Petition for Writ of Certiorari — National Postal Policy Council, et al., Petitioners v. Postal Regulatory Commission, et al.

No.

In the Supreme Court of the United States

NATIONAL POSTAL POLICY COUNCIL,

AMERICAN CATALOG MAILERS ASSOCIATION,

MAJOR MAILERS ASSOCIATION,

NEWS MEDIA ALLIANCE, AND

NATIONAL NEWSPAPER ASSOCIATION,

Petitioners,

v.

POSTAL REGULATORY COMMISSION AND

UNITED STATES POSTAL SERVICE,

Respondents,

On Petition for a Writ of Certiorari to

The United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

AYESHA N. KHAN

Counsel of Record

WILLIAM BAKER

Potomac Law Group, PLLC

1300 Pennsylvania Avenue,

NW, Suite 700

Washington, DC 20004

(202) 836-7136

akhan@potomaclaw.com

Counsel for Petitioners

i

QUESTION PRESENTED

Congress has long established the legal requirements for the postal rate-setting system, a quintessentially legislative task with vast and important policy implications for the country. In 2006, Congress

passed the Postal Accountability and Enhancement

Act, which imposed various requirements that the

system had to meet, including an inflation-adjusted

price cap that reflected Congress’s policy judgment

that preventing rates from rising faster than inflation

would maximize incentives for the Postal Service to

reduce costs and increase efficiency. The Act tasked

the Postal Regulatory Commission with filling in the

system’s details, subject to the statutory requirements.

As interpreted by the court below, the Act also

gave the Commission power, ten years later, to throw

out the statutory requirements and to rewrite the system from scratch, subject only to broad, open-ended,

and often competing goals.

The Commission-crafted system subjects mailers

to price increases that vastly exceed the rate of inflation and imperil many mailers’ very existence—a result for which Congress has no accountability in light

of its having “throw[n] the mess into the lap of an administrative agency.” James Skelly Wright, Beyond

Discretionary Justice, 81 Yale L.J. 575, 585-86 (1972).

The question presented is whether the nondelegation doctrine should be strengthened to disallow Congress from transferring to a federal agency the power

to rewrite the postal rate-setting system without establishing any requirements that the system would

have to meet.

ii

PARTIES TO THE PROCEEDING

All parties to the proceeding in the court below are

listed on the caption, except:

•

The Counsel for Alliance of Nonprofit Mailers, Association for Postal Commerce, and

MPA-The Association of Magazine Media

were petitioners and intervenor-respondents below, but are not Petitioners here;

and

•

Valpak Franchise Association, Inc. was

granted intervenor status, but subsequently sought and obtained withdrawal,

in the court below.

RULE 29.6 STATEMENT

The Petitioners have no parent or publicly held

company owning 10% or more of their stock.

RELATED PROCEEDING

The only proceeding in state or federal trial or appellate courts directly related to this case is:

•

Nat’l Postal Policy Coun. v. Postal Regulatory Comm’n, No. 17-1276, U.S. Court of

Appeals for the D.C. Circuit. Decided Nov.

12, 2021, in a decision reported at 17 F.4th

1184.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDING ........................... ii

RULE 29.6 STATEMENT .......................................... ii

RELATED PROCEEDING ........................................ ii

TABLE OF APPENDICES ......................................... v

TABLE OF AUTHORITIES .......................................vi

OPINIONS & ORDERS BELOW ...............................1

JURISDICTION ..........................................................1

CONSTITUTIONAL PROVISIONS &

STATUTES INVOLVED .............................................1

INTRODUCTION ........................................................2

STATEMENT ..............................................................3

A. Congress’s Longstanding Exercise of

Responsibility for Establishing the

Rules Governing Postal Rates..........................3

B. 2006 Postal Accountability and

Enhancement Act. ............................................6

C. The Commission’s Ten-Year Review ................9

D. The D.C. Circuit’s Rulings ..............................12

REASONS FOR GRANTING THE PETITION .......15

I. The Court’s Nondelegation Doctrine

Imperils Our System of Representative

Government and Requires Clarification. ............15

A. The nondelegation principle was

essential to the Founders’

understanding of our constitutional

order. ...............................................................15

iv

TABLE OF CONTENTS—continued

Page

B. The nondelegation doctrine has become

so elastic as to have lost any clear

meaning...........................................................18

C. Scholars and Justices have agreed that

the doctrine needs a reboot. ...........................23

II. The PAEA Sounds All of the Alarms That

the Nondelegation Principle Is Designed to

Address. ................................................................27

A. As interpreted by the court below, the

PAEA reflects congressional abdication

of responsibility for making difficult and

important policy choices. ................................28

B. The statutory objectives that Congress

laid out lack any prescriptive effect. ..............30

C. The country and its mailers will

experience substantial harm under the

Commission’s regime, for which

Congress is now unaccountable. ....................32

CONCLUSION ..........................................................35

v

TABLE OF CONTENTS—continued

Page

TABLE OF APPENDICES

A. Court of Appeals Decision (Nov. 11, 2021) .... 1a

B. Excerpts from Commission Order 5763

(Nov. 30, 2020) .............................................. 31a

C. Excerpts from Commission Order 5337

(Dec. 5, 2019) ................................................ 94a

D. Excerpts from Commission Order 4258

(Dec. 1, 2017) .............................................. 160a

E. Postal Accountability and Enhancement

Act, 39 U.S.C. § 3622 .................................. 194a

vi

TABLE OF AUTHORITIES

Page(s)

CASES

A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935) .......................... passim

Am. Power & Light Co. v. Sec. and Exch.

Comm’n, 329 U.S. 90 (1946) ............................... 25

Arizona v. California, 373 U.S. 546 (1963)

(Harlan, J., dissenting in part) ........................... 18

Carlson v. Postal Regulatory Comm’n, 938

F.3d 337 (D.C. Cir. 2019) ...................................... 6

Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ..................... 13

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) ......................................... 23, 24

Direct Mail Advertising Ass’n, Inc. v. U.S.

Postal Serv., 458 F.2d 813 (D.C. Cir. 1972) ..... 5, 6

Fahey v. Mallonee, 332 U.S. 245 (1947)................... 20

Franchise Tax Bd. of Cal. v. U.S. Postal Serv.,

467 U.S. 512 (1984) ............................................... 5

Gundy v. United States,

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

Industrial Union Department, AFL-CIO

v. American Petroleum Institute, 448

U.S. 607 (1980) .................................................... 21

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

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

King v. Burwell, 576 U.S. 473 (2015) ...................... 22

vii

TABLE OF AUTHORITIES—continued

Page(s)

Loving v. U.S., 517 U.S. 748 (1996) ......................... 27

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ............................................. 16

National Cable Television Association v.

United States, 415 U.S. 336 (1974) .................... 21

Panama Refin. Co. v. Ryan,

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

Reynolds v. United States, 565 U.S. 432 (2012) ...... 22

Skinner v. Mid-America Pipeline Co.,

490 U.S. 212 (1989) ............................................. 27

Touby v. United States, 500 U.S. 160 (1991) ........... 22

United States v. Rock Royal Co-op., Inc., 307

U.S. 533 (1939) .............................................. 20, 21

U.S. Postal Serv. v. Postal Regulatory

Comm’n, 785 F.3d 740 (D.C. Cir. 2015) ........... 7, 8

Wayman v. Southard, 23 U.S.

(10 Wheat.) (1825) ........................................ 15, 16

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................... 14, 21, 22, 24

Yakus v. United States, 321 U.S. 414 (1944) ........... 18

CONSTITUTIONAL & STATUTORY PROVISIONS

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

U.S. Const. art I § 8 .............................................. 4, 15

5 U.S.C. § 8906 ......................................................... 10

viii

TABLE OF AUTHORITIES—continued

Page(s)

39 U.S.C. § 101 ................................................... 32, 33

39 U.S.C. § 3622 ................................................ passim

39 U.S.C. § 3642 ......................................................... 7

39 U.S.C. § 3663 ....................................................... 12

39 U.S.C. § 501 ........................................................... 7

An Act to Establish the Post-Office and Post

Roads within the United States, Act of Feb.

20, 1792, available at http://njpostalhistory.org/media/pdf/postact1792.pdf ...................... 4

Pub. L. No. 91-375, 84 Stat. 760 ................................ 6

LEGISLATIVE MATERIALS

152 Cong. Rec. S11,675 (daily ed. Dec. 8, 2006)

(statement of Sen. Collins) ........................... 28, 29

H.R. Rep. No. 109-66 (2005)....................................... 6

S. Rep. No. 108-318 (2004) ................................. 6, 7, 8

OTHER AUTHORITIES

David Schoenbrod, The Delegation Doctrine:

Could the Court Give It Substance?, 83

Mich. L. Rev. 1223 (1985) ............................ passim

Gary S. Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327 (2002) . 16, 24, 26, 27

ix

TABLE OF AUTHORITIES—continued

Page(s)

James I. Campbell, Jr., Summary of the Legislative History of the Postal Accountability

and Enhancement Act, Public Law 109-435

(2006) (Sept. 2007), https://www.jcampbell.com/unitedstates/paea/20160829_PAEA%20leg%20his

t%20reformat_sum_only.pdf. .......................... 6, 7

Jane Kennedy, Development of Postal Rates,

Vol. 33, No. 2, Jour. of Land Economics 97

(May 1957) ..................................................... 3, 4, 5

John Locke, The Second Treatise of Gov’t § 141

(1690), available at https://www.gutenberg.org/files/7370/7370-h/7370h.htm#CHAPTER_III ......................................... 16

John F. Manning, The Nondelegation Doctrine

as a Canon of Avoidance, 2000 S.C.T.R. 223

(2000) ................................................................... 23

John Hart Ely, Democracy and Distrust, a

Theory of Judicial Review (1980) ....................... 25

Judge Skelly Wright, Beyond Discretionary

Justice, 81 Yale L.J. 575 (1972) .............. 24, 25, 28

Martin H. Redish, The Constitution as Political Structure (1995)............................................. 26

Morris P. Fiorina, Group Concentration and

the Delegation of Legislative Authority, in

Regulatory Policy and the Social Sciences

175 (Roger G. Noll ed., 1985) .............................. 17

x

TABLE OF AUTHORITIES—continued

Page(s)

Neomi Rao, Administrative Collusion: How

Delegation Diminishes the Collective Congress, 90 N.Y.U.L. Rev. 1463 (2015) ................... 17

Sotirios A. Barber, The Constitution and the

Delegation of Congressional Power (1975) ......... 26

Philip Hamburger, Is Administrative Law Unlawful (2014) ....................................................... 24

Popular Science, The Postal Service helps keep

millions of Americans alive and well (Aug.

20, 2020), https://www.popsci.com/story/science/us-postal-service-keeps-americanshealthy/................................................................ 33

Ronald A. Cass, Delegation Reconsidered: A

Delegation Doctrine for the Modern Administrative State, 40 Harv. J.L. & Pub. Pol’y

147 (2017) ...................................................... 15, 24

The Federalist No. 37 (Madison) (G. Carey &

J. McClellan eds. 2001) ....................................... 15

The Federalist No. 48 (Madison) (G. Carey &

J. McClellan eds. 2001) ....................................... 15

The Federalist No. 62 (Madison) (G. Carey &

J. McClellan eds. 2001) ....................................... 16

The Federalist No. 73 (Hamilton) (G. Carey &

J. McClellan eds. 2001) ....................................... 17

United States Postal Service, Fiscal Year 2021

Annual Report to Congress,

https://about.usps.com/what/financials/annual-reports/fy2021.pdf ...................................... 33

xi

TABLE OF AUTHORITIES—continued

Page(s)

U.S. Postal Serv., The United States Postal

Service: An American History 4 (2020),

https://about.usps.com/publications/pub100.pdf ................................................... 3

U.S. Postal Serv., Delivering for America during COVID-19,

https://about.usps.com/newsroom/covid-19/)...... 33

Winifred Gallagher, A Brief History of the

United States Postal Service, 95 Smithsonian Magazine (Sept. 2020),

https://www.smithsonianmag.com/smithsonian-institution/brief-history-unitedstates-postal-service-180975627/.......................... 4

OPINIONS & ORDERS BELOW

The opinion below (Pet. App. A) is reported at 17

F.4th 1184.

The Commission issued 23 Orders in this docket,

all of which can be found at https://www.prc.gov/dockets/doclist/RM2017-3/Orders_Responses-to-Orders?page=3 (last visited Feb. 1, 2022).1

JURISDICTION

The D.C. Circuit entered judgment on November

12, 2021. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS &

STATUTES INVOLVED

Article I, Section 1 of the U.S. Constitution provides that “All legislative Powers herein granted shall

be vested in a Congress of the United States, which

shall consist of a Senate and House of Representatives.”

The relevant provisions of the Postal Accountability and Enhancement Act (Pet. App. E) appear at 39

U.S.C. § 3622.

These 23 orders encompassed 1,400+ pages, almost

all of which are irrelevant to this Petition. Because it

would have been cost-prohibitive to include all of these orders in an Appendix, Petitioners have included only those

portions of the Commission’s orders that are pertinent to

the question presented. The full text of the excerpted orders, and of the Commission’s other substantive orders,

were included in the Joint Appendix below. See JA Doc.

Nos. 1, 5, 6, 12, 26, 31. That Joint Appendix is cited herein

as “JA.”

1

2

INTRODUCTION

Congress has long established the policy governing the operations of what is today the U.S. Postal Service. An important facet of that role has been to legislate how postal rates are to be set, a consideration

that necessarily rests on policy judgments and has

vast implications not only for the Service but for the

country.

The most recent iteration of this was the 2006

Postal Accountability and Enhancement Act

(“PAEA”). The PAEA imposed various requirements

on the ratemaking system and tasked the Postal Regulatory Commission with filling in the system’s details, subject to the statutory requirements.

Under the interpretation of the Act adopted by the

court below, however, the Act also gave the Commission power, ten years later, to throw out the statutory

requirements and to rewrite the system from scratch,

subject only to broad, open-ended, and often competing goals, without any rules to limit its discretion.

Using its new authority, the Commission adopted

a system that subjects Petitioners and their members

to extraordinary rate increases that will impede the

Postal Service’s ability to serve its intended purpose

and imperil the very existence of many mailers.

As interpreted, the statute sounds all of the

alarms that have caused Justices and scholars to criticize this Court’s nondelegation doctrine, which licenses Congress to evade responsibility for hard policy

questions by passing them to administrative agencies,

thereby frustrating the Founders’ vision for the country and undermining representative government.

3

In light of the vast policy implications for the

country and the breadth of the congressional delegation involved, the Court should take this opportunity

to clarify the doctrine and to restore the proper balance between the executive and legislative branches

of government.2

STATEMENT

A. Congress’s Longstanding Exercise of Responsibility for Establishing the Rules

Governing Postal Rates

Since this country’s founding, Congress has wrestled with how to provide for a well-functioning postal

service.

Different eras and developments have

brought new challenges and, each time, Congress

weighed the policy considerations and stepped up to

the plate with a legislative solution.

The founding era. The country’s founders believed that the widespread dissemination of information was central to national unity. In 1775, before

the Declaration of Independence was even signed, the

Continental Congress turned the Constitutional Post

into the Post Office for the colonies, whose operations

became the first—and for many citizens, the most consequential—function of the new government. U.S.

Postal Serv., The United States Postal Service: An

American

History

4

(2020),

2 The Court may clarify its nondelegation doctrine in West

Virginia v. Environmental Protection Agency, No. 20-1530. Accordingly, the Court should hold this petition pending the

ruling in that case, which could call for a summary reversal

or a GVR here. If the Court were to decide that case without addressing the nondelegation doctrine, however, this

case would remain an apt vehicle for the Court to offer

much-needed clarification on the doctrine’s contours.

4

https://about.usps.com/publications/pub100.pdf [hereinafter “USPS History”]; Jane Kennedy, Development

of Postal Rates, Vol. 33, No. 2, Jour. of Land Economics 97 (May 1957) [hereinafter “Development of Postal

Rates”].

Article I, Section 8 of the U.S. Constitution empowered Congress “[t]o establish Post Offices and post

Roads.” The first law dealing with the Post Office, enacted in 1782, provided for the government’s monopoly on letter mail. Development of Postal Rates at 94.

Thereafter, Congress enacted the Post Office Act of

1792, which, among other things, established post

roads and a general post office, and encouraged the

exchange of newspapers and magazines by allowing

them to travel through the mail at low postage rates,

but set fairly high rates for letters (i.e., six to twentyfive cents, depending on distance). See An Act to Establish the Post-Office and Post Roads within the

United States, Act of Feb. 20, 1792, ch. 7, §§ 9 & 10,

available

at

http://njpostalhistory.org/media/pdf/postact1792.pdf (last visited Feb. 1, 2022).

Some have referred to this as a “Robin Hood scheme”

in which high-priced postage for letters, then sent

mostly by businessmen and lawyers, subsidized the

delivery of cheap, uncensored newspapers, thereby

fostering a robust political culture. See Winifred Gallagher, A Brief History of the United States Postal Service, 95 Smithsonian Magazine (Sept. 2020), available

at https://www.smithsonianmag.com/smithsonian-institution/brief-history-united-states-postal-service180975627/ [hereinafter “A Brief History”].

1845 Act. By the 1840s, because of improvements

in transportation and the rapid increase of commerce,

and because postal rates for private letters were high

(sending a letter more than 150 miles cost around

5

twenty cents, or roughly six dollars today), people increasingly relied on cheaper private carriers, imperiling the Post Office’s viability. See A Brief History; Development of Postal Rates at 95. In response, in 1845,

Congress converted the post into a public service and

slashed letter postage to between five and ten cents,

depending on the distance an item was to travel. See

A Brief History. This was apparently a congressional

compromise between the groups that favored a fivecent rate for all mail routes, and those groups (Post

Office officials and some southern legislators) that

wanted a much less radical change or no change at all.

Development of Postal Rates at 96.

Congress continued to set policy in the next four

decades. Id. In 1851, postage was set at three cents

for all destinations except the Far West, with the policy goals of benefiting the frontier population, disseminating knowledge, and spreading literacy. Id. (citing

Senate and House Reports). Id. By 1863, Congress

had removed even that distinction, with all non-local

letters being charged three cents per half ounce, and

in 1883, it reduced that further to two cents, based on

the policy judgment that the government should not

use its monopoly to place an unfair share of postal

costs on letters. Id.

1970 Postal Reorganization Act. Over time,

due to low charges and other dynamics, the volume of

mail exploded and the department racked up big deficits. In response, in 1970, Congress enacted the

Postal Reorganization Act, which replaced the cabinet-level Post Office Department with the United

States Postal Service, which was to operate in a more

businesslike and self-sufficient manner. Franchise

Tax Bd. of Cal. v. U.S. Postal Serv., 467 U.S. 512, 520

6

(1984); Direct Mail Advertising Ass’n, Inc. v. U.S.

Postal Serv., 458 F.2d 813, 817 (D.C. Cir. 1972).

To achieve that policy agenda, Congress mandated that rates and rate increases were to be set so

that revenues would equal costs. Pub. L. No. 91-375,

84 Stat. 760 (codified in former 39 U.S.C. § 3621); see

also Order 4257, JA387; Order 5763, JA2315. Congress tasked the U.S. Postal Service and a new Postal

Rate Commission, the predecessor to the current

Postal Regulatory Commission, with setting rates for

the various categories of mail, subject to the cost-ofservice principle and other requirements. Carlson v.

Postal Regulatory Comm’n, 938 F.3d 337, 340 n.2

(D.C. Cir. 2019).

B. 2006 Postal Accountability and Enhancement Act.

Over time the Service was confronted by a series

of challenges, including declining volume caused by,

among other things, electronic diversion from physical

mail. See, e.g., S. Rep. No. 108-318, at 2–3 (2004);

H.R. Rep. No. 109-66, at 42 (2005). Furthermore, in

Congress’s view, the cost-of-service structure gave the

Postal Service “little or no incentive … to control costs

because all costs are ultimately passed through to the

consumer regardless of how efficiently or inefficiently

the Postal Service operates.” H.R. Rep. No. 109-66,

pt. 1, at 48; accord S. Rep. No. 108-318, at 6.

Congress started considering postal reform legislation in the mid-1990s to address these dynamics.

James I. Campbell, Jr., Summary of the Legislative

History of the Postal Accountability and Enhancement

Act, Public Law 109-435 (2006) 1–2 (Sept. 2007),

https://www.jcampbell.com/unitedstates/paea/20160829_PAEA%20leg%20hist%20refor

7

mat_sum_only.pdf. Various House and Senate committees held dozens of hearings and considered several postal reform bills in the ensuing decade. See id.

at 2–6 & nn.2–15.

What emerged from these painstaking deliberations was H.R. 6407, which was signed into law by

President George W. Bush on December 20, 2006. Id.

at 7. The Act classified the Postal Service’s mail products into two categories: “competitive” and “marketdominant,” 39 U.S.C. § 3642(b)(1). Competitive products (not at issue in this case) are those for which the

Service faces competition from private entities like

FedEx and United Parcel Service, while the marketdominant products at issue in this case are those over

which the Service either “enjoys a statutory monopoly” or “exercises sufficient market power so that it

can effectively dictate the[ir] price … without risk of

losing much business to competing firms.” U.S. Postal

Serv. v. Postal Regulatory Comm’n, 785 F.3d 740, 744

(D.C. Cir. 2015). To protect mailers from the harms

that can attend monopoly power, the new statute gave

the Commission “enhanced review and oversight responsibilities for market-dominant products.” S. Rep.

No. 108-318, at 6–7, 19.

The Act reformulated the Postal Rate Commission

as the Postal Regulatory Commission, an “independent establishment of the executive branch” (39 U.S.C.

§ 501), which was instructed to “establish” a ratemaking system for market-dominant products within

eighteen months. 39 U.S.C. § 3622(a), Pet. App. 194a.

The statute effectuated Congress’s policy choices by

imposing several “requirements” that the system had

to meet. 39 U.S.C. § 3622(d), Pet. App. 197a. Foremost among these was a mandatory price-setting metric: the Act replaced the cost-of-service model with a

8

price cap limiting the annual price increase for classes

of mail to the change in the Consumer Price Index for

All Urban Consumers. 39 U.S.C. § 3622(d)(1), Pet.

App. 197a. This embodied Congress’s policy judgment

that an inflation-adjusted price cap would protect

mailers from the “’unreasonable use of the Postal Service’s statutorily-granted [and de facto] monopoly’

power while creating new pricing flexibility, incentives for the Postal Service to reduce costs, and the

opportunity for the Postal Service to earn a profit.”

U.S. Postal Serv., 785 F.3d at 745 (citing S. Rep. No.

108-318, at 19, brackets in original).

To protect mailers’ interests, Congress also required, among other things, that the system include a

schedule whereby rates would change at regular intervals by predictable amounts, provide an opportunity for notice and comment regarding adjustments,

and limit the Service’s ability to carry over into future

years authority that it chooses not to use. 39 U.S.C. §

3622(d)(1), (2), Pet. App. 197a–200a.

Subject to these statutory requirements, the Commission was authorized to fill up by regulation the details for the ratemaking system, guided by nine objectives and fourteen factors. 39 U.S.C. § 3622(b) & (c),

Pet. App. 194a–197a. The objectives were general

goals—such as “maximiz[ing] incentives to reduce

costs and increase efficiency” and “maintain[ing] high

quality service standards”—rather than requirements. See id. at 194a–195a. The Commission was

instructed to “appl[y]” each objective “in conjunction

with the others.” 39 U.S.C. § 3622(b), Pet. App. 194a.

The factors were likewise general policy considerations rather than hard-and-fast rules. 39 U.S.C. §

3622(c), Pet. App. 195a–197a (noting the “importance

of pricing flexibility,” the “need for the Postal Service

9

to increase its efficiency and reduce its costs,” and “the

policies of [the PAEA] as well as such other factors as

the Commission determines appropriate”). The Act

empowered the Commission to “revise” its work from

“from time to time,” but the statutory requirements

remained sacrosanct. 39 U.S.C. § 3622(a), Pet. App.

194a.

Another provision of the statute, however, required the Commission, ten years after the Act’s enactment, to review the system to determine whether

the objectives were being met. Pet. App. 200a–201a.

“If the Commission determines … that the system is

not achieving th[ose] objectives,” “taking into account

the factors,” the Commission “may, by regulation,

make such modification or adopt such alternative system for regulating rates … for market-dominant products as necessary to achieve the objectives.” Id. at

201a. As described in more detail below, the D.C. Circuit interpreted this language to authorize the Commission to jettison the statutory requirements and to

replace the ratemaking system wholesale. Pet. App.

12a–17a.

C. The Commission’s Ten-Year Review

The Commission began its ten-year review in December 2016 by inviting public comment on how to define the nine objectives and measure whether they

had been achieved. Order 3673, JA1–12. After receiving comments, the Commission issued Order 4257,

which concluded that various dynamics, including the

2007 economic downturn, ever-increasing delivery

points, declining mail volume caused by technological

changes, and retirement-funding obligations imposed

10

on the Service by the PAEA3 had left the Service with

a deficit and impeded its ability to meet its financial

obligations or retain earnings. See Order 5763,

JA2316–18.

Given these findings, the Commission determined

that the system had precluded the Service from

achieving several of the Act’s objectives, to wit, maintaining “financial stability,” maximizing “incentives

to reduce costs and increase operational efficiency,”

and achieving “reasonable rates.” Id. at JA2318–21.

This teed up the question of the scope of the Commission’s power to revise the ratemaking system and,

in particular, to disregard the statutory requirements.

On this issue, throughout the process, Petitioners took

the position that, by its terms, the price cap and other

statutory requirements were mandated by the PAEA

and that the Commission lacked authority to change

them; that if the statute were ambiguous on this

point, the nondelegation doctrine required the statute

to be interpreted as Petitioners advocated; and that a

contrary interpretation would cause the statute to run

afoul of that doctrine. See Order 4258, Pet. App.

166a–177a (discussing comments); Order 5337, Pet.

3 Prior to the PAEA’s enactment, the Service paid its

share of health-insurance premiums for current retirees

and their survivors on a pay-as-you-go basis. See Order

5763, JA2412. Congress altered this in the PAEA by requiring the Service to make payments to the U.S. Treasury

to prefund long-term health benefits for current employees,

retirees, and their survivors. See id. at JA2413; see also 5

U.S.C. § 8906(g)(2)(a), (b). No other governmental or private-sector entity is required to prefund retiree health benefits at this level. Order 5763, JA2413 & n.143.

11

App. 103a–122a (same); Order 5763, Pet. App. 61a–

90a (same).

The Commission rejected these arguments, concluding and reiterating in several orders that the ability to “revise” the initial system under § 3622(a) was

narrower than its ability to “adopt an alternative system” under § 3622(d)(3); that the latter clause unambiguously gave the Commission power to jettison the

statutory requirements and to replace the existing

system wholesale, subject only to the objectives in 39

U.S.C. § 3622(b); that to the extent the statute was

ambiguous on this point, deference was due the Commission’s interpretation under Chevron step two; and

that, so interpreted, the statute did not run afoul of

the nondelegation doctrine. Order 4258, Pet. App.

177a–193a; Order 5337, Pet. App. 122a–158a; Order

5763, Pet. App. 40a–93a.

Over the course of the docket, the Commission issued several sets of proposed modifications, seeking

public comment each time. See Order 5763, JA2322–

31. It ultimately issued a final rule in Order 5763,

JA2305–2788, published at 85 Fed. Reg. 81,124 (Dec.

15, 2020). The final rule allowed the Postal Service to

rely on three “authorities” to seek increases beyond

the rate of inflation. Order 5763, JA 2328–2330.4

4 These were a density authority to recover costs at-

tributable to declines in mail density (Order 5763,

JA2328); a retirement authority to recover the amounts

that the Service is statutorily obligated to pay for its retirees (id. at JA2328–29); and a non-compensatory authority

that would increase the prices for classes whose revenues

do not cover the costs incurred to provide them (id. at

JA2329–30).

12

On July 19, 2021, the Commission formally approved price increases of 6.814% for First-Class Mail,

6.814% for Marketing Mail, 8.771% for Periodicals,

8.804% for Package Services, and 6.808% for Special

Services. Order 5937 at 2, Table I-1, available at

https://www.prc.gov/docs/119/119291/Order%20No.%205937.pdf. These increases are dramatically higher than the CPI-related increases during

the PAEA era, which ranged from 0.8-3.8%. See Order

4257, JA469, Table II-3. The new rates went into effect on August 29, 2021. See Pet’rs’ Mot. for Stay at 3

(July 23, 2021).

D. The D.C. Circuit’s Rulings

Six mailer organizations filed three petitions

(D.C. Cir. Case Nos. 17-1276, 20-1505, and 20-1510)

under 39 U.S.C. § 3663, seeking review from the Commission’s Orders 4257 and 5763. In general, the mailers alleged that the Commission lacked authority to

disregard the statutory requirements, including the

inflation-adjusted price cap, and that the final rule

was arbitrary and capricious. The Postal Service intervened in support of the Commission in all three of

these cases, and also filed its own petition from Order

5763 (D.C. Cir. Case No. 20-1521), alleging that the

order was arbitrary and capricious because it did not

sufficiently address the Service’s financial concerns.

The mailers intervened in the Service’s case. The D.C.

Circuit consolidated the petitions. D.C. Cir. Order

(Dec. 31, 2020).

In December 2020, before the precise amount of

the new rate increases had been determined, the mailers asked the Commission to stay the Commission’s

new rule, which the Commission declined to do. Order

5818, JA2823–48. The mailers then sought a stay

13

from the D.C. Circuit, which denied the motion but expedited consideration of the appeal. D.C. Cir. Order

(Mar. 1, 2021). The mailers renewed their stay motion

after the rate increases were approved, but the D.C.

Circuit again denied the motion. D.C. Cir. Order

(Aug. 24, 2021).

After briefing and oral argument, the D.C. Circuit

ruled in the Commission’s favor on all four petitions.

See Pet. App. A. The Court applied the two-step Chevron framework, which calls for a court to give effect to

the unambiguous terms of a statute and to defer to an

agency’s interpretation insofar as the statute is ambiguous and the agency’s interpretation is a permissible construction of the statute. Pet. App. 49a (citing

Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842–44 (1984)). The court concluded that under the statute’s plain terms, §

3622(d)(3) permitted the Commission, as part of its

ten-year review, to “either make minor changes to the

ratemaking system or replace it altogether.” Pet.

App. 12a. This would include the power to replace the

price cap and the other statutory requirements. Id. at

13a. The court reasoned that there would otherwise

be no meaningful difference between the power to “revise” the ratemaking system under § 3622(a) and the

power to adopt an “alternative” ratemaking system after ten years. Id. at 14a–15a.

In rejecting the mailers’ argument that jettisoning

the statutory requirements would leave the Commission with no statutory limitations on its authority in

contravention of the nondelegation doctrine, the court

reasoned as follows:

A statutory delegation of authority is constitutional so long as Congress has provided an “intel-

14

ligible principle to which the person or body authorized to [act] is directed to conform.” Whitman

v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001)

(quoting J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928)). To date, the Supreme Court has found “the requisite ‘intelligible

principle’ lacking in only two statutes, one of

which provided literally no guidance for the exercise of discretion, and the other of which conferred

authority to regulate the entire economy on the

basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’”

Id. at 474 (citing Panama Refin. Co. v. Ryan, 293

U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935)). Section

3622(d)(3), by contrast, provides an intelligible

principle to guide the Commission by requiring

that alterations to the ratemaking system be “necessary to achieve the objectives” in § 3622(b),

which enumerates nine criteria.

Pet. App. at 16a–17a.

The court also rejected arguments that the revamped system was arbitrary and capricious. Id. at

17a–30a. As the court explained, its review of the

Commission’s revamped system was necessarily limited because the PAEA’s objectives amounted to a balancing test and the court’s “review of agency decisions

based on multi-factor balancing tests … is necessarily

quite limited.” Id. at 18a (internal quotation marks

and sources omitted).

15

REASONS FOR GRANTING THE PETITION

I.

The Court’s Nondelegation Doctrine Imperils Our System of Representative Government and Requires Clarification.

A. The nondelegation principle was essential to the Founders’ understanding of

our constitutional order.

It is axiomatic that our government is one of limited and enumerated powers. The Constitution vests

the authority to exercise different aspects of the people’s sovereign power in distinct entities: In Article I,

the Constitution entrusted the federal government’s

legislative power to Congress; in Article II, it assigned

the executive power to the President; and in Article

III, it gave independent judges the task of applying

the laws to cases and controversies.

The Founders emphasized the need to distinguish

among “the several classes of power, as they may in

their nature be legislative, executive, or judiciary.”

The Federalist No. 48, at 256 (Madison) (G. Carey &

J. McClellan eds. 2001) [hereinafter all references to

The Federalist Papers are to this edition]. The division of powers among the three branches of government was seen to “provide[] a critical protection

against usurpation of the rights of the people.” Ronald

A. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv.

J.L. & Pub. Pol’y 147, 152 (2017) [hereinafter “Cass”].

To be sure, this Court, and Madison before it, have

acknowledged that the lines among these powers are

not always clear. Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 46 (1825); The Federalist No. 37, at 182

(Madison). But however difficult it may be to delineate these powers at the margins, the Constitution

16

“clearly places such a distinction at the center of its

structure.” Gary S. Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327, 342 (2002) [hereinafter

“Lawson”].

Chief Justice Marshall put the distinction among

these powers most succinctly when he said that the

legislature makes, the executive executes, and the judiciary construes. Wayman, 23 U.S. (10 Wheat.) at 46.

More specifically, the founders understood the legislative function to refer to the power to adopt generally

applicable prospective rules of conduct and the power

to prescribe general rules for governing society.

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

(Gorsuch, J., dissenting) (citing sources).

Congress cannot delegate this legislative power to

another branch of government. Marshall Field & Co.

v. Clark, 143 U.S. 649, 692 (1892); Wayman, 23 U.S.

(10 Wheat.) at 42. As John Locke, one of the thinkers

who most influenced the framers’ understanding of

the separation of powers, described it:

The legislative cannot transfer the power of

making laws to any other hands; for it being

but a delegated power from the people, they

who have it cannot pass it over to others.

John Locke, The Second Treatise of Gov’t § 141 (1690),

available

at

https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_III.

As Justice Gorsuch pointed out in dissent in

Gundy, 139 S. Ct. at 2134, the framers insisted on this

arrangement in part to forestall an “excess of lawmaking,” which the framers deemed one of “the diseases to which our governments are most liable.” The

Federalist No. 62, at 321 (Madison). They also did so

17

to ensure that laws were preceded by full-throated deliberation. As Alexander Hamilton explained, “[t]he

oftener the measure is brought under examination,

the greater the diversity in the situations of those who

are to examine it,” and “the less must be the danger of

those errors which flow from want of due deliberation,

or of those mi[s]steps which proceed from the contagion of some common passion or interest.” The Federalist No. 73, at 381 (Hamilton) (discussed at Gundy,

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

Restricting the task of legislating to Congress was

also designed to promote fair notice and the rule of

law, and to allow the populace to hold Congress accountable for its decisions. See Gundy, 139 S. Ct. at

2134 (Gorsuch, J., dissenting). Professor Schoenbrod

has put it thusly: “Unchecked delegation would undercut the legislature’s accountability to the electorate and subject people to rule through ad hoc commands rather than democratically considered general

laws.” David Schoenbrod, The Delegation Doctrine:

Could the Court Give It Substance?, 83 Mich. L. Rev.

1223, 1224 (1985) [hereinafter “Schoenbrod”]. Politicians could take credit for addressing a problem by

sending it to the executive for resolution, but then

turn around and blame the executive for the problems

that arise from the measures the executive pursues.

The executive, in turn, could point to Congress as the

source of the problem, thereby allowing both sides to

“’disguise ... responsibility for the consequences of the

decisions.’” Neomi Rao, Administrative Collusion:

How Delegation Diminishes the Collective Congress,

90 N.Y.U.L. Rev. 1463, 1478 (2015) (quoting Morris P.

Fiorina, Group Concentration and the Delegation of

Legislative Authority, in Regulatory Policy and the Social Sciences 175, 187 (Roger G. Noll ed., 1985)).

18

Finally, the nondelegation doctrine “prevents judicial review from becoming merely an exercise at

large by providing the courts with some measure

against which to judge the official action that has been

challenged.” Arizona v. California, 373 U.S. 546, 626

(1963) (Harlan, J., dissenting in part). For this reason, the Court said in Yakus v. United States, 321 U.S.

414, 426 (1944), that Congress must set forth standards “sufficiently definite and precise to enable Congress, the courts, and the public to ascertain” whether

the executive “has conformed to those standards.”

B. The nondelegation doctrine has become

so elastic as to have lost any clear meaning.

Despite the importance of the doctrine to our constitutional order, this Court has not consistently applied a workable test in its nondelegation decisions.

As one commentator has said, the operative “intelligible principle” test is so vague that it has “allowed the

interpretation of the delegation doctrine to swing like

a pendulum with the changing politics of the Court

and the times.” Schoenbrod, 83 Mich. L. Rev. at 1226.

Things were not always this way. In 1935, in

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

Court struck down a statute that transferred to the

President the power “to approve ‘codes of fair competition’” for slaughterhouses and other industries, if the

President finds, among other things, that the codes

are not designed “to promote monopolies” and “will

tend to effectuate the policy” behind the statute. 295

U.S. 495, 521–523 (1935). The policies behind the

statute “embrace[d] a broad range of objectives,” including removing obstructions to the free flow of commerce, providing for the general welfare, promoting

cooperative action among trade groups, inducing

19

united action of labor and management, eliminating

unfair competition, promoting productivity of industries, avoiding undue restrictions on production, increasing the consumption of industrial and agricultural products by increasing purchasing power, reducing unemployment, improving standards of labor, rehabilitating industry, and conserving natural

resources. Id. at 534–35. The Court struck down this

regime on the ground that it “sets up no standards,

aside from the statement of the general aims of rehabilitation, correction, and expansion,” which the Court

characterized as “a preface of generalities.” Id. at 537,

541. The Court contrasted the statute at issue with

ones in which Congress “’declar[es] the rule which

shall prevail in the legislative fixing of rates,’ and then

remit[s] ‘the fixing of such rates’ in accordance with

its provisions ‘to a rate-making body.’” Id. at 541

(quoting J.W. Hampton, 276 U.S. at 409).

The same year, in Panama Refining Co. v. Ryan,

293 U.S. 388 (1935), the Court considered a statute

that authorized the President to decide whether and

how to prohibit the interstate transportation of petroleum produced or withdrawn from storage in excess of

state-set quotas. Congress had specified the objectives of the statute—removing obstructions to the free

flow of commerce, encouraging productivity, and conserving natural resources—but the Court struck down

the statute nonetheless, because “[a]mong the numerous and diverse objectives broadly stated, the President was not required to choose.” Id. at 418. That is,

“Congress has declared no policy, has established no

standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in

which the transportation is to be allowed or prohibited.” Id. at 430.

20

Since the Court decided A.L.A. Schechter and Panama Refining Co., however, the nondelegation doctrine has been hijacked by an intelligible-principle

test that fails to provide clear parameters for how and

when Congress can delegate to the executive branch.

This Court first used that phrase in J.W. Hampton,

276 U.S. at 401, where the Court considered legislation that directed the President to “investigat[e]” the

relative costs of production for American companies

and their foreign counterparts and impose tariffs or

duties that would “equalize” those costs. In upholding

the statute, the Court remarked that a statute

“lay[ing] down by legislative act an intelligible principle to which the [executive official] is directed to conform” satisfies the separation of powers. Id. at 409.

To be sure, this language sounds as if a statute

must provide an actual rule if it is to pass constitutional muster. And that may indeed have been what

the Court meant. See Gundy, 139 S. Ct. at 2139 (Gorsuch, J., dissenting). But in the ensuing years, the

phrase was sometimes interpreted to mean that Congress need only pronounce a vague set of goals, even

if these announced goals bear no resemblance to

standards or rules and, indeed, conflict with one another. See Schoenbrod, 83 Mich. L. Rev. at 1229. On

occasion, the pendulum swung so far in this direction

that the Court upheld statutes in which Congress offered almost nothing to guide the rule-making process

other than, perhaps, general pronouncements about

advancing the public interest. See, e.g., Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (upholding portions of

the Home Owners Loan Act of 1933 authorizing the

Federal Home Loan Bank Board to prescribe regulations and conditions for the liquidation of savings and

loan associations); United States v. Rock Royal Co-op.,

Inc., 307 U.S. 533, 577 (1939) (upholding Agricultural

21

Marketing Agreement Act authorizing the Secretary

of Agriculture to fix minimum prices for farm commodities at levels that would “provide adequate quantities of wholesome milk and be in the public interest”).

In more recent years, the pendulum has swung

the other way. This has principally taken the form of

the Court’s narrowing statutes to impose standards

and rules not explicit on the face of statutes themselves. In 1974 Justice Douglas wrote for the Court in

National Cable Television Association v. United

States, 415 U.S. 336, 342 (1974), invoking nondelegation concerns to narrow a statute that appeared to delegate Congress’s power to levy taxes. Similarly, in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980), five Justices

voted to overturn an action taken under the Occupational Safety and Health Act. Four of them reached

this result by, inter alia, narrowly interpreting the Act

to avoid an unconstitutionally broad delegation. Id.

at 645–46. The fifth, Justice Rehnquist, argued that

this portion of the Act should in fact be struck down

as unconstitutional. Id. at 671–88 (Rehnquist, J., concurring).

In Whitman v. American Trucking Associations,

Inc., 531 U.S. 457 (1999), the Court considered §

109(b)(1) of the Clean Air Act, which authorized the

EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of

the Administrator [of the Environmental Protection

Agency] … are requisite to protect the public health.”

In upholding the statute, the Court stated that it was

“interpret[ing the statute] as requiring the EPA to set

air quality standards at the level that is ‘requisite’—

22

that is, not lower or higher than is necessary—to protect the public health with an adequate margin of

safety.” Id. at 475–76.

Most recently, in Gundy, the Court addressed the

federal Sex Offender Registration and Notification

Act (SORNA), which imposed registration requirements on those found guilty of a sex offense but gave

the Attorney General discretion to specify the applicability of the statute to individuals convicted of a sex

offense before SORNA’s enactment. The majority relied on a case that this Court had previously decided—

Reynolds v. United States, 565 U.S. 432 (2012)—to

conclude that the statute required the Attorney General to register pre-Act offenders “as soon as feasible,”

even though SORNA itself said no such thing. 139 S.

Ct. at 2130. This prompted the dissenters to opine

that the majority was “reimagin[ing]” and rewrit[ing]”

the statute to allow it to avoid “the chopping block.”

Id. at 2148 (Gorsuch, J., dissenting). See also id. at

2141 (describing Touby v. United States, 500 U.S. 160

(1991), as involving a situation in which the Court recast the statute as conferring on the Attorney General

a fact-finding responsibility).

The Court has also invoked other doctrines—especially the major-questions doctrine—to place limits on

the power of Congress to delegate. See, e.g., King v.

Burwell, 576 U.S. 473, 485–86 (2015) (holding that,

with respect to questions of deep economic and political significance, step-two Chevron deference would

not apply). See also Gundy, 139 S. Ct. at 2141–42

(Gorsuch, J., dissenting) (discussing other doctrines

that have taken up the slack).

These developments have been driven in part by

the fact that the nondelegation doctrine has become

“unavailable to do its intended work.” Id. at 2141.

23

And while narrowing a statute’s reach may serve to

limit congressional delegations to the executive, it

gives rise to a different problem: “If the nondelegation

doctrine seeks to promote legislative responsibility for

policy choices and to safeguard the process of bicameralism and presentment, it is odd for the judiciary to

implement it through a technique that asserts the

prerogative to alter a statute’s conventional meaning

and, in so doing, to disturb the apparent lines of compromise produced by the legislative process.” John F.

Manning, The Nondelegation Doctrine as a Canon of

Avoidance, 2000 S.C.T.R. 223, 224 (2000). Narrowing

constructions are also in tension with a textualist’s

approach to statutory interpretation. Cf. id. at 226.

C. Scholars and Justices have agreed that

the doctrine needs a reboot.

Justices, lower court judges, and academics have

roundly acknowledged that the nondelegation doctrine has come loose from its moorings, with substantial consequence to our democratic ideals.

Several Justices currently sitting on the Court

have opined that the mutated version of the “intelligible principle” remark has no basis in the original

meaning of the Constitution and that the doctrine

begs for refinement. See, e.g., Gundy, 139 S. Ct. at

2131–48 (Gorsuch, J., dissenting, with Roberts, J.,

and Thomas, J., joining); id. at 2131 (Alito, J., concurring) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84

years, I would support that effort.”); see also Dep’t of

Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 77

(2015) (Thomas, J., concurring in judgment) (“Although the Court may never have intended the boundless standard the ‘intelligible principle’ test has be-

24

come, it is evident that it does not adequately reinforce the Constitution’s allocation of legislative

power.”); Whitman, 531 U.S. at 487 (Thomas, J., concurring) (“On a future day, …, I would be willing to

address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”).

Scholars on all sides of the political spectrum have

likewise urged the Court to bring its case law in line

with constitutional principles. Schoenbrod, 83 Mich.

L. Rev. at 1236 (“Thinkers as diverse as Skelly

Wright, John Ely, William Douglas, and James Freedman have expressed interest in the [nondelegation

doctrine’s] revival.”) (internal footnotes and citations

omitted); see also Gundy, 139 S. Ct. at 2140 & n.62

(Gorsuch, J., dissenting) (collecting sources). Academics have not minced words. Professor Lawson has said

that some of this Court’s cases have declared the intelligible-principle standard “satisfied by any collection of words that Congress chose to string together.”

Lawson, 88 Va. L. Rev. at 371. Professor Cass has

said that the “even the vaguest, most incoherent set of

mutually incompatible goals can satisfy the ‘intelligible principle’ test” and has criticized the Court for giving “flaccid and contradictory instructions.” Cass, 40

Harv. J.L. & Pub. Pol’y at 167, 170. And Professor

Hamburger has stated that “the notion of an ‘intelligible principle’ sets a ludicrously low standard for

what Congress must supply.” Philip Hamburger, Is

Administrative Law Unlawful 378 (2014).

Judges and scholars have also appreciated the

dire consequences of retaining this “ludicrously low

standard” (id.): “[B]y refusing to legislate, our legislators are escaping the sort of accountability that is

crucial to the intelligible functioning of a democratic

25

republic.” John Hart Ely, Democracy and Distrust, a

Theory of Judicial Review 132 (1980). As Judge Skelly

Wright has observed:

When Congress is too divided or uncertain to

articulate policy, it is no doubt easier to pass

an organic statute with some vague language

about the “public interest” which tells the

agency, in effect, to get the job done. But

while this observation is no doubt correct, it

seems to me to argue for a vigorous reassertion of the delegation doctrine rather than

against it. An argument for letting the experts decide when the people’s representatives are uncertain or cannot agree is an argument for paternalism and against democracy.

Beyond Discretionary Justice, 81 Yale L.J. 575, 584–

85 (1972).

So by what more precise standard should a delegation be judged? The Court’s seminal formulation of

the test was that it is not enough for Congress simply

to specify a “broad range of objectives,” “preface of generalities,” or “statement of … general aims.” A.L.A.

Schechter, 295 U.S. at 534, 537, 541. Instead, Congress must “declar[e] the rule which shall prevail.” Id.

at 541 (quoting J.W. Hampton, 276 U.S. at 409); see

also Panama Refining Co., 293 U.S. at 430 (requiring

Congress to lay down a rule); Am. Power & Light Co.

v. Sec. and Exch. Comm’n, 329 U.S. 90, 105 (1946)

(asking whether Congress had made clear to the delegee the “boundaries of this delegated authority”).

Most recently, Justice Gorsuch has opined that we

must ask:

Does the statute assign to the executive only

the responsibility to make factual findings?

26

Does it set forth the facts that the executive

must consider and the criteria against which

to measure them? And most importantly, did

Congress, and not the Executive Branch,

make the policy judgments? Only then can we

fairly say that a statute contains the kind of

intelligible principle the Constitution demands.

Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting).

Many academics have likewise taken the position

that Congress cannot simply lay out a vague set of

goals, but must set rules that the agency must abide.

See, e.g., Schoenbrod, 83 Mich. L. Rev. at 1254. Allowing Congress to pass “goals statutes,” which enable

legislators to escape the difficult, value-laden choices

implicit in balancing competing policy goals and distributing rights and benefits among different groups

in the population, frustrates judicial review and congressional electoral accountability. Id.

As Professor Redish has explained, while legislators need not make every conceivable choice embodied

in a statute, they must make those choices that are

necessary to ensure the political responsibility contemplated by the Constitution’s scheme of representation. See Martin H. Redish, The Constitution as Political Structure 135–61 (1995). For Professor Barber,

Congress has behaved permissibly “as long as it can

be said that Congress has arrived at a clear policy decision among salient alternatives and that the delegations in question are instrumental to such decisions.”

Sotirios A. Barber, The Constitution and the Delegation of Congressional Power 40–41 (1975). Similarly,

Professor Lawson has taken the position that Congress must make “the central, fundamental decisions,

27

but … can leave ancillary matters to the President or

the courts.” Lawson, 88 Va. L. Rev, at 377.5

The “job of keeping the legislative power confined

to the legislative branch [cannot] be trusted to self-policing by Congress.” Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting). Accordingly, only the judicial

branch—and, in particular, this Court—can bring

about this needed realignment.

II. The PAEA Sounds All of the Alarms That the

Nondelegation Principle Is Designed to Address.

The conferral of power to the Commission to rewrite postal ratemaking policy via the PAEA’s tenyear review process is a blatant delegation of legislative power under any standard other than the most

watered-down version of the intelligible-principle test.

Absent the Court’s intervention, this delegation will

have massively deleterious consequences for the Petitioners and, indeed, for the country.

5 Academics and Justice Gorsuch in his Gundy dissent have

explained that many of the results the Court has reached under

the intelligible-principle doctrine are consistent with a more robust nondelegation test. See, e.g., Schoenbrod, 83 Mich. L. R. at

1227; Gundy 139 S. Ct. 2139 (Gorsuch, J., dissenting) (discussing

J. W. Hampton, 276 U.S. 394)); id. at 2140 & n.65 (citing Skinner

v. Mid-America Pipeline Co., 490 U.S. 212 (1989)). Still other

decisions were correct because they involved delegations regarding matters already within the scope of executive power. See

Schoenbrod, 83 Mich. L. Rev. at 1260–63; Gundy, 139 S. Ct. at

2140 & n.64 (Gorsuch, J., dissenting) (discussing Loving v. U.S.,

517 U.S. 748 (1996)).

28

A. As interpreted by the court below, the

PAEA reflects congressional abdication

of responsibility for making difficult and

important policy choices.

As Judge J. Skelly Wright has observed, it comes

“at the expense of democratic decisionmaking” when

Congress decides that it no longer wishes to wrestle

with a problem and “passes some ‘soft’ statutes which

throw the mess into the lap of an administrative

agency.” Beyond Discretionary Justice, 81 Yale L.J.

575, 585-86 (1972).

Under the interpretation given to the PAEA by

the court below, that is exactly what happened here.

For over 200 years, Congress took responsibility for

considering the alternatives and making the hard policy decisions about the role the Postal Service should

play in the country and how to ensure that it operates

effectively and efficiently. Congress went from setting

prices directly, to requiring postal rates to keep pace

with the Service’s costs, to limiting rate increases to

the rate of inflation. See supra Statement. The deliberative process that led to the adoption of the inflation-adjusted approach was ten years in the making.

Congress held hearings, weighed options, and reconciled the differences between the bills passed by each

chamber of Congress. See id.

In every one of these iterations, Congress set the

overall rules to govern the postal rate-setting system

and then, starting in 1970, let an executive agency fill

up the details. But then, under the D.C. Circuit’s interpretation of the PAEA, Congress threw up its

hands: If, ten years after the passage of the Act, the

Commission concluded that the system Congress devised was not working, the Commission was free to re-

29

place the system wholesale. Pet. App. 12a–17a. Senator Collins, the primary Senate sponsor of the conference bill, described this arrangement as follows:

After 10 years, the Postal Regulatory Commission will review the rate cap and, if necessary, and following a notice and comment period, the Commission will be authorized to

modify or adopt an alternative system. While

this bill provides for a decade of rate stability,

I continue to believe that the preferable approach was the permanent flexible rate cap

that was included in the Senate-passed version of this legislation. But, on balance, this

bill is simply too important, and that is why

[the conferees] have reached this compromise

to allow it to pass. We at least will see a decade of rate stability, and I believe the Postal

[Regulatory] Commission, at the end of that

decade, may well decide that it is best to continue with a CPI rate cap in place. It is also,

obviously, possible for Congress to act to reimpose the rate cap after it expires.

152 Cong. Rec. S11,675 (daily ed. Dec. 8, 2006) (statement of Sen. Collins). Senator Collins’s statement

shows that Congress viewed the PAEA’s price cap as

reflecting important legislative work over which Congress had deliberated at length, but that, under the

Senator’s interpretation of the statute, Congress was

empowering the Commission unilaterally to undo that

legislative compromise and to substitute its own judgment on how postal rates should be set ten years

hence. One would be hard-pressed to find a more

clear-cut instance of Congress’s passing legislative

work to an executive agency.

30

B. The statutory objectives that Congress

laid out lack any prescriptive effect.

The D.C. Circuit held that, pursuant to its tenyear-review authority, the Commission was free to jettison all of the congressional requirements and start

from scratch in building a postal rate-setting system.

Pet. App. 12a-17a. This did not create a nondelegation problem, in the panel’s view, because the objectives in § 3622(b) enumerate nine criteria that provide

sufficient guidance to serve as an intelligible principle

that saves the scheme from infirmity. Pet. App. 16a–

17a.

These objectives are to: (1) “maximize incentives

to reduce costs and increase efficiency”; (2) “create

predictability and stability in rates”; (3) “maintain

high quality service standards”; (4) “allow the Postal

Service pricing flexibility”; (5) “assure adequate revenues, including retained earnings, to maintain financial stability”; (6) “reduce the administrative burden

and increase the transparency of the ratemaking process”; (7) “enhance mail security and deter terrorism”;

(8) “maintain a just and reasonable schedule for

rates”; and (9) “allocate the total institutional costs of

the Postal Service appropriately between marketdominant and competitive products.” 39 U.S.C. §

3622(b), Pet. App. 194a–95a.

This is nothing more than a “broad range of objectives” or “statement of … general aims.” A.L.A.

Schechter, 295 U.S. at 534, 541. The objectives simply

do not declare a “rule which shall prevail.” Id. at 541

(quoting J.W. Hampton, 276 U.S. at 409). For example, how do we know when and if incentives have been

maximized enough? At what point do rates become

inflexible, unpredictable, or unstable? When are service standards too low? How much revenue is enough

31

or too little to ensure financial stability? When is the

administrative burden too high and when does the

process become too opaque? When is mail security or

the risk of terrorism compromised too much? The objectives provide no answers to these questions. By enacting them, Congress “has declared no policy, has established no standard, has laid down no rule. There is

no requirement, no definition of circumstances and

conditions in which [action] is to be allowed or prohibited.” Panama Refining Co., 293 U.S. at 430. Indeed,

the objectives are so loose that nothing would have

prevented the Commission from reverting to the costof-regime system that Congress created in 1970 and

then abolished in 2006.

To make matters worse, many of these objectives

point in competing directions, as both the Commission

and the court below recognized. “[S]ome aspects of the

objectives are in tension with each other, whereas

other aspects may overlap.” Order 5763, JA2592. The

Commission explained, for example, that disallowing

greater-than-inflation increases would further one objective, but frustrate others; while allowing the Commission to recover all of its costs would further some

objectives at the sacrifice of others. Id. at JA2608. In

light of these tensions, the Commission acknowledged

that it had to exercise judgments on “tradeoffs.” Id. at

JA2608–09. The court below similarly recognized the

tension between, for example, achieving financial stability, on the one hand, and incentivizing cost-cutting

and efficiency improvements and achieving predictable and stable rates, on the other hand. Pet. App. 27a–

28a.

But balancing competing objectives and making

judgments on tradeoffs is precisely what legislating is.

And while we might be prepared to allow agencies to

32

fill in the details, or even to make tradeoffs on subsidiary issues once Congress has laid out broad governing rules, here, Congress laid out no rules at all. And

while the statute provides that the Commission shall

“appl[y]” each objective “in conjunction with the others” (39 U.S.C. § 3622(b), Pet. App. 194a), it sets no

standard for how the balancing of competing considerations is to be done.

Furthermore, because Congress failed to set any

such standard, it is impossible for the courts to engage

in any meaningful judicial review of the agency’s

choice of priorities among competing policy goals or to

determine whether Congress’s directions have been

followed. So long as the agency followed statutory procedures, gave lip service to each goal, and cloaked its

decision with a modicum of rationality, the Commission has unfettered discretion in assigning weight to

each goal. As the D.C. Circuit said here, the court’s

“review of agency decisions based on multi-factor balancing tests … is necessarily quite limited.” Pet. App.

18a. Thus, by adopting a regime that punts the issue

to an administrative agency, subject only to an amorphous balancing test, Congress has avoided meaningful accountability not only for itself, but even for the

agency to which it punted.

C. The country and its mailers will experience substantial harm under the Commission’s regime, for which Congress is

now unaccountable.

The “basic function” of the Postal Service is “to

bind the Nation together through the personal, educational, literary, and business correspondence of the

people.” 39 U.S.C. § 101(a). The Service heralds this

role:

33

At every home and business, and in every

community in America, the United States Postal

Service plays an indispensable role in the daily

experience of the American public. The secure, affordable, reliable, and universal delivery of mail

and packages we provide helps drive commerce,

connect people to one another, and bind the nation

together as we have done throughout our rich history.

U.S. Postal Serv., Fiscal Year 2021 Annual Report to

Congress, https://about.usps.com/what/financials/annual-reports/fy2021.pdf.

The Covid-19 pandemic has highlighted the critical nature of this role. As the Service itself explains,

“[w]e’re on the front lines—delivering needed medicines, supplies, benefit checks, financial statements

and the important correspondence every family

counts on.” U.S. Postal Serv., Delivering for America

during

COVID-19,

https://about.usps.com/newsroom/covid-19/); see also Popular Science, The Postal

Service helps keep millions of Americans alive and

well

(Aug.

20,

2020),

https://www.popsci.com/story/science/us-postal-service-keeps-americans-healthy/.

The nation’s needs and how best to fulfill them

have figured prominently in past congressional deliberations in this area. But by having punted to an executive agency, Congress can now avoid responsibility

for what ensues. Consumer Reports will pay an additional $1.78 million in postage in the next year, and

more than $9 million cumulatively in extra postage

from 2021–2025. See Ex. 10 to Pet’rs’ Mot. for Stay,

Brophy Decl. at ¶ 13. The American Lung Association

will spend an additional $400,000 in postage next

year, and more than $1.5 million in extra postage from

34

2021–2015. See id. at Ex. 11, Finstad Decl. at ¶ 11.

Disabled American Veterans estimates that it will pay

“nearly half a million dollars in additional costs this

year alone, and one and a half million dollars in additional costs in 2022.” Id. at Ex. 12, Burgoon Decl. at

¶ 10.

For smaller mailers such as local or regional

newspaper and magazine publishers, these increased

postage costs will be devastating. See id. at Ex. 13,

Wood Decl. at ¶¶ 17-18 (stating that increased postage costs of $194,298 this year will exceed Wisconsin

publishing company’s average net earnings over the

past three years “and cause the company to continue

to lose money even with planned efficiency changes to

our operation”); id. at Ex. 14, Trowbridge Decl. at ¶ 5

(stating that $93,727 in additional postage costs this

year will wipe away half of Yankee Magazine’s margins).

These increased costs will force some mailers to

reduce mailings and correspondingly diminish their

ability to inform, educate, and advocate to the public.

See, e.g., id. at Ex. 13, Wood Decl. at ¶ 19 (stating that

Wisconsin publishing company will be “reducing news

coverage and providing less service to our customers”

because of increased postage costs). And many mission-driven organizations will be forced to divert

funds from critical activities that benefit vulnerable

populations. See, e.g., id. at Ex. 15, Hamre Decl. at ¶

11 (explaining that the additional $1.7 million in postage fees that the Wounder Warrior Project will need

to pay in the coming year will compromise the nonprofit’s ability to provide veterans with much-needed

mental health services); id. at Ex. 12, Burgoon Decl.

at ¶ 11 (explaining that increased postage costs will

translate into reduced mailings and, in turn, impact

35

Disabled American Veterans’ ability to provide veterans with rides to medical appointments and counseling services).

These are grave—and for some mailers, existential—consequences, but because it did not devise the

system under which the country and Petitioners now

labor, Congress is not accountable for them. Only by

righting the constitutional regime and requiring Congress to assume responsibility for legislative judgments, can this lack of accountability be redressed.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

AYESHA N. KHAN

Counsel of Record

WILLIAM BAKER

Potomac Law Group, PLLC

1300 Pennsylvania Avenue, NW,

Suite 700

Washington, DC 20004

(202) 836-7136

akhan@potomaclaw.com

Counsel for Petitioners

FEBRUARY 2022