Amicus Curiae Brief — Thomas H. Buffington, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefFeb 4, 2022

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No. 21-972

IN THE

Supreme Court of the United States

_________________________________________________

THOMAS H. BUFFINGTON,

Petitioner,

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

CONCERNED VETERANS FOR AMERICA FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

February 4, 2022

TABLE OF CONTENTS

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

Brief of Amicus Curiae in Support of Petitioner ........ 1

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

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

Argument ....................................................................... 6

II.

Chevron Deference Violates the Separation of

Powers and Threatens Individual Liberty ......... 6

The Separation of Powers and Our

Constitution’s Promise of an Independent

Judiciary Protect Individual Liberty.......... 6

Chevron Deference Threatens Individual

Liberty by Transferring Legislative and

Judicial Powers to the Executive .............. 10

Chevron Stacks the Deck Against the

American People ................................... 13

Chevron Transfers Legislative Powers to

Unelected Executive Officials .............. 13

Chevron Transfers Judicial Authority to

Unelected Executive Officials .............. 16

Chevron and Its Constitutionally

Challenged Companion, Brand X, Are At

Odds with Due Process ......................... 17

Chevron Violates the APA ................................. 21

Conclusion ................................................................... 22

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .........................................13

Baldwin v. United States,

140 S. Ct. 690 (2020) ........ 9, 11, 12, 17, 19, 20, 22

Biden v. Missouri,

595 U.S. ____ (2022) ............................................14

Bond v. United States,

564 U.S. 211 (2011) ...............................................8

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) .............................................20

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ..............................21

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) ..................................... passim

Chi. & S. Air Lines, Inc. v. Waterman S.S.

Corp.,

333 U.S. 103 (1948) .............................................19

City of Arlington v. FCC,

569 U.S. 290 (2013) ................................ 15, 16, 17

Cnty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) .........................................11

iii

Cuozzo Speed Techs., LLC v. Lee,

579 U.S. 261 (2016) .............................................15

De Niz Robles v. Lynch,

803 F.3d 1165 (10th Cir. 2015) ..........................19

DOT v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ...............................................14

FCC v. Fox TV Stations, Inc.,

567 U.S. 239 (2012) .............................................20

Guedes v. BATFE,

140 S. Ct. 789 (2020) ...........................................18

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................6, 7

Gutierrez-Brizuela v. Lynch,

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

King v. Burwell,

576 U.S. 473 (2015) ...................................... 15, 16

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ........................ 5, 11, 12, 13

Loving v. United States,

517 U.S. 748 (1996) ...............................................7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................7, 8

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ..........................6, 7

Michigan v. EPA,

576 U.S. 743 (2015) .................................. 7, 14, 16

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs.,

545 U.S. 967 (2005) .............................................19

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

595 U.S. ____ (2022) ..........................................6, 7

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ............................ 10, 11, 12

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) .................................................9

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) ................. 6, 8, 9, 16

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ...............................6, 8

United States v. Dickson,

40 U.S. 141 (1841) ...............................................10

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................21

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019) ..............................12

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 ............................................8

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ...............................................3

Constitution

U.S. Const. Art. I, §1 ........................................... 7, 16

U.S. Const. Art. II, § 3 ................................................7

U.S. Const. Art. V .....................................................13

Statutes

5 U.S.C. § 706 ............................................................21

Rules

Sup. Ct. Rule 37.2 .......................................................1

Other Authorities

Abbe R. Gluck, What 30 Years of Chevron

Teach Us About the Rest of Statutory

Interpretation,

83 Fordham L. Rev. 607 (2014)..........................20

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 Yale L.J. 908 (2017) .....................................22

Brett M. Kavanaugh,

Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) .............. 14, 15, 21

Gary Lawson & Stephen Kam,

Making Law Out of Nothing At All: The

Origins of the Chevron Doctrine,

65 Admin. L. Rev. 1 (2013) .................................11

Gus Hurwitz, Chevron’s Political Domain:

W(h)ither Step Three?,

68 DePaul L. Rev. 615 (2019) .............................11

Neil Gorsuch et al., A Republic, If You Can

Keep It (2019) ....................... 3, 4, 8, 11, 13, 17, 18

Richard J. Pierce, Jr., The Combination of Chevron

and Political Polarity Has Awful Effects,

70 Duke L.J. Online 91 (2021) .................... 18, 19

The Federalist No. 47 .................................................8

The Federalist No. 78 ...................................... 8, 9, 10

Tr. of Oral Arg., Am. Hosp. Ass’n v. Becerra,

No. 20-1114 (U.S. Nov. 30, 2021) .......................11

Tr. of Oral Arg., Becerra v. Empire Health

Found., No. 20-1312 (U.S. Nov. 29, 2021) .......4, 5

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, Concerned

Veterans for America Foundation (“CVAF”)

respectfully submits this amicus curiae brief in

support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae CVAF is a grassroots education

project of Americans for Prosperity Foundation, which

is a 501(c)(3) nonprofit organization committed to

educating and training Americans to be courageous

advocates for the ideas, principles, and policies of a

free and open society. CVAF’s purpose is to empower

the military community with the tools to promote

freedom at home and to connect veterans in need with

free market solutions to help them live healthy and

prosperous lives. CVAF’s mission is to empower

veterans, military families, and concerned citizens

with the tools they need to champion the principles of

a free society; educate the military community on the

benefits of laws and policies that preserve and

advance the freedoms they fought to protect; and

connect veterans with the available resources that

will assist them to live healthy and prosperous lives

at home.

All parties have consented to the filing of this brief after

receiving timely notice. No counsel for a party authored this brief

in whole or in part and no person other than amicus made any

monetary contributions intended to fund the preparation or

submission of this brief.

Working in local communities in numerous states

across the country, CVAF trains and builds local

networks of citizens who understand and care about

important issues facing our nation and our veterans,

such as ensuring veterans receive the health care and

benefits they were promised and have earned,

including benefits administered by the Veterans

Benefits

Administration

and

health

care

administered by the Veterans Health Administration,

particularly those required but currently being

withheld by the VA under the Veterans Community

Care Program of the VA Maintaining Internal

Systems and Strengthening Integrated Outside

Networks Act of 2018 (“VA MISSION Act”), Pub. L.

No. 115-182, 132 Stat. 1393 (2018).

Due to CVAF’s focus on veterans’ health and

prosperity, CVAF is interested in holding the VA

accountable for consistently serving a veteran’s best

interests. More broadly, CVAF believes due process

and fairness demand that private litigants, like Mr.

Buffington—a disabled veteran who honorably served

his country for over nine years—should be on equal

footing with the government in disputes adjudicated

in Article III courts.

SUMMARY OF ARGUMENT

In this country, all government power must flow

from its proper source: We the People. Our system of

government relies on the consent of the governed

memorialized in the U.S. Constitution. The People

have agreed on a system of separated powers, in which

the legislative, executive, and judicial branches

function as checks and balances on one another,

ensuring accountability and protecting liberty. Our

Constitution does not grant legislative or judicial

powers to the Executive Branch, nor does it permit the

transfer of these powers to administrative bodies.

But over time judicially-developed deference

regimes have emerged that effectively transfer core

Article III judicial powers (and core Article I

legislative powers) to unelected federal bureaucrats,

putting a thumb on the scale in favor of the nation’s

most powerful litigant—the federal government—

thereby rigging the game against the American

people. So too here.

These deference doctrines are difficult, if not

impossible, to square with the Constitution and the

Administrative Procedure Act (“APA”), ultimately

resulting in extraconstitutional power-transfers that

violate bedrock separation-of-powers principles upon

which our hard-won system of checks and balances

was built.

The Court should squarely overrule Chevron,

U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), and

the Petition provides this Court with an ideal

opportunity to do so. For as Justice Frankfurter

warned, “[t]he accretion of dangerous power does not

come in a day. It does come, however slowly, from the

generative force of unchecked disregard of the

restrictions”

imposed

the

Constitution.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 594 (1952) (Frankfurter, J., concurring). And as

Justice Gorsuch observed more recently: “Like a tower

in the game of Jenga, pull out this block or that one

and the tower may seem unaffected, especially if you

do it with a bit of finesse—and the lawyers who come

up with the justifications for the blending of powers

have plenty of that. But keep pulling out blocks, and

eventually what started out as a strong and stable

tower will begin to teeter.” Neil Gorsuch, A Republic,

If You Can Keep It, 73 (2019).

Chevron removed foundational blocks from our

Constitution’s system of checks and balances by

transferring core judicial and legislative powers to the

Executive. In so doing, it provided bureaucrats a

powerful tool to chisel away at the separation of

powers that protect liberty, as they creatively

reimagine and expand their powers. If nothing else,

these bureaucrats have proven to be remarkably

proficient at that constitutionally dubious task.

In addition to being unconstitutional, Chevron is

profoundly undemocratic. The real-world harms to the

American people flowing from the administrative

excesses it has enabled cannot be overstated. As a

practical matter, Chevron provided the pathway for

unelected administrative officials housed within a

warren of extraconstitutional administrative bodies to

enforce unpopular policies, by claiming “force of law,”

where no such law was ever enacted by Congress.

Perhaps worse, Chevron deference causes concrete

and particularized real-world harms to ordinary

citizens, like Mr. Buffington. As Justice Gorsuch

recently observed at oral argument in another

Chevron-infected dispute:

Chevron is very often asserted by the

government to defend an interpretation

that not only few people were given any

advance notice of or understood, or

maybe they were too exhausted to

understand by the time it all was

adopted, but also tends to favor the

government’s own pecuniary interests[.]

Tr. of Oral Arg. at 29, Becerra v. Empire Health

Foundation, No. 20-1312 (U.S. Nov. 29, 2021)

(Gorsuch, J.). That is exactly what happened to Mr.

Buffington, a disabled U.S. Air Force veteran who

served his country honorably for over nine years. See

Pet. 6–10. Chevron was deployed here to shortchange

Mr. Buffington of his hard-earned benefits based on

an ultra vires VA regulation that “[q]uite simply . . .

serves no purpose other than to deny disability

benefits (and other critical retirement benefits) to

veterans entitled to them solely because these men

and women answered the call to return to active

duty.” Pet. App. 29a–30a (O’Malley, J., dissenting); see

Pet. 8–10; see also Pet. App. 56a (Greenberg, J.,

dissenting) (“The majority opinion reflects nothing

more than a rubber stamping of the Government’s

attempt to misuse its [regulatory] authority[.]”). The

VA’s wrongful actions should not be allowed to stand.

This practice of courts reflexively deferring to

agencies under Chevron, which burdens businesses

and restricts individual liberty, without fair notice of

what the law prohibits or requires, has gone on for far

too long. The time has come for this Court to “stop this

business of making up excuses for judges to abdicate

their job of interpreting the law, and simply allow the

court[s] . . . to afford” private parties, like Mr.

Buffington, their “best independent judgment of the

law’s meaning.” Kisor v. Wilkie, 139 S. Ct. 2400, 2426

(2019) (Gorsuch, J., concurring in the judgment). This

Court should grant Mr. Buffington’s Petition and put

an end to the judge-made Chevron regime.

ARGUMENT

CHEVRON

DEFERENCE

VIOLATES

THE

SEPARATION OF POWERS AND THREATENS

INDIVIDUAL LIBERTY.

A. The Separation of Powers and Our

Constitution’s Promise of an Independent

Judiciary Protect Individual Liberty.

“Our founding document begins by declaring that

‘We the People . . . ordain and establish this

Constitution.’ At the time, that was a radical claim,

an assertion that sovereignty belongs not to a person

or institution or class but to the whole of the people.”2

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

(Gorsuch, J., dissenting). Under our Constitution,

“[t]he government proceeds directly from the people[.]

. . . In form and in substance it emanates from them.

Its powers are granted by them, and are to be

exercised directly on them, and for their benefit.”

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403–

05 (1819) (Marshall, C.J.). And in our constitutional

Republic, “[t]he federal government’s powers . . . are

2 Notably, “the Constitution vests lawmaking power in the most

politically accountable branch of our government—the Congress

of the United States.” Texas v. Rettig, 993 F.3d 408, 408 (5th Cir.

2021) (Ho, J., dissenting from denial of rehearing en banc). And

for good reason: “If legislators misused this power, the people

could respond, and respond swiftly.” Tiger Lily, LLC v. HUD, 5

F.4th 666, 674 (6th Cir. 2021) (Thapar, J., concurring).

not general but limited and divided. Not only must the

federal government properly invoke a constitutionally

enumerated source of authority to regulate . . . . It

must also act consistently with the Constitution’s

separation of powers.” Nat’l Fed’n of Indep. Bus. v.

Dep’t of Labor, 595 U.S. ____ (2022) (Gorsuch, J.,

concurring) (slip op., at 2) (citation omitted).

To protect liberty and guard against tyranny, “the

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

different aspects of the people’s sovereign power in

distinct entities.” Gundy, 139 S. Ct. at 2133 (Gorsuch,

J., dissenting). Subject to bicameralism and

presentment, Article I of the Constitution vests “[a]ll

legislative Powers herein granted” in Congress—not

the courts and not the Executive branch. U.S. Const.

Art. I, § 1; see McCulloch, 17 U.S. (4 Wheat.) at 412

(federal government’s “legislative powers are vested

in a Congress”); Gundy, 139 S. Ct. at 2123 (confirming

“assignment of power to Congress is a bar on its

further delegation”); Loving v. United States, 517 U.S.

748, 758 (1996) (“[T]he lawmaking function belongs to

Congress . . . and may not be conveyed to another

branch or entity.”). Article II tasks the Executive

Branch with faithfully executing the law. U.S. Const.

Art. II, § 3. Article III “vests the judicial power

exclusively in Article III courts, not administrative

agencies.” Michigan v. Envtl. Prot. Agency, 576 U.S.

743, 762 (2015) (Thomas, J., concurring).

Under the separation of powers, Congress

legislates, the Executive Branch enforces the law, and

the Judiciary says, once and for all, “what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803); see also Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 46 (1825) (“The difference between the

departments undoubtedly is, that the legislature

makes, the executive executes, and the judiciary

construes the law[.]”). “That is the equilibrium the

Constitution demands. And when one branch

impermissibly delegates its powers to another, that

balance is broken.” Tiger Lily, LLC v. HUD, 5 F.4th

666, 673 (6th Cir. 2021) (Thapar, J., concurring).

“Separation-of-powers principles are intended, in

part, to protect each branch of government from

incursion by the others. . . . The structural principles

secured by the separation of powers protect the

individual as well.” Bond v. United States, 564 U.S.

211, 222 (2011). To be sure, “[t]he separation of

powers and its role in protecting individual liberty

and the rule of law can sound pretty abstract. . . . After

all, the value of the separation of powers isn’t always

as obvious as the value of other sorts of constitutional

protections.” A Republic at 41, 45. But it bears

reminding that “[w]hen the separation of powers goes

ignored, those who suffer first may be the unpopular

and least among us[.] . . . But they are not likely to be

the last.” Id. at 46. For as James Madison famously

wrote, “[t]he accumulation of all powers, legislative,

executive, and judiciary, in the same hands . . . may

justly be pronounced the very definition of tyranny.”

The Federalist No. 47. And as Alexander Hamilton

wisely cautioned: “liberty can have nothing to fear

from the judiciary alone, but would have everything

to fear from its union with either of the other

departments.” The Federalist No. 78.

This separation “might seem inconvenient and

inefficient to those who wish to maximize

government’s coercive power.” See Texas v. Rettig, 993

F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from

denial of rehearing en banc). But “[t]o the Framers,

the separation of powers and checks and balances

were more than just theories. They were practical and

real protections for individual liberty in the new

Constitution.” Perez v. Mortg. Bankers Ass’n, 575 U.S.

92, 118 (2015) (Thomas, J., concurring in the

judgment). The Founders knew that “unchecked by

independent courts exercising the job of declaring the

law’s meaning, executives throughout history had

sought to exploit ambiguous laws as license for their

own prerogative.” Gutierrez-Brizuela v. Lynch, 834

F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J.,

concurring). “The Founders expected that the Federal

Government’s powers would remain separated—and

the people’s liberty secure—only if the branches could

check each other. The Judiciary’s checking power is its

authority to apply the law in cases or controversies

properly before it.” Baldwin v. United States, 140 S.

Ct. 690, 692 (2020) (Thomas, J., dissenting from

denial of certiorari).

Accordingly, “[w]hen a party properly brings a case

or controversy to an Article III court, that court is

called upon to exercise the ‘judicial Power of the

United States,’ . . . [which] requires a court to exercise

its [independent judgment] in interpreting and

expounding upon the laws.” Perez, 575 U.S. at 119

(Thomas, J., concurring in the judgment). Under the

separation of powers, as understood by the Founders

of our Constitution, “[t]he interpretation of the laws is

the proper and peculiar province of the courts. . . . It

therefore belongs to them to ascertain . . . the meaning

of any act proceeding from the legislative body.” The

Federalist No. 78. As Justice Story explained:

[I]t is not to be forgotten, that ours is a

government of laws, and not of men; and

that the Judicial Department has

imposed upon it, by the Constitution, the

solemn duty to interpret the laws, in the

last resort; and however disagreeable

that duty may be, in cases where its own

judgment shall differ from that of other

high functionaries, it is not at liberty to

surrender, or to waive it.

United States v. Dickson, 40 U.S. 141, 162 (1841).

Thus, as Justice Kennedy has observed, “[t]he

proper rules for interpreting statutes and determining

agency jurisdiction and substantive agency powers

should accord with constitutional separation-ofpowers principles and the function and province of the

Judiciary.” Pereira v. Sessions, 138 S. Ct. 2105, 2121

(2018) (Kennedy, J., concurring). At least, that is how

it is supposed to work.

B. Chevron Deference Threatens Individual

Liberty by Transferring Legislative and

Judicial Powers to the Executive.

By contrast, Chevron reflects judge-made law of

the same vintage that gave us the “Walkman,” VCRs,

Nintendo, and the Soviet Union’s boycott of the

Olympics.3 See also Gary Lawson & Stephen Kam,

Making Law Out of Nothing At All: The Origins of the

Chevron Doctrine, 65 Admin. L. Rev. 1 (2013) (tracing

origin and judicial expansion of Chevron deference).

“In 1984, a bare quorum of six Justices decided

Chevron.” Baldwin, 140 S. Ct. at 691 (Thomas, J.,

dissenting from denial of certiorari). Chevron requires

that “if a court finds a statute’s meaning ambiguous it

may not resolve the ambiguity using the traditional

tools of statutory interpretation that judges have

employed for centuries. Instead, the court must defer

to an executive agency’s decision about the law’s

meaning.”4 A Republic at 75. Accordingly, “Chevron

is in serious tension with the Constitution, the APA,

and over 100 years of judicial decisions.” Baldwin, 140

S. Ct. at 691 (Thomas, J., dissenting from the denial

of certiorari); see Kisor, 139 S. Ct. at 2446 n.114

(Gorsuch, J., concurring in the judgment); Cnty. of

Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1482

(2020) (Thomas, J., dissenting) (Chevron deference

“likely conflicts with the Vesting Clauses of the

Constitution”); see also Pereira, 138 S. Ct. at 2121

3 Professor Gus Hurwitz has thoughtfully observed that “in the

thirty or so years since Chevron became the law of the land, our

country’s governing institutions have grown increasingly

politicized: Perhaps Chevron itself . . . is in some measure

responsible for this sorry political state.” Gus Hurwitz, Chevron’s

Political Domain: W(h)ither Step Three?, 68 DePaul L. Rev. 615,

617 (2019).

4 Oddly, the government apparently still cannot articulate the

circumstances under which Chevron applies. See Tr. of Oral Arg.

at 71–72, Am. Hosp. Ass’n v. Becerra, No. 20-1114 (U.S. Nov. 30,

2021) (“I don’t think I can give you an answer to th[e] question”

of “[h]ow much ambiguity is enough”).

(Kennedy, J., concurring) (“Given the concerns raised

by some Members of this Court, it seems necessary

and appropriate to reconsider, in an appropriate case,

the premises that underlie Chevron and how courts

have implemented that decision.” (citations omitted)).

“In every case where an Article III court defers to

the Executive’s interpretation of a statute under

Chevron, our constitutional separation of powers is

surely disordered.” Valent v. Comm’r of Soc. Sec., 918

F.3d 516, 524 (6th Cir. 2019) (Kethledge, J.,

dissenting). “[W]henever a federal court declares a

statute ambiguous and then hands over to an

executive agency the power to say what the statute

means, the Executive exercises a power that the

Constitution has assigned to a different branch.” Id.

at 525 (Kethledge, J., dissenting). At the least, Article

III courts should not transfer core judicial powers to

federal bureaucrats lightly, “[f]or just as the

separation of powers safeguards individual liberty, so

too the consolidation of power in the Executive plainly

threatens it.” Id. (Kethledge, J., dissenting). But that

is what Chevron does. “Chevron compels judges to

abdicate the judicial power without constitutional

sanction.” Baldwin, 140 S. Ct. at 691 (Thomas, J.,

dissenting from denial of certiorari). This

extraconstitutional power transfer is far from

constitutionally harmless, as this case illustrates. See

also Pet. App. 56a (Greenberg, J., dissenting) (“I

respectfully dissent. ‘I would stop this business of

making up excuses for judges to abdicate their job of

interpreting the law[.]’” (quoting Kisor, 139 S. Ct. at

2426 (Gorsuch, J. concurring in the judgment)).

Chevron and its progeny depart from the original

public meaning of the Constitution by ceding core

judicial and legislative power to the executive. These

judge-made doctrines of recent vintage alter the

structure of our government enshrined in the

Constitution in a way that should require a

supermajority of the People’s affirmative consent. See

U.S. Const. Art. V. Experience has shown these

power-transfer doctrines are far from constitutionally

harmless and indeed ripe for abuse. Cf. Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485 (2021) (per curiam).

This Court should jettison these judge-made

executive-deference regimes to give back to the People

their right to make such fundamental values-based

choices about how they are governed and by whom.

The rule of law and the People deserve no less.

1. Chevron Stacks the Deck Against the

American People.

“[J]udges owe the people who come before them

nothing less than a fair contest, where every party has

an equal chance to persuade the court of its

interpretation of the law’s demands.” Kisor, 139 S. Ct.

at 2425 (Gorsuch, J., concurring in the judgment).

Chevron breaks Article III’s promise of an

independent, neutral judicial decisionmaker, as “[a]

court must . . . [defer to the agency] even when the

agency’s decision is influenced by politics, and even if

the agency later changes its position in response to a

new election or political pressure.” A Republic at 75.

2. Chevron Transfers Legislative Powers

to Unelected Executive Officials.

On the front end, Chevron transfers Congress’s

lawmaking powers to Executive agents on the

constitutionally dubious theory that Congress may

sub-delegate its legislative duties to another branch of

government.5 See Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150

(2016) (“In many ways, Chevron is nothing more than

a judicially orchestrated shift of power from Congress

to the Executive Branch.”). “In reality,” as Justice

Thomas has observed, “agencies ‘interpreting’

ambiguous statutes typically are not engaged in acts

of interpretation at all. Instead, as Chevron itself

acknowledged, they are engaged in the formulation of

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

concurring) (cleaned up).

More specifically, under Chevron, the theory

claims that when Congress drafts “ambiguous”

statutes, it implicitly transfers to Executive agents

the authority to make generally applicable (and

sometimes retroactive) rules with the force of law;

“and that authority is used not to find the best

meaning of the text, but to formulate legally binding

rules to fill in gaps based on policy judgments made

by the agency rather than Congress.” 6 Id. (Thomas,

5 “The principle that Congress cannot delegate away its vested

powers exists to protect liberty. Our Constitution, by careful

design, prescribes a process for making law, and within that

process there are many accountability checkpoints.” DOT v.

Ass’n of Am. R.R., 575 U.S. 43, 61 (2015) (Alito, J., concurring).

6 “Under our Constitution, the authority to make laws that

impose obligations on the American people is conferred on

Congress, whose Members are elected by the people. . . . Today,

however, most federal law is not made by Congress. It comes in

the form of rules issued by unelected administrators.” Biden v.

Missouri, 595 U.S. ____ (2022) (slip op., at 2) (Alito, J.,

J., concurring); see also Cuozzo Speed Techs., LLC v.

Lee, 579 U.S. 261, 286 (2016) (Thomas, J., concurring)

(noting “Chevron’s fiction that ambiguity in a

statutory term is best construed as an implicit

delegation of power to an administrative agency to

determine the bounds of the law”).

It is challenging to see how this is a sound theory

of statutory interpretation. Cf. Kavanaugh, 129 Harv.

L. Rev. at 2151 (“[W]hen the Executive Branch

chooses a weak (but defensible) interpretation of a

statute, and when the courts defer [under Chevron],

we have a situation where every relevant actor may

agree that the agency’s legal interpretation is not the

best, yet that interpretation carries the force of law.

Amazing.” (emphasis added)). Or why these Executive

agents should be allowed to set public policy. Cf. id. at

2150 (“Chevron encourages the Executive Branch

(whichever party controls it) to be extremely

aggressive in seeking to squeeze its policy goals into

ill-fitting statutory authorizations and restraints.”).

“Not only is Chevron’s purpose seemingly at odds with

the separation of legislative and executive functions,

its effect appears to be as well.” Gutierrez-Brizuela,

834 F.3d at 1154 (Gorsuch, J., concurring). Chevron’s

theoretical underpinnings (doctrinally complicated as

they are) are counterintuitive because “[i]n a

democracy, the power to make the law rests with

dissenting); see also City of Arlington v. FCC, 569 U.S. 290, 315

(2013) (Roberts, C.J., dissenting) (“[T]he citizen confronting

thousands of pages of regulations—promulgated by an agency

directed by Congress to regulate, say, ‘in the public interest’—

can perhaps be excused for thinking that it is the agency really

doing the legislating.”).

those chosen by the people.”7 King v. Burwell, 576 U.S.

473, 498 (2015); see U.S. Const. Art. I, § 1.

3. Chevron Transfers Judicial Authority

to Unelected Executive Officials.

On the back end, Chevron permits executive

agencies “to swallow huge amounts of core judicial”

power. Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch,

J., concurring). Chevron “forc[es] . . . [judges] to

abandon what they believe is the best reading of an

ambiguous statute in favor of an agency’s

construction. It thus wrests from Courts the ultimate

interpretative authority to say what the law is and

hands it over to the Executive.” Michigan v. EPA, 576

U.S. at 761 (Thomas, J., concurring) (cleaned up). Put

differently, “Chevron invests the power to decide the

meaning of the law, and to do so with legislative policy

goals in mind, in the very entity charged with

enforcing the law. Under its terms, an administrative

agency may set and revise policy (legislative), override

adverse judicial determinations (judicial), and

exercise

enforcement

discretion

(executive).”

Gutierrez-Brizuela, 834 F.3d at 1155 (Gorsuch, J.,

concurring).

Needless to say, “[w]hen it applies, Chevron is a

powerful weapon in an agency’s regulatory arsenal. .

“The modern administrative state illustrates what happens

when we ignore the Constitution: Congress passes problems to

the executive branch and then engages in finger-pointing for any

problems that might result. The bureaucracy triumphs—while

democracy suffers.” Rettig, 993 F.3d at 409 (Ho, J., dissenting

from denial of rehearing en banc).

. . It would be a bit much to describe the result as ‘the

very definition of tyranny,’ but the danger posed by

the growing power of the administrative state cannot

be dismissed.” City of Arlington v. FCC, 569 U.S. 290,

314–15 (2013) (Roberts, C.J., dissenting) (citation

omitted). “This apparent abdication by the Judiciary

and usurpation by the Executive is not a harmless

transfer of power. . . . Perhaps worst of

all, Chevron deference undermines the ability of the

Judiciary to perform its checking function on the other

branches.” Baldwin, 140 S. Ct. at 691–92 (Thomas, J.,

dissenting from denial of certiorari). While the

judiciary may have limited power to force Congress to

do its job, at the minimum, the Court may and should

jealously guard its own authority against

encroachment by the Executive.

4. Chevron and Its Constitutionally

Challenged Companion, Brand X, Are

At Odds with Due Process.

Further still, the Chevron doctrine harms

individual rights. “Transferring the job of saying what

the law is from the judiciary to the executive

unsurprisingly invites the very sort of due process

(fair notice) and equal protection concerns the framers

knew would arise if the political branches intruded on

judicial functions.” Gutierrez-Brizuela, 834 F.3d at

1152 (Gorsuch, J., concurring). “By transferring more

and more power from the legislature and judiciary to

the executive, we alter piece by piece the framers’

work and risk the underlying values it was designed

to serve.” A Republic at 73. Those values include “fair

notice; protection for the inherent value of every

individual person, including especially dissenting

voices; democratic accountability; and the rule of law

as administered by independent judges and juries.”

Id. Chevron plainly threatens all of them.

Chevron creates a regime where the People “are

charged with an awareness of Chevron; [then]

required to guess whether the statute will be declared

‘ambiguous’. . . ; and [then] required to guess (again)

whether an agency’s interpretation will be deemed

‘reasonable.’” Gutierrez-Brizuela, 834 F.3d at 1152

(Gorsuch, J., concurring). “Even if the people somehow

manage to make it through this far unscathed, they

must always remain alert to the possibility that the

agency will reverse its current view 180 degrees

anytime based merely on the shift of political winds

and still prevail. Neither, too, will agencies always

deign to announce their views in advance[.]” Id.

(Gorsuch, J., concurring). Importantly, in these

circumstances, “[t]he law hasn’t changed, only an

agency’s interpretation of it. And these days it

sometimes seems agencies change their statutory

interpretations almost as often as elections change

administrations.” Guedes v. BATFE, 140 S. Ct. 789,

790 (2020) (Gorsuch, J., statement concurring in

denial of certiorari) (emphasis added); see Lewis

Carroll, Through the Looking Glass (“‘When I use a

word,’ Humpty Dumpty said in rather a scornful tone,

‘it means just what I choose it to mean—neither more

nor less.’ ‘The question is,’ said Alice, ‘whether you can

make words mean so many different things.’”). Yet

even when an agency does an interpretive about-face

to radically alter public policy, Chevron requires

courts to “defer to such bureaucratic pirouetting[.]”

See Guedes v. BATFE, 140 S. Ct. at 790 (Gorsuch, J.,

statement concurring in denial of certiorari); see also

Richard J. Pierce, Jr., The Combination of Chevron

and Political Polarity Has Awful Effects, 70 Duke L.J.

Online 91, 103 (2021) (“The combination of Chevron

and political polarity makes it certain that

government policies in many important contexts will

change dramatically every four to eight years.”).

Making matters worse, under Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967 (2005), a wayward cousin and malignant

outgrowth of Chevron, “there are indeed some

occasions when a federal bureaucracy can effectively

overrule a judicial decision.” De Niz Robles v. Lynch,

803 F.3d 1165, 1167 (10th Cir. 2015) (Gorsuch, J.).

Brand X obligates courts to defer to “reasonable”

agency interpretations of ambiguous statutes

supposedly reflecting quasi-legislative agency policy

choices, “even when doing so means . . . [courts] must

overrule [their] . . . own preexisting and governing

statutory interpretation” precedent. Id. This means

businesses and individuals cannot rely on case law

interpreting statutes to plan their affairs.

Like Chevron, “Brand X appears to be inconsistent

with the Constitution[.]” Baldwin, 140 S. Ct. at 691

(Thomas, J., dissenting from denial of certiorari); see

also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp.,

333 U.S. 103, 113–14 (1948) (Jackson, J.) (“It has also

been the firm and unvarying practice of

Constitutional Courts to render no judgments not

binding and conclusive on the parties and none that

are subject to later review or alteration by

administrative action.”). And as Justice Thomas has

suggested, skepticism of Brand X’s constitutional

pedigree should “begin[] at its foundation—

Chevron deference.” Baldwin, 140 S. Ct. at 691.

(Thomas, J., dissenting from denial of certiorari).

As a leading scholar of statutory interpretation

explained: “Brand X is arguably the capstone of the

Court’s Chevron evolution: it works a wholesale

transfer of statutory interpretation authority from

federal courts to agencies.” Abbe R. Gluck, What 30

Years of Chevron Teach Us About the Rest of Statutory

Interpretation, 83 Fordham L. Rev. 607, 625 (2014).

That sums it up well. After all, “[i]f you accept

Chevron’s claim that legislative ambiguity represents

a license to executive agencies to render authoritative

judgments about what a statute means, Brand X’s

rule requiring courts to overturn their own contrary

judgments does seem to follow pretty naturally.”

Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J.,

concurring). As the capstone of the Chevron

experiment, “Brand X has taken this Court to the

precipice of administrative absolutism,” and “it

poignantly lays bare the flaws . . . [of] executivedeference jurisprudence.” Baldwin, 140 S. Ct. at 695.

The Chevron framework thus stands in serious

tension with the basic due process requirement of fair

notice. “A fundamental principle in our legal system

is that laws which regulate persons or entities must

give fair notice of conduct that is forbidden or

required.” FCC v. Fox TV Stations, Inc., 567 U.S. 239,

253 (2012). And “[r]etroactivity is not favored in the

law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

208 (1988). Deference doctrines like Chevron and

Brand X undermine this fundamental principle. See

Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J.,

concurring).8

II.

CHEVRON VIOLATES THE APA.

In addition to violating the Constitution in

multifarious ways, Chevron is contrary to the APA’s

plain language. As Justice Scalia observed: “There is

some question whether Chevron was faithful to the

text of the . . . [APA], which it did not even bother to

cite.” United States v. Mead Corp., 533 U.S. 218, 241

(2001) (Scalia, J., dissenting). For good reason. See

Kavanaugh, 129 Harv. L. Rev. at 2150 & n.161

(explaining that Chevron is “an atextual invention by

courts,” noting that, “if anything, Chevron seems to

flout the language of” the APA).

The APA tasks federal courts with independently

saying what the law is without placing a thumb on the

scale for the government: “To the extent necessary to

decision and when presented, the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the terms of

an agency action.” 5 U.S.C. § 706 (emphasis added).

Thus, as then-Judge Gorsuch observed:

8 “The retroactivity of Chevron deference adds another paradox.

An agency’s authoritative interpretation of a statute attracts

deference even in cases about transactions that occurred before

the issuance of the interpretation. But how would this rule work

in a criminal setting given the Ex Post Facto Clause?” Carter v.

Welles-Bowen Realty, Inc., 736 F.3d 722, 733 (6th Cir. 2013)

(Sutton, J., concurring).

Chevron’s inference about hidden

congressional intentions seems belied by

the intentions Congress has made

textually manifest. . . . [N]ot a word can

be found here about delegating

legislative authority to agencies. On this

record, how can anyone fairly say that

Congress ‘intended’ for courts to abdicate

their statutory duty under § 706 and

instead ‘intended’ to delegate away its

legislative power to executive agencies?

The fact is, Chevron’s claim about

legislative intentions is no more than a

fiction—and one that requires a pretty

hefty suspension of disbelief at that.

Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J.,

concurring); see also Baldwin, 140 S. Ct. at 692

(Thomas, J., dissenting from denial of certiorari)

(“Even if Chevron raised no constitutional concerns,

these statutory arguments give rise to serious doubts

about Chevron’s legitimacy.”).9

CONCLUSION

This Court should grant the Petition and squarely

overrule Chevron.

9 As Professor Aditya Bamzai explained: “[T]he proposition that

Chevron has a basis in traditional interpretive methodology, the

views of the Framers of the . . . Constitution, or section 706 of the

[APA] should be abandoned—that proposition is a fiction.”

Aditya Bamzai, The Origins of Judicial Deference to Executive

Interpretation, 126 Yale L.J. 908, 1001 (2017).

Respectfully submitted,