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

Nos. 20-1530, 20-1532, 20-1778, 20-1780

IN THE

Supreme Court of the United States

-------------STATE OF WEST VIRGINIA, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY et al.,

Respondents.

(For Continuation of Caption, See Inside Cover)

__________

On Writs of Certiorari the U.S. Court of Appeals

for the District of Columbia Circuit

AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE IN

SUPPORT OF PETITIONERS

December 20, 2021

Philip Hamburger

Mark Chenoweth

Brian Rosner

(Counsel of Record)

Richard Samp

New Civil Liberties Alliance

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Brian.Rosner@NCLA.legal

Counsel for Amicus Curiae

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

et al.,

Respondents.

__________________

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

et al.,

Respondents.

__________________

NORTH DAKOTA,

v.

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

et al.,

Respondents.

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS ............................................1

STATEMENT OF THE CASE ....................................2

SUMMARY OF THE ARGUMENT ............................8

ARGUMENT .............................................................10

I. The

Nondelegation

Doctrine

Is

Misleading and Fictitious and Should Be

Abandoned ......................................................10

A. The Doctrine Disguises What It Does

and Why .....................................................10

B. The Term “Delegation” Falsely Implies

an Easily Revocable Transfer ................... 11

C. The Doctrine Rests on Legal Fictions .......13

II. Congress May Not Divest Itself of Its

Legislative Power ...........................................19

A. The Principles of Consent and

Separation of Powers ................................20

B. The Framers’ Rejection of All

Congressional Delegations ........................23

ii

C. “Shall Be Vested” Textually Mandates

That All Legislative Powers Must Be

in Congress, Not Elsewhere ......................25

D. The Evasion of Bicameralism and

Presentment ..............................................27

E. The Executive May Not Exercise

Legislative Power ......................................28

III. Efficiency Cannot Justify this Court in

Failing to Uphold the Constitution ................30

CONCLUSION ..........................................................32

iii

TABLE OF AUTHORITIES

Cases

American Elec. Power Co. v. Connecticut, 564

U.S. 410 (2011).........................................................7

Batterton v. Francis, 432 U.S. 416 (1977) ................14

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .........14

Graham Cty. Soil & Water Conservation Dist. v.

U.S. ex rel. Wilson, 559 U.S. 280 (2010) ...............14

Hayburn’s Case, 2 U.S. 409 (1792) ...........................28

Humphrey’s Executor v. United States, 295 U.S.

602 (1935) ...............................................................14

Miller v. Mayor of New York, 109 U.S. 385

(1883) ......................................................................30

United States v. Grimaud, 220 U.S. 506 (1911) .......14

West Virginia v. EPA, 577 U.S. 1126 (2016) ..............4

Yakus v. United States, 321 U.S. 414 (1944) ...... 16, 30

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952).......................................................31

Statutes

42 U.S.C. § 7651 ........................................................31

42 U.S.C. § 7411 ................................................ passim

42 U.S.C. § 7491 ........................................................31

iv

Other Authorities

A Report of the Record Commissioners of the

City of Boston, Containing the Boston Town

Records, 1758 to 1769, at 261

(Boston: Rockwell & Churchill, 1886) ...................21

Confucius, Analects, Book XIII, Analect 13.3, in

James Legge, Confucian Analects: The Great

Learning, and The Doctrine of the Mean

(Dover Publications 1971) .....................................10

D. Schoenbrod, Power without Responsibility

(Yale U. Press 1993) ..............................................27

Eric A. Posner and Adrian Vermeule, Interring

the Nondelegation Doctrine, 69 U. Chi. L.

Rev. 1721 (2002) ....................................................13

Evan Lehmann &

Nathaniel Massey, Obama Warns Congress to

Act on Climate Change, or He Will, Scientific

American (Feb. 13, 2013).........................................3

James M. Landis, The Administrative

Process (1966).........................................................13

Kenneth Culp Davis, 2 Administrative Law

Treatise § 7:8 at 36 (2d ed. 1979) ..........................14

Philip Hamburger, Nondelegation Blues, sect.

XI.A. (2021) ............................................................21

The Federalist (J. Cooke ed. 1961) ...........................27

v

Constitutional Provisions

U.S. Const, art. I, § 7 ................................................. 11

U.S. Const, art. II, §1 ................................................28

U.S. Const., art. I, §1 .................................................25

U.S. Const., art. II, §1 ...............................................25

U.S. Const., art. III, §1 ..............................................25

1

INTEREST OF AMICUS 1

The New Civil Liberties Alliance (NCLA) is a nonprofit, non-partisan civil rights organization devoted

to defending constitutional freedoms from violations

by the administrative state. The “civil liberties” of the

organization’s name include rights at least as old as

the U.S. Constitution itself, such as jury trial, due process of law, the right to be tried in front of an impartial

and independent judge, and the right to have laws

made by the nation’s elected lawmakers through constitutionally prescribed channels (i.e., the right to selfgovernment). These selfsame civil rights are also very

contemporary — and in dire need of renewed vindication — precisely because Congress, the President, federal administrative agencies, and even sometimes the

Judiciary, have neglected them for so long.

NCLA aims to defend civil liberties — primarily by

asserting constitutional constraints on the administrative state. Although the American People still enjoy the shell of their Republic, there has developed

within it a very different sort of government — a type,

in fact, that the Constitution was designed to prevent.

This unconstitutional state within the Constitution’s

United States is the focus of NCLA’s concern.

1 Pursuant to Supreme Court Rule 37.6, NCLA states that no

counsel for a party authored any part of this brief, and that no

one, other than the amicus curiae, its members, or its counsel,

financed the preparation or submission of this brief. All parties

consented to the filing of this brief.

2

The decision below is typical of the process by

which the People’s right to self-government has been

eroded: Having failed to achieve a policy goal by convincing Congress to enact a law, the President directed one of his administrative agencies to “enact” by

regulation what Congress had refused to legislate,

and the Judiciary (the panel below) acquiesced.

The Environmental Protection Agency (EPA) argues that its statutory authority should be read

broadly, that the Clean Air Act grants EPA a license

to undertake virtually any program it deems appropriate to address climate-change concerns. But if construed so broadly, the Act would divest Congress of its

power to legislate on air-quality issues, in violation of

Article I, § 1 of the Constitution. Adherence to the

separation-of-powers principles embedded in the Constitution is, in NCLA’s view, essential to maintenance

of our Republic’s representative form of government.

STATEMENT OF THE CASE

The continuing use of fossil fuels to generate electricity raises political issues for the American People

and their elected representatives to deliberate and decide. Should the electricity-generating industry be decarbonized (fossil fuel powered plants closed and replaced by plants powered by renewable energy)?

Should decarbonization occur due to market forces, or

should it be imposed by government, or a combination

3

of the two? What should the timetable be, and who

should bear the transition costs? J.A. 220. 2

In 2009, the American People—acting through

Congress—addressed the issue of carbon dioxide

emissions. The House passed proposed legislation.

The Senate chose not to. App. J.A. 220.

The People’s inability to agree and enact legislation displeased then-President Obama. In response, in

the words of Judge Walker, dissenting below, the

President “ordered the EPA to do what Congress

wouldn’t.” J.A. 222. 3

EPA complied. In 2015, EPA formulated “regulations and standards that … came to be known as the

Clean Power Plan” (“CPP”). J.A. 86. Invoking EPA’s

Clean Air Act authority, the CPP determined that the

“best system” to reduce carbon emissions was radical

“generation shifting”—effectively replacing coal-fired

power plants with plants fueled by natural gas and

replacing all fossil fuel-based electricity with “electricity generated from zero-emitting renewable-energy

sources.” J.A. 86, 223.

2 When using the term “J.A.” herein, NCLA refers to the Joint

Appendix in No. 20-1530, 20-1531, 20-1778, and 20-1780.

3 See J.A. 222, n.20 (“‘But if Congress won’t act soon to protect

future generations, I will,’ Obama said. ‘I will direct my Cabinet

to come up with executive actions we can take, now and in the

future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more

sustainable sources of energy.’”) (quoting Evan Lehmann &

Nathaniel Massey, Obama Warns Congress to Act on Climate

Change, or He Will, Scientific American (Feb. 13, 2013)).

4

President Obama and leaders of the environmental

movement were ecstatic: See e.g., J.A. 225-226, 227

(terming the CPP “historic” and “the single most important step America has ever taken in the fight

against global climate change”).

Those opposed to the speed of this EPA-imposed

decarbonization were less enthusiastic. They estimated that the CPP would increase electricity costs by

$214 billion and cost a further $64 billion to replace

shuttered capacity. J.A. 226. The EPA itself “predicted that its rule would cost billions of dollars and

eliminate thousands of jobs.” Id.

In 2016, opponents challenged the CPP in the D.C.

Circuit. J.A. 88. They argued that Section 7411(d) did

not authorize the EPA to impose generation shifting

of such industry-reshaping magnitude. J.A. 226. The

appeals court denied a motion to stay implementation

of the CPP. J.A. 223.

In “an unprecedented intervention,” App. 171a172a, this Court stayed the enforcement of the CPP,

perhaps recognizing that absent a stay companies

would have to comply before the constitutional questions could be heard. West Virginia v. EPA, 577 U.S.

1126 (2016). The stay implied that the CPP might well

not survive constitutional review. J.A. 223.

Following President Trump’s election in 2016, EPA

repealed the CPP and replaced it with the Affordable

Clean Air Energy Rule (the “ACE Rule”) in 2019. J.A.

89. EPA determined that it was “statutorily compelled” to repeal the CPP because, in its view, Section

5

7411(d) “unambiguously” bars generation shifting;

that is, it limits the “best system of emission reduction” to only those measures that can be put into operation at an existing power plant. Also premised on

section 7411(d) authority to regulate power plant

emissions, the ACE Rule addressed only coal-fired

generating plants. J.A. 90.

EPA read Section 7411(d) as limiting the “best systems” analysis to physical improvements at a plant,

which would preclude off-site measures such as “generation shifting” (a phrase which does not appear in

the Clean Air Act). J.A. 89, 106.

In reading the statute to contain this limitation,

EPA noted that the alternative reading that allowed

generation shifting, such as that required by the repealed CPP, would violate the “major questions doctrine”—a clear-statement principle of statutory construction saying Congress must specifically authorize

any rule with vast economic and political consequences. J.A. 89, 135. In EPA’s judgment, a CPP-like

generation-shifting rule would unquestionably have

such vast consequences—billions of dollars of impact

on regulated parties and the economy, increased costs

for every electricity user, and a re-balancing of authority between federal agencies and the States. J.A. 136.

Those opposing the ACE Rule—largely the same

parties who had enthusiastically supported the CPP

in 2015—now took their turn to sue in the court below.

6

J.A. 224. 4 They argued that the ACE Rule was unlawful because it was premised on EPA’s mistaken belief

that, in enacting section 7411, Congress had precluded generation shifting as an emissions reduction

measure. J.A. 95.

The court below agreed with the opponents of the

ACE Rule. J.A. 213-214 (“The ACE Rule expressly

rests on the incorrect conclusion that the plain statutory text clearly foreclosed the Clean Power Plan …”).

In the court’s view, Congress, in Section 7411(d), had

specifically authorized the EPA to consider and impose generation shifting as a tool of emissions reduction. J.A. 132.

Congress had granted this authorization by directing the EPA to determine the “best system of emission

reduction.” J.A. 120 (quoting 42 U.S.C. § 7411(a)(1)).

The court stated that “Section 7411(a)(1)’s prescription of the ‘best system of emission reduction’ is striking for its paucity of restrictive language.” Id. The

court also stated that the section’s lack of specificity is

in marked contrast to other sections of the statute, in

which Congress had identified the “specific categories

of emission reduction tools” to be applied. Id.

The court concluded that Section 7411’s grant of

authority was not subject to similar limitations. J.A.

4 See also ibid. (“Arrayed against [those filing suit] were many

states and groups that had opposed the old rule. And so once

again, politically diverse states and politically adverse special interest groups brought their political brawl into a judiciary designed to be apolitical.”)

7

108 and 120. Section 7411(a)(1) “imposed no limits on

the types of measures the EPA may consider beyond

three additional criteria: cost, any nonair quality

health and environmental impacts, and energy requirements.” J.A. 108. Section 7411(a)(1) was a

“catch-all” provision, intended to apply to situations

that, at the time of enactment, could not be specified.

J.A. 119. The “catch-all” provision had been enacted

by “a virtually unanimous Congress.” J.A. 129.

As to the “so called ‘major questions’ doctrine,” the

court found it inapplicable. J.A. 135. “Unlike cases

that have triggered the major questions doctrine, each

critical element of the Agency’s regulatory authority

on this very subject has long been recognized by Congress and judicial precedent.” J.A. 136, 188.

The court explained that “in enacting the Clean Air

Act, ‘Congress delegated to EPA the decision whether

and how to regulate carbon dioxide emissions from

powerplants.’” J.A. 97 (citing American Elec. Power

Co. v. Connecticut, 564 U.S. 410, 426 (2011)). EPA had

also made an Endangerment Finding, which “triggered a statutory mandate” for “the EPA to regulate

greenhouse gas pollution.” J.A. 137. And Congress

had empowered the EPA to determine the “best system of emission reduction.” J.A. 84.

As for the consequences of de-carbonization—the

costs and burdens cited by the EPA in replacing CPP

with the ACE Rule—the court characterized the described consequences as not relevant to a “major questions” determination: the anticipated effects were “the

8

product of the greenhouse gas problem, not the bestsystem’s role in the solution.” J.A. 148.

“Because promulgation of the ACE Rule and its

embedded repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act,” the

court concluded, “we vacate the ACE Rule and remand

to the Agency.” J.A. 215.

SUMMARY OF THE ARGUMENT

The Republic rests not on doctrine, but on law. And

not merely on law, but on the Constitution and its

principles. This case therefore raises questions of profound importance.

It would be a disgrace for this court to uphold section 7411 based on the indefensible nondelegation

doctrine. Being misleading and fictional, that doctrine

betrays both the Constitution and the truth. It is but

a fig leaf for unlawful power and should be acknowledged and repudiated as such.

In its place, what demands recognition is the Constitution and its principles. Under the Constitution,

individuals are to be bound only by laws made with

their consent through their elected legislature. Confirming this principle is the separation of powers, by

which legislative power is kept in the legislature. But

that is not all.

It will be seen that the Framers decided against

any congressional delegation of power. Their intent

found expression in the Constitution’s text, where it

9

says that the legislative powers “shall be vested” in

Congress. What shall be vested in Congress cannot be

vested elsewhere. This was, in other words, not

merely a grant of legislative power, but a statement

mandating its location.

Confirming this point, the Constitution requires

bicameralism and presentment. And the Executive

cannot exercise any power that was not vested in it.

It is time for this Court to stand up for these

truths. If it refuses, no other court can or will be able

to do so.

10

ARGUMENT

I. T HE

N ONDELEGATION

D OCTRINE

IS

M ISLEADING AND F ICTITIOUS AND S HOULD B E

A BANDONED

Confucius cautioned against using incorrect

names, lest language not be “in accordance with the

truth of things.” 5 The wisdom of that observation is

borne out by the Supreme Court’s nondelegation doctrine. The doctrine is misleading, even fictitious. So it

offends against the Constitution and the truth.

A. The Doctrine Disguises What It Does and

Why

The “nondelegation doctrine” purports to bar Congress from delegating legislative power. In fact, it notoriously permits the wholesale transfer of such

power. Although the sign above the gate says “closed,”

the gate is wide open.

In thus saying one thing and doing another, the

doctrine is profoundly misleading. It tells Americans

this Court is barring delegations of legislative power

even while promiscuously permitting them. Nothing

could do more to undermine the confidence of Americans in this Court.

5 Confucius, Analects, Book XIII, Chapter 3, verses 4–7, Analect

13.3, in James Legge, Confucian Analects: The Great Learning,

and The Doctrine of the Mean, 263-64 (Dover Publications 1971).

11

The notion of a nondelegation doctrine is also misleading in suggesting that what limits congressional

transfers of legislative power is a mere court-created

doctrine. Yet as will be seen below, the Constitution

itself—indeed, its very text—bars Congress from

shifting its legislative powers to the executive. The

nondelegation doctrine thus hides the fundamental

nature of the obstacle to delegation.

The doctrine offends against the truth and the

Constitution. It claims to do what it does not, and in

presenting itself as a mere doctrine, it understates its

constitutional foundations.

B. The Term “Delegation” Falsely Implies an

Easily Revocable Transfer

When a political or governmental entity “delegates” its powers, it always retains the authority to

unilaterally revoke its delegation. A cabinet secretary,

for example, who “delegates” statutorily authorized

powers to his subordinates has the right to terminate

that arrangement at any time, for any reason, and

without any need to secure the assent of the delegatee

or any other person or institution.

That is not the case when a statute purports to confer lawmaking powers on executive or agency officials.

Although Congress may revoke this arrangement, it

may do so only by repealing or amending the statute

through the bicameralism-and-presentment process

of Article I, § 7. The President is empowered to veto

any effort to withdraw powers that a statute vests in

12

the executive or an administrative agency, so Congress cannot unilaterally revoke a transfer of authority that a predecessor Congress made via statute.

Congress must obtain the President’s assent, or it

must secure veto-proof supermajorities in both houses

of Congress, before any previous transfer of authority

can be undone.

A statutory transfer of lawmaking power to the executive thus ties the hands of Congress. When Congress by statute transfers legislative power to the executive, it cannot recall the transferred power easily.

A statutory transfer of legislative power does not

merely delegate legislative power, for it limits Congress’ freedom to reassert its legislative powers.

Indeed, it is widely accepted that one Congress

cannot bind a future Congress except by passing a

statute (or ratifying a treaty). So, for example, neither

House of Congress can pass a rule that forces a future

Congress to follow certain procedures. Yet permitting

delegation to the executive allows this forbidden outcome. By transferring legislative power to an executive or agency official like the EPA Administrator, a

current Congress can get that official to enact rules

without going through bicameralism and presentment — policies that a future Congress cannot reverse

without taking those difficult steps.

It is therefore highly misleading for any court to

discuss transfers of legislative power in terms of “delegation.” That is not what is at stake.

13

C. The Doctrine Rests on Legal Fictions

The nondelegation doctrine has been constructed

and defended of the basis of a series of fictitious assumptions that deny the reality of agency lawmaking

and thereby give a patina of constitutional legitimacy

to this wayward practice.

1. One such fiction is that agencies are “executing”

the law whenever they regulate pursuant to congressional authorization — even when the underlying statute gives the agency vast discretionary power to enact

formal rules that carry the force of law. See, e.g., Eric

A. Posner and Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1723

(2002) (“[A]gents acting within the terms of such a

statutory grant are exercising executive power, not

legislative power.”).

Not even James Landis, the leading expositor and

defender of administrative power during the twentieth century, believed this fiction. Landis wrote that

“[i]t is obvious that the resort to the administrative

process is not, as some suppose, simply an extension

of executive power” and that “[c]onfused observers

have sought to liken this development to a pervasive

use of executive power.” James M. Landis, The Administrative Process 15 (1966).

Landis is right. The notion that an agency is

merely “executing” the law when making binding

rules is a transparent fiction. Agencies act as lawmakers when issuing rules that bind the public, which is

why courts and commentators describe their work

14

product as “legislative rules.” See, e.g., Chrysler Corp.

v. Brown, 441 U.S. 281, 302 (1979) (“We described a

substantive rule — or a ‘legislative-type rule’ — as one

‘affecting individual rights and obligations.’” (citation

omitted)); Batterton v. Francis, 432 U.S. 416, 425 n. 9

(1977) (“Legislative, or substantive, regulations are issued by an agency pursuant to statutory authority. …

Such rules have the force and effect of law.”) (cleaned

up); Kenneth Culp Davis, 2 Administrative Law Treatise § 7:8 at 36 (2d ed. 1979) (“A legislative rule is the

product of an exercise of delegated legislative power

to make law through rules. … [V]alid legislative rules

have about the same effect as valid statutes; they are

binding on courts.”).

This Court describes an agency’s rulemaking and

adjudicatory powers not as “executive” but as “quasilegislative” and “quasi-judicial.” See, e.g., Graham

Cty. Soil & Water Conservation Dist. v. U.S. ex rel.

Wilson, 559 U.S. 280, 290 (2010) (describing agency

rulemaking as “legislative or quasi-legislative activities.”); Humphrey’s Executor v. United States, 295 U.S.

602, 628 (1935).

2. A second fiction is the idea that agency lawmaking is merely “specifying” or “filling in the details” of a

statutory standard. See, e.g., United States v. Grimaud, 220 U.S. 506, 517 (1911) (“[W]hen Congress

had legislated and indicated its will, it could give to

those who were to act under such general provisions

‘power to fill up the details’ by the establishment of

administrative rules and regulations”).

15

But even where authorizing statutes offer governing standards, the authorized agencies often are not

merely specifying or filling in details. As is widely understood, such statutes frequently leave the most difficult legislative questions to the agencies — indeed,

members of Congress notoriously use such statutes

precisely to avoid making difficult legislative decisions. See Gundy, at 2144 (Gorsuch, J., dissenting)

(“Because Congress could not achieve the consensus

necessary to solve the hard problems … it passed the

potato” to an agency, “freed from the need to assemble

a broad supermajority for his views”); D. Schoenbrod,

Power Without Responsibility, 9–19, 55–59, 72–94,

102–05, 157–59 (Yale U. Press 1993).

The notion of “filling in mere details” is especially

fictitious here. Had Congress, in the Clean Air Act,

unequivocally ordered EPA to decarbonize the generation of electricity, it could be argued that Section

7411 had merely assigned the specifics to the EPA.

But that is not what occurred. The Senate did not act,

so Congress never made the decision to decarbonize.

Instead, the decision to decarbonize and the specifics of implementing that policy choice were both made

by the EPA, on the basis of a generalized “best system”

authorization which even the court below characterized as “striking for its paucity of restrictive language.” J.A. 120. Indeed, as the court also noted, Section 7411’s lack of specificity is in marked contrast to

other sections of the statute, in which Congress has in

16

fact identified the “specific categories of emission reduction tools” to be applied. Id.

But the very “paucity of restrictive language”

should have cut against reading Section 7411 as a

massive grant of power to EPA. Restrictive language

directing EPA’s handling of a Congressional policy decision to decarbonize would have signaled that Congress had properly asserted its legislative power and

made the policy call. See Yakus v. United States, 321

U.S. 414, 425 (1944) (a statute must “sufficiently

mark[] the field within which the Administrator is to

act so that it may be known whether he has kept

within it in compliance with the legislative will.”)

Instead, as interpreted by the appeals court, Section 7411 is a congressional authorization for EPA to

decide both whether and how to decarbonize the electricity generating industry. These are hardly “details.”

3. A third fiction is that an agency does not exercise

legislative power if Congress has provided an “intelligible principle” to inform the agency’s discretion.

Justice Gorsuch has accurately recounted how

courts have gradually expanded this standard with repeated use to the point that, like a worn-out elastic

band, it no longer imposes any meaningful constraints

on Congress’ divestment of its legislative powers:

This mutated version of the ‘intelligible

principle’ remark has no basis in the

original meaning of the Constitution, in

history, or even in the decision from

17

which it was plucked. Judges and scholars representing a wide and diverse

range of views have condemned it as

resting on ‘misunderst[ood] historical

foundations.’ They have explained, too,

that it has been abused to permit delegations of legislative power that on any

other conceivable account should be held

unconstitutional. Indeed where some

have claimed to see ‘intelligible principles’ many ‘less discerning readers [have

been able only to] find gibberish.’ Even

Justice Douglas, one of the fathers of the

administrative state, came to criticize

excessive congressional delegations in

the period when the intelligible principle

‘test’ began to take hold.

Gundy, at 2144 (Gorsuch, J., dissenting) (citations

omitted).

Acts of lawmaking and legislation do not depend

on whether or not some other entity has supplied an

“intelligible principle” that purports to guide the legislative decision. Every lawmaking entity holds powers that were authorized or vested in it by somebody,

and there is almost always some semblance of an “intelligible principle” that defines the boundaries of

those powers. But that does not change the legislative

character of the resulting edict.

Every act of Congress, for example, is ostensibly

guided and controlled by an “intelligible principle”

18

supplied by the Constitution’s enumerated powers.

Congress must always act within the scope of one or

more of those “intelligible principles” that define and

limit what Congress may do. But Congress is most assuredly “legislating” when it enacts statutes, even

though it does so pursuant to a grant of power that

limits and controls Congress with a series of “intelligible principles.”

The result is no different when an agency issues an

edict under a statute that confers powers defined by

an “intelligible principle” — such as an instruction to

“regulate in the public interest,” or, as here, apply “the

best system.”

As Judge Walker explained in dissent below,

To be sure, if we frame the question

broadly enough, Congress will have always answered it. Does the Clean Air Act

direct the EPA to make our air cleaner?

Clearly yes. Does it require at least some

carbon reduction? According to Massachusetts v. EPA, again yes. But how

should the EPA reduce carbon emissions

from power plants? And who should pay

for it? To these major questions, the

Clean Air Act’s answers are far from

clear.

J.A. 230. Section 7411 illustrates the meaningless of

requiring an intelligible principle.

The existence of what this Court calls an “intelligible principle” does not save agency rulemaking from

19

being legislative. And current doctrine is fictional in

suggesting otherwise.

***

There should be no place in Supreme Court jurisprudence for a doctrine as misleading and fictional as

the nondelegation doctrine. Rather than perpetuate a

doctrine so offensive to the Constitution and the truth,

this Court should recognize that, if the D.C. Circuit’s

interpretation of section 7411 is correct, that section

divests Congress of its legislative power.

II. C ONGRESS M AY N OT D IVEST I TSELF OF I TS

L EGISLATIVE P OWER

When enacting the Constitution, the people gave

to Congress, and to Congress alone, the power to legislate, most centrally the power to make binding

rules—those limiting their liberty. The location of this

power in Congress was essential because of the fundamental principles of consent and the separation of

powers. But it is not only these underlying principles

that should guide this Court in barring any relocation

of legislative power. Both the drafting debates and the

Constitution’s very text make clear that legislative

power cannot be shared or otherwise transferred.

A. The Principles of Consent and Separation

of Powers

20

The transfer of legislative powers collides with two

of the most basic principles underlying the Constitution. These principles alone already caution against

any such dislodging of legislative power.

No principle mattered more for the founding of

the nation than consent. Without such consent, government would be without legitimacy, and its laws

would be without obligation. In the words of the Declaration of Independence, “all men are created equal,

that they are endowed by their Creator with certain

unalienable rights, that among these are life, liberty

and the pursuit of happiness,” and that “to secure

these rights, governments are instituted among men,

deriving their just powers from the consent of the governed.” Decl. of Indep. (1776).

The consent of the people was essential not only

for the adoption of the Constitution but also for the

enactment of statutes. And in a republic, such as the

United States, the consent must come through the

election of representatives to the legislature—the

body with legislative power. On the basis of this need

for elective representation, American colonists declared it “the first principle in civil society, founded in

nature and reason, that no law of the society can be

binding on any individual[], without his consent,

given by himself in person, or by his representative of

his own free election.” 6

6 Resolutions of the Boston Town Meeting (Sept. 13, 1768), in

A Report of the Record Commissioners of the City of Boston,

(continued…)

21

The displacement of legislative power to administrative agencies, not least in section 7411, threatens this self-governance. It deprives Americans of

their freedom to rule themselves through their

elected representatives.

In other words, what scholars call “delegation”

(and what this Court quaintly calls “nondelegation”)

dilutes voting rights. 7 To be sure, the dislocation of

legislative power does not deny anyone’s right to cast

a ballot. But in shifting legislative power out of the

elected legislature, it diminishes the value of suffrage.

The form remains, but the reality is to reduce the

power of the voters—to debase the currency of voting.

And if violations of voting rights are worrisome even

at a retail level, there should be at least as much concern about this wholesale assault on voting rights.

Reinforcing the need for consent was the principle

of separation of powers. The government’s tripartite

powers were understood to be naturally different, so

each could be located in its own branch of government

without any overlap. 8 The separation of these different powers seemed essential for both prudent decisionmaking and the protection of liberty. To serve

these ends, it was understood that the powers must

continue to be separated. The separation, in other

Containing the Boston Town Records, 1758 to 1769, at 261

(Boston: Rockwell & Churchill, 1886).

7 See Philip Hamburger, Nondelegation Blues, sect. XI.A., XI.C.

(2021), available at SSRN.com.

8 Id. at sect. IV.

22

words, was exclusive vis à vis other branches of government. 9

Beginning in 1791, the earliest surviving academic

lectures on the Constitution were given by the Virginia judge St. George Tucker at William and Mary.

He explained:

[A]ll the powers granted by the Constitution are either legislative, executive, or

judicial; and to keep them forever separate and distinct, except in the Cases

positively enumerated, has been uniformly the policy, and constitutes one of

the fundamental principles of the American Government. 10

This was only one of many such statements at the

time. But it captures the essence of the separation

problem with section 7411 and all other statutes that

shift to agencies the power to make binding rules.

The Constitution’s principles of consent and separation of powers make abundantly clear that the

transfer of legislative power out of Congress’ hands is

profoundly lawless. It violates the Constitution’s most

fundamental principles.

But that’s not all. The drafting and text also have

much to say.

9 Id. at sect. VI.

10 St. George Tucker, Law Lectures, p. 4 of four loose pages inserted in volume 2, Tucker-Coleman Papers, Mss. 39.1 T79, Box

62, Special Collections Research Center, Earl Gregg Swem Library, College of William and Mary.

23

B. The

Framers’

Rejection

Congressional Delegations

of

All

At the Constitutional Convention, the framers had

to establish the Executive and its power. In the course

of their debates, James Madison proposed a series of

powers for the Executive, including the power to execute congressionally delegated powers. His initial suggestion along these lines apparently provoked General Charles Cotesworth Pinckney to express concern

that “improper powers” might be delegated. 11 So Madison came back with a proposal that limited the Executive’s delegated powers to those that were not legislative or judicial. To be precise, he moved that the Executive be established:

with power to carry into effect the national laws. to appoint to offices in cases

not otherwise provided for. and to execute such other powers not Legislative nor Judiciary in their nature. as

may from time to time be delegated by

the national Legislature. 12

In other words, the Executive would have the power

to exercise such executive powers as were delegated

by Congress.

11 Madison’s Notes, 1 Farrand, Records of the Federal Conven-

tion 67.

12 Id.

24

But Charles Pinckney moved to strike out the

phrase: “and to execute such other powers not Legislative nor Judiciary in their nature as may from time

to time be delegated.” 13 He explained that they “were

unnecessary, the object of them being included in the

‘power to carry into effect the national laws’.” 14 That

is, if the Constitution already gave the Executive this

power, there was no need for it to get more executive

power from Congress. The Convention agreed. 15

The Framers thus rejected any congressional delegation. It was beyond dispute that there should be no

delegation of powers that were “Legislative nor Judiciary in their nature.” And the Framers repudiated

even delegated executive power.

The delegation of power was to be done by the people in the Constitution, not by Congress. So, it is difficult to understand how Congress—for example, in section 7411—can transfer binding lawmaking power to

agencies.

But this point rests not merely on underlying

principles, nor merely on the debates in Philadelphia,

but on the text.

13 Id.

14 Id.

15 Id.

25

C. “Shall Be Vested” Textually Mandates

That All Legislative Powers Must Be in

Congress, Not Elsewhere

The Constitution says each of its tripartite powers

“shall be vested” in its own branch of government.

U.S. Const., art. I, §1, art. II, §1, art. III, §1. The Constitution thereby textually emphasizes that its powers

cannot be rearranged.

Imagine that the Constitution had used the word

“vested” as one might in grant of property, saying

merely that the legislative powers are hereby vested in

Congress. Then there would be a transfer of the powers, but not an express textual indication that the legislative powers must ultimately be located in Congress.

But the Constitution says that its powers “shall

be vested.” It thereby not only transfers its powers,

but says where they “shall” and thus must be located.

Of particular interest for section 7411, the legislative

powers shall be in Congress.

One might protest that when Congress shares

some of its powers with the Executive, those powers

remain vested in Congress. But that misses the point.

When the Constitution says that the legislative powers shall be vested in Congress, it requires them to be

there, not elsewhere.

In defense of delegation, one might argue that

when Congress shares some of its powers with the Executive, those powers remain vested in Congress.

From this perspective, the devolution of the commerce

26

power to the Department of Agriculture does not deprive Congress of that power. But that misses the

point. “When the Constitution says the legislative

powers shall be vested in Congress, it requires them to

be there, not elsewhere. That is, when legislative powers are shared with the Executive, they are no longer

vested merely in Congress, and the sharing thus violates the Constitution’s injunction that they shall be

vested in Congress. The Constitution does not say that

the legislative powers ‘shall be vested in a Congress of

the United States and anyone with whom Congress

shares them.’” 16

The phrase “shall be vested” reinforces what already should be clear, that “the Constitution’s vesting

of powers is not just an initial distribution—like an

initial dealing out of cards.” 17 Rather than merely vest

the legislative powers in Congress, the Constitution

mandates where they shall remain.

D. The Evasion

Presentment

of

Bicameralism

and

When this Court permits Congress to divest itself

of legislative power, it weakens accountability to the

people by allowing an evasion of bicameralism and

presentment. Bicameralism makes lawmaking diffi-

16 Hamburger,

17

Id.

supra note 7, at sect. IX.C.

27

cult by design—to limit corruption and unjust passions and enable prudence. The Federalist No. 62, p.

418-19 (J. Madison) and No. 63, pp. 423-25 (J. Madison) (J. Cooke ed. 1961). Presentment ensures that

laws are subject to the possibility of a veto. Together,

the requirements place responsibility in the two

elected legislative bodies and in an elected President — all of whom are personally accountable to the

people.

But when Congress divests itself of its legislative

power and an administrative agency legislates, “the

people lose control over the laws that govern them. …

The public loses the right to have both its elected representatives make the law and its elected president

take personal responsibility for the law.” D.

Schoenbrod, Power without Responsibility, 99–105

(Yale U. Press 1993). Instead, as with section 7411,

only someone appointed by the President takes responsibility — an appointee who is not personally chosen by the public or accountable to them at the next

election.

E. The

Executive

May

Legislative Power

Not

Exercise

At stake is not only legislative power but also the

power of the Executive. Binding agency rules are typically analyzed in term of congressional power—the

question being whether Congress can delegate or divest itself of legislative power. But the transfer of legislative power to the Executive should also prompt

28

concern for the Constitution’s vesting of executive

power in the President.

The Constitution vests the President with executive power (along with the adjustments to it in the rest

of Article II). U.S. Const, art. II, §1. It does not vest

him with legislative power. He therefore cannot exercise legislative power.

Recall (from supra, Part II.B) that when the Constitutional Convention discussed the delegation problem, it did so in the context of asking whether the Executive should have a power to exercise congressionally delegated powers. The assumption was that without such authorization, the Executive could not exercise even congressionally delegated powers that were

executive.

The need for each branch to exercise only the

power vested in it was recognized by the judiciary in

Hayburn’s Case, 2 U.S. 409 (1792). Three circuits protested that they could not act under the Invalid Pension Act, and all argued that the courts could not exercise a power that had not been vested in them. For

example, the Circuit Court for the District of Pennsylvania said that “the business directed by this act is

not of a judicial nature. It forms no part of the power

vested by the Constitution in the courts of the United

States; the circuit court must consequently have proceeded without constitutional authority.” Id., at 411

(1792) (CC for Dist. Pa.).

This principle applied to all branches of government, including the Executive. The Circuit Court for

29

the District of North Carolina explained: “the legislative, executive, and judicial departments are each

formed in a separate and independent manner,” and

“the ultimate basis of each is the Constitution only,

within the limits of which each department can alone

justify any act of authority.” Id., at 412 (CC for Dist.

NC).

The Executive cannot exercise any power that is

not executive. It is yet another reason to doubt

whether Congress in section 7411 can give legislative

power to the EPA.

***

If the D.C. Circuit’s interpretation of the Clean Air

Act is correct, then the Act divests Congress of legislative powers. This repudiates the principles of consent and separation of powers, it departs from the

known views of the framers, it evades bicameralism

and presentment, and most concretely it violates the

Constitution’s mandate that the legislative powers

“shall be vested” in Congress. It even invites the Executive to go beyond its power under the Constitution.

III.E FFICIENCY C ANNOT J USTIFY THIS C OURT IN

F AILING TO U PHOLD THE C ONSTITUTION

Those who defend the existing nondelegation doctrine often contend that modern government could not

operate effectively if Congress were barred from shifting legislative decisions to Executive Branch officials.

That contention, however, is dubious. The problem is

30

not merely that it elevates necessity, even just efficiency, above the Constitution. Even more curiously,

it elevates an unproven claim of efficiency above the

Constitution.

As this Court has explained, adherence to the

Vesting Clause does not preclude efficient government

operations:

The Constitution as a continuously operative charter of government does not demand the impossible or the impracticable. It does not require that Congress

find for itself every fact upon which it desires to base legislative action or that it

make for itself detailed determinations

which it has declared to be prerequisites

to the application of the legislative policy

to particular facts and circumstances impossible for Congress itself to properly

investigate. The essentials of the legislative function are the determination of

the legislative policy and its formulation

and promulgation as a defined and binding rule of conduct.

Yakus v. United States, 321 U.S. 414, 424 (1944).

It may sometimes be difficult to distinguish between statutes that permissibly authorize agencies to

engage in factfinding, Miller v. Mayor of New York,

109 U.S. 385, 393 (1883), from those that impermissibly divest Congress’ legislative policymaking authority to agencies. Difficult line drawing, however, is not

31

a reason to abandon the core Constitutional mandate

that it is Congress that must legislate.

If it really is insurmountably onerous to comply

with the Constitution, there should be some scientifically serious empirical proof of this proposition. There

also should be some proof that the only remedy is for

the courts to push aside the Constitution—in other

words, that the problem cannot be cured by a constitutional amendment. Thus far, no such proof has been

offered.

Even if it had been shown that the Constitution

cannot meet contemporary needs, it is far from clear

that this Court should pay attention to such evidence.

As Justice Jackson concluded in Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Court

should not be in a hurry to abandon the Constitution’s

structures: “Such institutions may be destined to pass

away. But it is the duty of the Court to be last, not

first, to give them up.”

With respect to section 7411, the efficiency objection to following the Constitution is not merely unproven; it clearly is mistaken. The Clean Air Act itself

mandated specific remedial methods for addressing

specific emission problems. J.A. 120 (42 U.S.C.

§ 7651f(b)(2) and § 7491(b)(2)(A),(g)(2). If Congress desires to mandate the vast changes to the power industry necessitated by the CPP, there are no practical difficulties that would prevent it from enacting legislation expressly mandating those changes.

32

CONCLUSION

It is the duty of judges to speak honestly about the

law. This can be difficult. It surely is no pleasure to

recognize the misleading and fictional character of a

long-established doctrine. When such a task comes before this Court, the Justices have a duty to face up to

it. This is not merely their duty; it is their very office.

The Justices therefore must cast aside their nondelegation doctrine and recognize, instead, what is required by the Constitution. Its most basic underlying

principle is that individuals cannot be bound by laws

not made with their consent—that is, not made by

their elected legislature. Almost as fundamental is the

separation of powers, which keeps the tripartite powers separate, each in its own branch of government.

The Framers clearly rejected any congressional delegation of power, and giving effect to this decision, the

Constitution’s very text says that each power “shall be

vested” in its branch. What shall be vested in Congress cannot be vested elsewhere. Reinforcing this

conclusion is the Constitution’s requirement of bicameralism and presentment, and the Executive duty to

avoid exercising any but executive power.

Each one of these constitutional problems

should be enough to prompt a judicial change of heart.

Taken together, they should inspire a judicial mea

culpa. The Constitution’s still vital principles, its

framing, and its text are aligned in barring any divesting of legislative power. So, it is time for the Court to

follow the law and end this unlawful practice.

33

The Court should reverse the judgment below.

Respectfully submitted,

Philip Hamburger

Mark Chenoweth

Brian Rosner

Counsel of Record

Richard Samp

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

202-869-5210

December 20, 2021

Counsel for Amicus Curiae