentives, as [the legislature]

is encouraged to pass vague laws and leave it to agencies to fill in the gaps, rather than undertaking the difficult work of reaching consensus on divisive issues.”

Egan v. Delaware Riv. Port. Auth., 851 F.3d 263, 279

(3d. Cir. 2017) (Jordan, J. concurring).

Passing legislation is hard, especially during times

of divided government. But when courts allow the executive branch to enact their favored policy preferences through contortions of opaque statutory terms,

they make this process harder by removing the builtin incentives for legislators to engage in good faith negotiations with their colleagues on the other side of the

aisle. Legislators who belong to the party that controls

the White House or Governor’s mansion can achieve

their desired policy outcomes without having to compromise, allowing them to appear ideologically consistent in order to please their more extreme donors

and placate their base. 3 Meanwhile, the opposition

party—having been stripped of an important bargaining chip—has no reason to cede any more ground to

their political opponents. Plus, they have two tailormade campaign issues: reversing executive actions

3 See, e.g. Nancy Pelosi, Pelosi Statement on Fourth Anniversary

of Implementation of DACA (Aug. 15, 2016) (“With the implementation of President Obama’s Deferred Action for Childhood Arrivals four years ago today, we honored our values as a nation.”)

12

they disagree with and excoriating the incumbent administration for executive overreach. 4 In other words,

both sides are incentivized to not legislate.

This has led to what two scholars have called “the

fall of lawmaking by legislation.” Jonathan H. Adler &

Christopher J. Walker, Delegation & Time, 105 Iowa

L. Rev. 1931, 1937 (2020). Regardless of whether one

measures the total number of public laws passed or the

number of major legislative initiatives enacted, Congressional productivity has plummeted over the last

several decades. 5 Meanwhile, the number of federal

regulations has ballooned. In 2016, “federal agencies

reached a new regulatory record by filling over 95,000

pages of the Federal Register with adopted rules, proposed rules, and notices—nearly 20 percent more than

the 80,000 or so pages published in 2015.” Id at 1974.

This problem is cyclical. “Without regular legislative

activity, agencies are forced to get more creative with

stale statutory mandates to address new problems and

changed circumstances.” Id at 1937. But the more creative agencies get, the more disincentivized legislatures will be to legislate on their own.

Consider the history of the ill-fated DREAM Act.

In 2001, Senator Orin Hatch (R-UT) introduced the

4 See, e.g. Sheldon Whitehouse, Surveillance Laws & Presidential

Power (Jan. 3, 2008) (criticizing President Bush’s executive order

authorizing wiretaps of American citizens).

5 See, e.g. Ezra Klein, Congressional Disfunction, Vox (May 15,

2015) (“[R]ecent congresses have been some of the least productive since 1948, when we began keeping track of these numbers),

https://www.vox.com/2015/1/2/18089154/congressional-dysfunction; J. Tobin Grant & Nathan J. Kelly, Legislative Productivity

of the U.S. Congress, 1789-2004, 16, Pol. Analysis 303 (2004)

(“Overall productivity . . . is currently at a level not seen since the

1920s”).

13

first bill that, if passed, would have created a way for

so-called Dreamers—those undocumented immigrants

who were brought to this country illegally as children

and have lived a majority of their lives here—to adjust

their immigration status and obtain a green card, contingent on their completing certain prerequisites. 6 The

bill, which was co-sponsored by twelve Democrats and

six other Republicans, was reported favorably out of

committee, but never received a vote from the full Senate. Nevertheless, it jump-started a decade-long debate over the status of Dreamers and whether

Congress should create a way for them to obtain legal

status. Between 2001 and 2011, at least twenty-six

versions of this bill were introduced in Congress, at

least one in the House and one in the Senate during

each two-year term. 7 Nearly three-quarters of these

were bipartisan. 8

The closest the DREAM Act came to becoming law

was in 2010, when different versions of the bill passed

both the House and the Senate, but Congress failed to

reconcile them. 9 Nevertheless, momentum was build-

6 S. 1291 - 107th Congress (2001-2002): DREAM Act, S. 1291,

107th Cong. (2002), https://www.congress.gov/bill/107th-congress/senate-bill/1291.

7 For a summary of all of these bills, see Unsuccessful Dreamers

Bills 2001-2017, https://tinyurl.com/s782ydjd.

8 Id.

9 Actions - H.R.5281 - 111th Congress (2009-2010): Removal Clarification Act of 2010, H.R.5281, 111th Cong. (2010),

https://www.congress.gov/bill/111th-congress/house-bill/5281/allactions.

14

ing. The following year, four different bills were introduced. The public supported the idea, 10 and it seemed

only a matter of time before it would become law.

Instead, President Obama decided to act unilaterally. He instructed the Secretary of Homeland Security

to issue an executive memorandum titled “Exercising

Prosecutorial Discretion with Respect to Individuals

Who Came to the United States as Children.” Known

colloquially as Deferred Action for Childhood Arrivals,

or DACA, the program allowed Dreamers who satisfied certain requirements to apply for work permits

and renewable two-year deferments from prosecution.

Reaction to the President’s decision were mixed, with

even Saturday Night Live portraying the President’s

action as an excessive power grab. 11

The Congressional response to DACA was immediate. After over a decade of working towards a bipartisan compromise, interest in the DREAM Act on

Capitol Hill appeared to dry up overnight. While there

had been dozens of versions of the DREAM Act introduced in Congress during the years leading up to President Obama’s executive memorandum, there was only

a single attempt in the next six years to get the

DREAM Act passed. While that effort, spearheaded by

10 See Ruy Teixeira, Americans Support Immigration, Center for

American Progress (Oct. 3, 2011) (finding that 57% of Americans

supported the DREAM Act), https://www.americanprogress.org/article/public-opinion-snapshot-americans-support-immigration/.

11 Saturday Night Live, How a Bill Does Not Become a Law, (Nov.

23, 2014) (parodying School House Rock’s “How a Bill Becomes a

Law” and depicting President Obama repeatedly shoving Kenan

Thompson dressed as a bill down the Capitol’s steps),

https://www.youtube.com/watch?v=JUDSeb2zHQ0.

15

the so-called “Gang of Eight,” got another version

through the Senate, the House refused to take it up. 12

This lesson is obvious: when the executive branch

overreaches, the legislature’s natural inclination is not

to fight back but to pull back. This is because executive

overreach distorts the conditions and processes that

lead to effective legislative compromise over time.

II.

The nondelegation doctrine is flourishing

in the state courts, and this case presents

an excellent vehicle for the Court to revitalize that doctrine in federal courts.

Fortunately, judicial application of the nondelegation doctrine can check this executive meddling, as the

States—as our laboratories of democracy, see Oregon

v. Ice, 555 U.S. 160, 171 (2009); New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)—have demonstrated. State courts have deployed nondelegation as a serious constitutional

principle throughout their history, showing that it is

both functional and practical. Indeed, through much of

American history, including since Panama Refining

and Schechter Poultry, state courts have “interven[ed]”

to invalidate legislative delegations “when the legislature had ceded power that threatened to undermine

the system of checks and balances.” Jason Iuliano &

Keith E. Whittington, The Nondelegation Doctrine:

Alive and Well, 93 Notre Dame L. Rev. 619, 621 (2017);

see also Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935);

12 S.744 - 113th Congress (2013-2014): Border Security, Economic

Opportunity, and Immigration Modernization Act, S.744, 113th

Cong. (2013) https://www.congress.gov/bill/113th-congress/senate-bill/744; see also

16

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935).

A. Reports of the nondelegation doctrine’s

death have been greatly exaggerated.

One of the most pervasive myths in constitutional

law today is that the nondelegation principle, derived

from the separation of powers and the three Vesting

Clauses, is dead. One such scholar maintains that “the

nondelegation doctrine ... is basically a dead letter.”

Matthew C. Stephenson, Public Regulation of Private

Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 145 (2005).

Another contends that “we live in a constitutional

world where the nondelegation doctrine remains

dead.” Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian

Difficulty, 145 U. Pa. L. Rev. 759, 839 (1997). Others

suggest that the nondelegation principle is “a constitutional lost cause,” Cynthia R. Farina, Deconstructing

Nondelegation, 33 Harv. J.L. & Pub. Pol’y 87, 88

(2010), one that might “do more harm than good to [ ]

clients’ interests” by testing judicial patience and taxing the credibility of a litigant’s more meritorious

claims, Kenneth Culp Davis, Administrative Law and

Government 55 (1960). Slightly more charitably, two

scholars have regarded nondelegation—at least prior

to Gundy—as being “on life support, with the Supreme

Court neither willing to pull the plug nor prepared to

revive it.” Larry Alexander & Saikrishna Prakash,

Delegation Really Running Riot, 93 Va. L. Rev. 1035,

1038 (2007). These scholars also called nondelegation

a “nondoctrine.” Id. at 1036.

17

Nothing could be further from the truth.

Contrary to popular belief, the nondelegation doctrine has not only survived, but thrived over the last

eighty years. Scholars just haven’t been looking in the

right place, too preoccupied with Supreme Court litigation. The statistics speak for themselves. According

to one study of nondelegation challenges heard by

state supreme courts and lower federal courts, between 1940 and 2015 there were more than 5000 nondelegation challenges. While these challenges

prevailed in federal courts just 3% of the time, they

succeeded in state courts 16% of the time. See Iuliano

& Whittington, supra, at 636. That’s a lot for a doctrine

that’s supposed to be dead or on life support.

As such, it is obvious the New Deal did not wreak

havoc on nondelegation challenges. “[N]ondelegation

cases were just as common—if not more so—after the

New Deal as they had been before.” See id. at 633. In

fact, since the “switch in time,” federal and state courts

have nullified about 750 laws—or approximately 10

statutes a year—on nondelegation grounds. See id. Additionally, around 15% of all nondelegation challenges

leveled in federal and state courts have been successful. See id. at 636. Given that during this same period,

only 20% of all constitutional challenges were successful before this Court and a miniscule proportion to onethird of all constitutional challenges were successful

before state supreme courts, this 15% figure is not unusual. See id. at 636–37. Instead, it indicates that the

nondelegation doctrine remains a mainstream constitutional principle.

In any event, even a low statistical rate of success

would not mean that the nondelegation principle has

been vitiated of its constitutional soundness any more

18

than the 10% success rate of Fourth Amendment

claims has sounded the death knell for probable cause,

criminal warrants, or anything else related to that

constitutional provision. See Nancy Leong, Making

Rights, 92 B.U. L. Rev. 405, 426 (2012). The same is

true for the 10% success rate for First Amendment religious accommodation claims against public education requirements or the less than 1% success rate in

federal courts and 5% success rate in state courts for

habeas claims. See Lewis M. Wasserman, Overcoming

Obstacles to Religious Exercise in K-12 Education, 40

J. Legis. 96, 133–34 (2014).

The persistence of nondelegation claims even after

the New Deal cannot be explained by differences in the

kinds of delegations. With respect to the type of power

that was delegated after to the New Deal: Regulation

(58%), Taxation (11%), Spending (7%), and Other

(25%). That was not a substantial change from the preNew Deal percent figures: Regulation (52%), Taxation

(16%), Spending (7%), and Other (25%). See Iuliano &

Whittington, supra, at 640. Likewise, regarding the

objects of delegation, after the New Deal, the delegations were: Executive (3%), Agency (62%), Judiciary

(9%), Local Government (11%), Voters (3%), and Other

(13%). Before the New Deal, those figures had been:

Executive (5%), Agency (38%), Judiciary (13%), Local

Government (25%), Voters (11%), and Other (10%). See

id. at 641. Certainly, “with the rise of the administrative state [principally during the Gilded Age], legislatures took to delegating authority horizontally (e.g., to

executive agencies) rather than vertically (e.g., to

lower levels of government or to the voters).” See id.

(footnote omitted). But that does not correlate with

any waning of the power of nondelegation challenges

as a serious constitutional proposition.

19

Viewed in this light, nondelegation does not sound

like a dead or even a moribund doctrine. After all, all

aspects of the data accumulated shows that “the nondelegation doctrine not only survived the New Deal

era, but increased in strength for decades after.” See

id. at 633. At most, it is a somewhat dormant doctrine

in this Court, awaiting the right moment—crystallizing the attendant constitutional imperatives of text,

history, and principles of power diffusion and accountability—to be restored to a vital life. That moment to

bring it out of its relative desuetude has arrived.

1. State courts have been paving the

way by example.

The experience of the state courts in the nondelegation space is most promising and should be instructive. State courts have been “strik[ing] down …

statute[s] on nondelegation grounds” when “the legislature had … abdicated its responsibility to the public

or shielded itself from electoral accountability.” See id.

at 621. Just between the 1990–2010 period, state

courts invalidated 22 delegations of lawmaking, with

Virginia, Texas, Florida, and Oklahoma showing particularly fecund activity on this front. See Edward H.

Stiglitz, The Limits of Judicial Control and the Nondelegation Doctrine, 34 J. L. Econ. & Org. 27, 43, 44

(2018).

The States have also shown us that nondelegation

works well in the real world by diffusing power among

the branches of government and holding the appropriate actors accountable by preventing them from muddying attribution and responsibility of specific actions

or omissions. It is neither particularly difficult nor

20

complicated—and is in fact less so than the current “intelligible principle” standard that is often applied by

this Court.

The States’ adherence to the nondelegation principle has deep roots and a powerful provenance. See, e.g.,

Steen v. Appellate Div., Superior Court, 331 P.3d 136,

145 (Cal. 4th 2014) (emphasizing the importance of

“maintaining clear lines of political accountability”

during its evaluation of the constitutionality of a delegation of legislative power); Schloss Poster Advertising

Co. v. City of Rock Hill, 190 S.C. 92 (1939) (observing

that “the city is clothed with the uncontrolled power to

capriciously grant the privilege to some and deny it to

others; to refuse the application of one landowner or

lessee and to grant that of another, when for all material purposes, the two are applying for precisely the

same privileges under the same circumstances.”);

State v. Denny, 21 N.E. 252, 258 (Ind. 1889) (finding a

legislative delegation unconstitutional because it

granted a politically unaccountable board “absolute

and exclusive control over the construction of all sewers, the water supply, and supply of lights, with no

voice in the matter left to the people of the city”); Marr

v. Enloe, 9 Tenn. 452, 453 (1830) (delegating to courts

the power to set taxes “upon all polls and property subject to taxation by the laws of this State”); State v.

Field, 17 Mo. 529, 534 (1853) (invalidating legislative

delegation to county courts to suspend a law’s operation and observing “that the power which has been exercised by the court ... and which has the effect of

determining what law shall be in force in the tribunals

of the state ... is a part of the legislative power which

cannot be entrusted to the county courts.”).

21

In the modern day, the States have recognized, under their own constitutions (whose separation of powers provisions are materially indistinguishable from

their federal counterpart), that nondelegation is a real

doctrine with potent bite and is very much a player in

the state constitutional calculus. It is worth examining

several state court decisions that are emblematic of

these precepts. Their core principle can thus be

summed up (as it has been by the Supreme Court of

Florida): Whereas “technical matters of implementation” are permissible spheres of executive functioning,

the legislature may not delegate the “fundamental policy decision.” Brown v. Apalachee Reg. Planning Council, 560 So. 2d 782, 785 (1990). Nor should there be

anything surprising about this important distinction,

which was much lauded and honored in the federal

nondelegation doctrine before its neglect.

Justice Scalia 13 noted that “[t]he whole theory of

lawful congressional ‘delegation’ is not that Congress

is sometimes too busy or too divided, and can therefore

assign its responsibility of making law to someone

else.” Mistretta v. United States, 488 U.S. 361, 417

(1989) (dissenting opinion). Those excuses would obviously be constitutionally unavailing. The theory is rather “that a certain degree of discretion … inheres in

most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its

statutory commands, to determine—up to a point—

how small or how large that degree shall be.” Id.

(Scalia, J., dissenting) (collecting permissible-delegation cases). “The true distinction,” this Court observed

13 See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)

(Scalia, J.); Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia,

J., dissenting).

22

in the late 19th century, “is between the delegation of

power to make the law, which necessarily involves a

discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be

done; to the latter, no valid objection can be made.”

Field v. Clark, 143 U.S. 649, 693–94 (1892) (cleaned up

and emphasis added). As the Field Court also observed, many federal statutes “depend[] on the discretion of some person or persons to whom is confided the

duty of determining whether the proper occasion exists

for executing them. But it cannot be said that the exercise of such discretion is the making of the law.” Id. at

694 (emphasis added).

A recent Michigan Supreme Court decision exemplifies this crucial distinction. See In re Certified Questions From United States Dist. Ct., W. Dist. of

Michigan, D. Div., 958 N.W.2d 1 (Mich. 2020). A Michigan statute (since repealed via an initiated law)

stated that, after declaring a state of emergency, “the

governor may promulgate reasonable orders, rules,

and regulations as he or she considers necessary to

protect life and property or to bring the emergency situation within the affected area under control.” Mich.

Comp. Laws § 10.31(1). Such “orders, rules, and regulations” ceased “to be in effect upon declaration by the

governor that the emergency no longer exists.” Id. Governor Whitmer’s COVID-19 state-of-emergency and

lockdown orders were issued, in part, under this statute. She also issued several orders restricting public

gatherings and business activities and imposing other

limitations on Michiganders.

The Michigan Supreme Court pinpointed the pressure point of the whole dispute. It reasoned:

23

The consequence of such illusory ‘non-standard’

standards in this case is that the Governor possesses free rein to exercise a substantial part of

our state and local legislative authority—including police powers—for an indefinite period

of time. There is, in other words, nothing within

either the ‘necessary’ or ‘reasonable’ standards

that serves in any realistic way to transform an

otherwise impermissible delegation of legislative power into a permissible delegation of executive power.

958 N.W.2d supra, at 24. And this is never truer than

when the pertinent “statute … delegates power of immense breadth” and “is devoid of all temporal limitations.” Id. And this makes sense because, as Justice

Brennan once observed, “[t]he area of permissible indefiniteness narrows ... when the regulation invokes

criminal sanctions and potentially affects fundamental rights.” United States v. Robel, 389 U.S. 258, 275

(1967) (Brennan, J., concurring).

Other States are aligned with Michigan on nondelegation. State laws conferring power upon the executive branch are required to “clearly announce

adequate standards to guide ... in the execution of the

powers delegated.” Lewis v. Bank of Pasco Cnty., Fla.,

346 So.2d 53, 55–56 (Fla. 1976). To this end, “[t]he

statute[s] must so clearly define the power delegated

that the [executive] is precluded from acting through

whim, showing favoritism, or exercising unbridled discretion.” Id. Because a Florida law gave the Department of State absolute and unbridled discretion to

allow a candidate to withdraw after the forty-second

day before an election, the state Supreme Court de-

24

clared it violative of the nondelegation principle emanating from the State Constitution’s separation of

powers. See Florida Dept. of State v. Martin, 916 So.

2d 763 (2005).

Similarly, the same court held that a Florida law

permitting bank or trust company records to be made

public so long as the Comptroller consents was an unconstitutional delegation of legislative authority because “[t]here are no restrictions, limitations, or

guidelines provided in the statute to limit or regulate

the action of the department in granting ... [or] withholding consent.” Lewis, 346 So.2d supra, at 55. Another Florida law was invalidated for the same basic

reason because it let the Governor decide, free from

any statutory criteria, which deputy commissioners to

fire. See Orr v. Trask, 464 So.2d 131, 134 (Fla. 1985).

And in the tragic Terry Schiavo case, the Florida

Supreme Court invalidated a legislative delegation of

authority to the Governor to “issue a one-time stay to

prevent the withholding of nutrition and hydration

from a patient.” Schiavo, 885 So.2d supra, at 328–29,

336. Although the Florida law at issue spelled out eligibility criteria for this provision to be triggered, it did

not supply any standards in accordance with which the

Governor might determine whether he should issue a

stay and for what duration. See id. at 334. Applying

the nondelegation doctrine, the court held that omission was fatal. Similarly, the Florida courts have noted

that the “specificity of standards and guidelines may

depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards.” Askew v. Cross Key Waterways, 372 So.2d 913,

918 (Fla. 1978).

25

That is also the approach taken by the South Carolina Supreme Court, which invalidated a legislative

delegation to the Highway Department because it was

standardless. See S.C. State Hwy. Dept. v. Harbin, 226

S.C. 585, 595–96 (1955). That delegation allowed the

agency to decide, under some circumstances, when

someone’s driver’s license could be revoked or suspended. See id. at 592–93. All the Highway Department had to go on was its own sense of when “for cause

satisfactory” for a revocation or suspension had been

met. See id. at 593. The South Carolina legislature had

impermissibly delegated lawmaking authority when it

when it committed policymaking to the executive.

State courts have not been persuaded by arguments that agencies will always exercise sound wisdom and ethics. Even the sincerest assurance that an

administrative agency would not act “arbitrarily or capriciously” and would act only “when necessary for the

safety of the public” does not say anything about

whether the legislative delegation itself is permissible.

Id. at 595. So when the New Hampshire Supreme

Court considered a statute almost identical to Harbin’s—the statute allowed the executive to suspend a

driver’s license “for any cause which he may deem sufficient”—the court struck down that legislative delegation. Guillou v. State, 127 N.H. 579, 580, 585 (1986).

The administrative officialdom’s assurances of

technical expertise, exemplary judgment, good will,

and good faith cannot save a delegation of legislative

power. At least not in state courts. As the Supreme

Court of Washington observed in 1924, “[w]hen courts

are considering the constitutionality of an act, they

should take into consideration the things, which the

26

act affirmatively permits, and not what action an administrative officer may or may not take.” Northern

Cedar Co. v. French, 131 Wash. 394, 230 P. 837, 843

(1924). To put it directly, “[t]he presumption that an

officer will not act arbitrarily but will exercise sound

judgment and good faith cannot sustain a delegation

of unregulated discretion.” 42 Am. Jur., Public Administrative Law, Section 45.

For its part, the Kentucky Supreme Court struck

down in Legislative Research Comm’n v. Brown, Ky.,

664 S.W.2d 907 (1984), a state law delegating legislative power to the Legislative Research Commission

when the legislature was adjourned on the ground that

this delegation was devoid of “standards controlling

the exercise of administrative discretion.” Id. at 915.

That court also invalidated a state law empowering

the Transportation Cabinet with the authority to stop

the spread of moving or flashing lighted signs because

that law provided “no guidance” about how this authority was to be used. Flying J Travel Plaza v. Commonwealth, Ky., 928 S.W.2d 344, 350 (1996).

The Kentucky Supreme Court additionally invalidated a legislative delegation to the Transportation

Secretary regarding the regulation of billboard signs

on the ground that this law did not contain “sufficient

standards controlling the exercise of that discretion.”

Diemer v. Commonwealth, Ky., Transp. Cabinet, Dep’t

of Highways, 786 S.W.2d 861, 865–866 (Ky. 1990). And

in nullifying a legislative delegation concerning pension benefits to an executive agency, the same court

called out that delegation’s lack of standards or “sufficient guidance” to the executive. Board of Trustees v.

Att’y. Gen. of Com., 132 S.W.3d 770, 785 (Ky. 2003).

27

Striking down a legislative delegation to a board to

determine the appropriate wage rates on grounds

other than nondelegation, the Kentucky Supreme

Court nonetheless observed:

There is simply nothing in this legislation which

offers any clue to what the legislature intended

should guide and control th[at] [b]oard’s determination of proper ‘prevailing wage’ rates. Not

only is the Board left completely adrift ... but no

one, including this court, is furnished any criteria by which to determine whether the [delegated body] is carrying out the assumed

legislative policy as the legislature intended.

Kerth v. Hopkins Cty Bd. of Ed., 346 S.W.2d 737, 741

(Ky. 1961).

Kentucky’s Court of Appeals struck down a Commonwealth statute that had empowered a county

judge to issue pardons under inscrutable “terms and

conditions.” Murphy v. Cranfill, 416 S.W.2d 363, 365—

66 (Ky. Ct. App. 1967). That court rejects nondelegation challenges when the statute at issue clearly states

“the subject, nature and extent” of the delegation—

“declar[ing] its policy and prescrib[ing] standards for

the guidance of the administrative agency.” Young v.

Willis, 203 S.W.2d 5, 8 (Ky. Ct. App. 1947).

In each of these cases, the state courts have drawn

the same distinction of which this Court in Field v.

Clark and Justice Scalia in Mistretta spoke: When “the

legislative body has prescribed standards or safeguards that so confine the administrative body’s powers that it can be said that they do not exceed the scope

of mere details in the execution,” the legislative

28

scheme will be sustained; otherwise, it will be invalidated. Miller v. Covington Dev. Authy., 539 S.W.2d 1,

4 (Ky. 1976). Or, in the words of Michigan’s highest

court, “the standards prescribed for guidance [must be]

as reasonably precise as the subject-matter requires or

permits.” Osius v. City of St. Clair Shores, 344 Mich.

693, 698, 75 N.W.2d 25 (1956). Some subject matters

naturally require more detailed directions for technical implementation than others do—that in itself

does not turn a technical guide for implementation

into a fundamental policy decision, or vice versa. The

catch, of course, is that “[e]ven where a general approach would be more practical than a detailed scheme

of legislation, enactments may not be drafted in terms

so general and unrestrictive that administrators are

left without standards for the guidance of their official

acts.” Bush v. Schiavo, 885 So.2d 321, 333 (Fla. 2004),

cert. denied, 543 U.S. 1121 (2005) (quoting State, Dep’t

of Citrus v. Griffin, 239 So.2d 577, 581 (Fla. 1970)).

State courts have examined these questions closely

and have produced some deeply reasoned opinions

that would benefit this Court’s consideration as they

seek to resolve the nondelegation issue here. They provide greater support—in addition to this Court’s own

precedent—that the doctrine is not just functional but

also that it is deontologically required and sound as a

constitutional proposition. Justice Brandeis’ laboratories of democracy have done their work.

Here, it is clear Congress did not “prescribe[] standards or safeguards [for the EPA] that so confine [its]

powers that it can be said that they do not exceed the

scope of mere details in execution.” Miller 539 S.W.2d,

supra, at 4. This Court should therefore reverse the

D.C. Circuit’s affirmation of the CPP.

29

CONCLUSION

This Court should apply the nondelegation doctrine

in order to reverse the D.C. Circuit’s decision and preserve the unique interests of the legislature.

Respectfully submitted,

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

JAMES A. HEILPERN

RIDDHI DASGUPTA

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

December 20, 2021