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

No. 21-972

IN THE

Supreme Court of the United States

____________________________________

THOMAS H. BUFFINGTON,

Petitioner,

v.

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 INDIANA, ARIZONA, AND

THIRTEEN OTHER STATES AS AMICI

CURIAE IN SUPPORT OF PETITIONER

____________________________________

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy

BRUNN W. ROYSDEN III

Solicitor General

DREW C. ENSIGN

Deputy Solicitor General

Office of the Attorney

General

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

beau.roysden@az.ag.gov

Counsel for Amici States

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

JULIA C. PAYNE

MELINDA R. HOLMES

Deputy Attorneys General

Office of the Attorney

General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

tom.fisher@atg.in.gov

*Counsel of Record

Additional counsel with

signature block

i

QUESTIONS PRESENTED

1. Whether the Chevron doctrine permits courts

to defer to VA’s construction of a statute designed to benefit veterans, without first considering the pro-veteran canon of construction.

2. Whether Chevron should be overruled.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................................... i

TABLE OF AUTHORITIES ................................... iv

INTEREST OF THE AMICI STATES .................... 1

SUMMARY OF THE ARGUMENT ......................... 3

REASONS FOR GRANTING THE PETITION ...... 4

I.

The Federal Circuit’s Refusal to Apply the

Pro-Veteran Canon at Chevron Step One

Warrants Review ............................................... 4

II. The Court Should Take This Case Either

to Explain How Chevron Agrees with

the Constitution and the APA or to

Overrule It ......................................................... 7

A. Chevron exists merely to vindicate

Congressional delegation of

policymaking authority, not to

surrender all power to administrative

agencies .......................................................... 8

B. Under the Constitution and the APA,

courts must interpret statutes de novo

to determine the extent of policy

delegation..................................................... 13

iii

1. Major-questions and non-delegation

doctrines affect the interplay of de

novo review and Chevron deference,

but courts need guidance in that

regard ....................................................... 14

2. The APA also requires de novo review

of statutes authorizing agency action,

but lower courts need guidance on

that score as well.................................... 23

III. Alternatives to Broad Agency Deference

Are Workable ................................................... 25

CONCLUSION ....................................................... 27

iv

TABLE OF AUTHORITIES

CASES

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) ..................................... 10, 16

Addison v. Holly Hill Fruit Prods., Inc.,

322 U.S. 607 (1944) ........................................... 16

Alabama Ass’n of Realtors v. Dep’t of Health

& Human Servs.,

141 S. Ct. 2485 (2021) (per curiam) ................. 16

Am. Hosp. Ass’n v. Becerra,

No. 20-1114 (argued Nov. 30, 2021) ................... 2

Am. Lung Ass’n v. EPA,

985 F.3d 914 (D.C. Cir. 2021) ........................... 21

Aposhian v. Wilkinson,

958 F.3d 969 (10th Cir. 2020), reh’g en

banc vacated, 989 F.3d 890 (10th Cir.

2021) ............................................................ 20, 25

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018)............................. 21

Berndsen v. N.D. Univ. Sys.,

7 F.4th 782 (8th Cir. 2021) ............................... 21

Bond v. United States,

572 U.S. 844 (2014) ............................................. 6

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ....................................... 8, 10

v

CASES [CONT’D]

Brown v. Gardner,

513 U.S. 115 (1994) ............................................. 5

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

Council, Inc.,

467 U.S. 837 (1984) ..................................... 1, 2, 8

City of Arlington v. FCC,

569 U.S. 290 (2013) .................................... passim

Cnty. of Yakima v. Confederated Tribes &

Bands of Yakima Indian Nation,

502 U.S. 251 (1992) ............................................. 5

Competitive Enter. Inst. v. U.S. Dep’t of

Transp.,

863 F.3d 911 (D.C. Cir. 2017) ........................... 21

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

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

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................... 11, 12, 20

Fed. Mar. Comm’n v. Seatrain Lines, Inc.,

411 U.S. 726 (1973) ........................................... 17

Field v. Clark,

143 U.S. 649 (1892) ........................................... 18

Fishgold v. Sullivan Drydock & Repair

Corp.,

328 U.S. 275 (1946) ............................................. 4

vi

CASES [CONT’D]

Free Enter. Fund v. Pub. Co. Acct. Oversight

Bd.,

561 U.S. 477 (2010) ..................................... 14, 15

Gonzales v. Oregon,

546 U.S. 243 (2006) ........................................... 11

Gregory v. Ashcroft,

501 U.S. 452 (1991) ......................................... 6, 7

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016)......................... 22

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ........................................... 18

J.W. Hampton v. United States,

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

King v. Burwell,

576 U.S. 473 (2015) ................................. 2, 12, 19

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ....................................... 24

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ......................................... 8, 9

Loving v. United States,

517 U.S. 748 (1996) ........................................... 18

Michigan v. EPA,

576 U.S. 743 (2015) ..................................... 17, 22

vii

CASES [CONT’D]

Montana v. Blackfeet Tribe,

471 U.S. 759 (1985) ............................................. 5

Negusie v. Holder,

555 U.S. 511 (2009) ........................................... 13

NFIB v. Dep’t of Lab.,

142 S. Ct. 661 (2022)................................... 16, 19

Owasso Indep. Sch. Dist. v. Falvo,

534 U.S. 426 (2002) ............................................. 6

Pereira v. Sessions,

138 S. Ct. 2105 (2018)....................................... 22

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ............................................. 23

Saguaro Healing LLC v. State,

470 P.3d 636 (Ariz. 2020) ........................... 25, 26

Scialabba v. Cuellar de Osorio,

573 U.S. 41 (2014) ............................................. 12

Silver v. Pueblo Del Sol Water Co.,

423 P.3d 348 (Ariz. 2018) ................................. 26

Soc. Sec. Bd. v. Nierotko,

327 U.S. 358 (1946) ........................................... 16

United States v. Mead Corp.,

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

viii

CASES [CONT’D]

United States v. Santos,

553 U.S. 507 (2008) ............................................. 5

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ..................................... 16, 19

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019)................. 20, 21, 24

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................................... 18

Youngtown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ........................................... 14

CONSTITUTIONAL PROVISIONS

U.S. Const., art. I, § 1............................................. 18

STATUTES

5 U.S.C. § 706 ................................................... 23, 24

2018 Ariz. Legis. Serv. ch. 180 .............................. 25

Ariz. Rev. Stat. Ann. § 12-910 ............................... 25

OTHER AUTHORITIES

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) ................................................................. 17

ix

OTHER AUTHORITIES [CONT’D]

Cass R. Sunstein, Interpreting Statutes in

the Regulatory State, 103 Harv. L. Rev.

405 (1989) .......................................................... 14

Daniel Ortner, The End of Deference: How

States Are Leading a (Sometimes Quiet)

Revolution Against Administrative

Deference Doctrines, at 4 (March 11,

2020),

https://ssrn.com/abstract=3552321 ............ 26, 27

Ernest A. Young, Executive Preemption, 102

Nw. U. L. Rev. 869 (2008)................................. 14

Henry P. Monaghan, Marbury and the

Administrative State, 83 Colum. L. Rev.

1 (1983) .............................................................. 24

John F. Manning, The Nondelegation

Doctrine as a Canon of Avoidance, 2000

Sup. Ct. Rev. 223 (2000) ................................... 17

Jonathan H. Adler, Restoring Chevron’s

Domain, 81 Mo. L. Rev. 983 (2016) .............. 9, 23

Philip Hamburger, Is Administrative Law

Unlawful? (2014) ......................................... 18, 19

Stephen Breyer, Judicial Review of

Questions of Law and Policy, 38 Admin.

L. Rev. 363 (1986) ....................................... 19, 20

Supreme Court Rule 37.2 ........................................ 1

x

OTHER AUTHORITIES [CONT’D]

The Federalist No. 10 (James Madison) (C.

Rossiter ed. 1961).............................................. 14

The Federalist No. 80 (Alexander Hamilton) (C. Rossiter ed. 1961) ................................ 14

The Federalist No. 51 (James Madison) (C.

Rossiter ed. 1961).............................................. 15

Thomas W. Merrill & Kristin E. Hickman,

Chevron’s Domain, 89 Geo. L.J. 833

(2001) ................................................................... 9

Thomas W. Merrill, The Mead Doctrine:

Rules and Standards, Meta-Rules and

Meta-Standards, 54 Admin. L. Rev. 807

(2002) ................................................................. 10

1

INTEREST OF THE AMICI STATES*

The States of Indiana, Arizona, Alabama, Alaska,

Arkansas, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas,

Utah, and Virginia respectfully submit this brief as

amici curiae in support of the petitioner.

Amici States have significant interests in preserving the federal separation of powers and preventing

overreach by federal agencies. Under the Constitution

and the Administrative Procedure Act, courts have

the responsibility to determine the existence and extent of administrative agencies’ policymaking authority. As part of their efforts to police the boundaries of

federalism, States frequently urge courts to adhere to

the federalism canon when interpreting federal statutes. Accordingly, they have a particular interest in

ensuring that lower courts adhere to the Court’s precedents requiring use of all available canons of statutory construction before engaging in deference.

Where, as in the decision below, courts fail to discharge this responsibility properly and grant an

agency unwarranted deference, agency authority expands at the expense of State authority and individual liberty.

This case should provide the next vehicle address

the well-known deficiencies with Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837



Pursuant to Supreme Court Rule 37.2(a), counsel of record for

all parties received notice of Amici States’ intention to file this

brief at least ten days prior to the due date of this brief.

2

(1984). The Court has in recent years taken cases to

address various aspects of the agency deference problem, see, e.g., King v. Burwell, 576 U.S. 473 (2015)

(concluding that no deference was warranted to ACA

tax credit question of “deep economic and political significance that is central to th[e] statutory scheme”);

City of Arlington v. FCC, 569 U.S. 290 (2013) (concluding that courts defer to agency’s interpretation of

an ambiguous statute concerning the scope of its jurisdiction); United States v. Mead Corp., 533 U.S. 218

(2001) (concluding that Chevron does not apply to certain agency decisions), and even this Term has an opportunity to direct lower courts in the application of

Chevron. See Am. Hosp. Ass’n v. Becerra, No. 20-1114

(argued Nov. 30, 2021).

The decision below underscores the fundamental

problems underlying Chevron’s application and provides a straightforward opportunity to delineate the

role of courts when interpreting statutes governing

federal agencies. With a straightforward statute concerning veteran-disability benefits and an administrative rule creating a one-year forfeiture rule at issue, this case presents an excellent vehicle for the

Court either to affirm the only lawful approach to

Chevron—de novo statutory interpretation as to the

range of policymaking authority Congress has delegated using all available canons—or overrule Chevron

altogether.

The Court should grant the petition and reverse.

3

SUMMARY OF THE ARGUMENT

The Court has an opportunity to resolve for the

lower courts the proper application of Chevron or else

be done with the doctrine altogether as a failed

experiment.

The Federal Circuit’s decision is one among many

lower-court decisions violating the Court’s directive

that courts must apply all “tools of statutory construction” while performing Chevron step one, including

canons of construction like the pro-veteran canon.

Lower courts’ failure to apply Chevron faithfully prejudices not only veterans—whose service to our nation

is deserving of faithful adherence to the pro-veteran

canon—but also countless others, including the

States. When courts fail to apply the relevant substantive canons of construction, such as the federalism canon, they aggrandize federal administrative

power beyond any congressional delegation.

More broadly, questions over the meaning and

vitality of Chevron have been percolating through

cases and commentary for many years. The tensions

between agency deference and the institutional role of

courts under both the Constitution and the

Administrative Procedure Act are undeniable. The

relative simplicity of the veteran-benefits issue in this

case affords an excellent opportunity to resolve that

tension—either by offering a convincing explanation

of Chevron’s method and validity, or by overruling it.

4

REASONS FOR GRANTING THE PETITION

I. The Federal Circuit’s Refusal to Apply the

Pro-Veteran Canon at Chevron Step One

Warrants Review

With respect to the first question presented, the

petition powerfully explains how the decision below—

and the Federal Circuit’s jurisprudence more generally—conflicts with Chevron by refusing to apply the

substantive pro-veteran canon at step one of the analysis. See Pet. 11–25. In addition, the petitioner is correct that, with precedents so hopelessly muddled, the

Federal Circuit is unlikely to resolve its own conflicts.

Only this Court can do so (and should). Amici States

underscore two grounds why review is warranted on

that question.

First, the Federal Circuit’s approach fundamentally disrespects veterans, the services they have rendered to our nation, and the substantial sacrifices

they have made. The canon appropriately embraces

gratitude to veterans in the form of “liberally construed [statutory provisions] for the benefit of those

who left private life to serve their country.” Fishgold

v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285

(1946). Shifting such special solicitude of veterans to

the stage of the analysis where the court is already

deferring to agency interpretation—which the decision below exemplifies—improperly diminishes the

respect that our veterans have amply earned.

5

That would be bad enough in any context, but it is

particularly pernicious where, as here, the agency has

a strong pecuniary interest in resolving ambiguity

against veterans. That danger is hardly theoretical.

As the petition observes, the Department’s history of

torturing even unambiguous statutory text against

veterans is rightfully infamous. See Pet. 22–23; see

also, e.g., Brown v. Gardner, 513 U.S. 115, 122 (1994)

(holding that a VA regulation that “flies against the

plain language of the statutory text exempts courts

from any obligation to defer to it”).

Second, judicial failure to apply interpretive canons at Chevron step one enables federal agencies to

aggrandize power. Substantive canons safeguard important substantive values—here, the interests of veterans, in other circumstances the interests of Tribes,

Cnty. of Yakima v. Confederated Tribes & Bands of

Yakima Indian Nation, 502 U.S. 251, 269 (1992)

(“[S]tatutes are to be construed liberally in favor of

the Indians, with ambiguous provisions interpreted to

their benefit.” (quoting Montana v. Blackfeet Tribe,

471 U.S. 759, 766(1985))), and criminal defendants,

United States v. Santos, 553 U.S. 507, 514 (2008)

(“The rule of lenity requires ambiguous criminal laws

to be interpreted in favor of the defendants subjected

to them.”). Actuating those values via interpretive

canons inherently restrains federal agencies; failing

to do so expands agency power. It is a zero-sum game.

Of particular interest to the Amici States, lower

courts’ infidelity to Chevron footnote 9 prejudices the

critical federalism canon: “[I]t is incumbent upon the

6

federal courts to be certain of Congress’ intent before

finding that federal law overrides the usual constitutional balance of federal and state powers.” Bond v.

United States, 572 U.S. 844, 858 (2014) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (cleaned up));

accord Owasso Indep. Sch. Dist. v. Falvo, 534 U.S.

426, 432 (2002) (“We would hesitate before interpreting the statute to effect such a substantial change in

the balance of federalism unless that is the manifest

purpose of the legislation.”). The federalism canon

protects State sovereignty—particularly from infringements not intended by Congress but exploited

by opportunistic bureaucrats.

The Gregory case powerfully illustrates the importance of applying the federalism canon at Chevron

step one. There, rather than merely defer to the

EEOC’s interpretation of the Age Discrimination in

Employment Act, the Court applied the federalism

canon to hold that the ambiguous exception for “appointees ‘on a policymaking level’” applied to state

judges. 501 U.S. at 467. The Court observed that “[w]e

will not read the ADEA to cover state judges unless

Congress has made it clear that judges are included.”

Id.

That is exactly how Chevron footnote 9 is supposed

to operate. But under the Federal Circuit’s approach,

Gregory almost certainly would have come out differently, as Justice Blackmun’s Gregory dissent makes

clear. Without even citing footnote 9, Justice

Blackmun explained that Chevron “compel[led] [him]

7

to accept the EEOC’s contrary reading of the exclusion if it were a ‘permissible’ interpretation of this ambiguous term.” Id. at 493 (Blackmun, J., dissenting).

He therefore “would [have] defer[red] to the EEOC's

reasonable interpretation of this [ambiguous] term.”

Id. at 494.

The Federal Circuit’s reversion to the Blackmun

model shows why the first question presented is exceptionally important to anyone protected by substantive canons of construction.

II. The Court Should Take This Case Either to

Explain How Chevron Agrees with the

Constitution and the APA or to Overrule It

With respect to the second issue presented,

questions over the meaning and vitality of Chevron

have been percolating through cases and commentary

for years. The tensions between agency deference and

the institutional role of courts under the Constitution

and the Administrative Procedure Act are

undeniable. The relative simplicity of the veteranbenefits issue in this case affords an excellent

opportunity to resolve that tension—either by

offering a convincing explanation of Chevron’s method

and validity, or by overruling it.

8

A. Chevron exists merely to vindicate Congressional delegation of policymaking authority, not to surrender all power to administrative agencies

Chevron did not suddenly renounce the Judiciary’s

obligation to ensure Executive Branch agencies (and

independent agencies) stay within their delegated,

statutory authority. Rather, the Court has always understood Chevron to effectuate Congress’s policy delegations. It is premised on implementing the precise

scope of authority Congress has delegated. Courts

first ask “whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is

clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–

43 (1984). Courts defer only to agency actions falling

within the scope of delegated authority. Id. at 844.

1. Chevron makes clear that its two-step approach vindicates—not vitiates—the judiciary’s duty

to discern for itself the meaning of statutes. As the

decision acknowledges, the “judiciary is the final authority on issues of statutory construction and must

reject administrative constructions which are contrary to clear congressional intent.” Id. at 843 n.9. Because agencies are creatures of Congress, “[i]t is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208 (1988); see also La.

9

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)

(“[A]n agency literally has no power to act . . . unless

and until Congress confers power upon it.”).

Chevron is therefore rooted in the judiciary’s obligation to discern the scope of Congress’s delegation

of regulatory authority. See, e.g., Thomas W. Merrill

& Kristin E. Hickman, Chevron’s Domain, 89 Geo.

L.J. 833, 836 (2001) (“Chevron should be regarded as

a legislatively mandated deference doctrine.”); Jonathan H. Adler, Restoring Chevron’s Domain, 81 Mo.

L. Rev. 983, 990 (2016) (“[T]he Court has made clear

that Chevron is, in fact, premised on a delegation of

interpretive and policymaking authority from Congress to implementing agencies.”). Other potential

rationales for Chevron—such as those grounded in

considerations of “[e]xpertise, accountability, and

uniformity”—are all merely “policy reasons for deferring to agencies over judges” and “do not provide a

legal basis for Chevron.” Adler, supra, at 989.

2. The Court’s applications of Chevron have repeatedly justified it as a tool for implementing congressional intent. In Mead, for example, the Court explained Chevron as authority for Congress’s implicit

delegations of authority: Even where Congress has

not “expressly delegated authority or responsibility to

implement a particular provision or fill a particular

gap,” it may—or may not—“be apparent from the

agency’s generally conferred authority and other statutory circumstances that Congress would expect the

agency to be able to speak with the force of law when

it addresses ambiguity in the statute or fills a space

10

in the enacted law.” United States v. Mead Corp., 533

U.S. 218, 229 (2001); see also id. at 231–32 (concluding that “the terms of the congressional delegation

give no indication that Congress meant to delegate

authority to [the U.S. Customs Service] to issue classification rulings with the force of law”).

Mead clarified that courts should not infer a congressional intent to delegate—and thus should not defer to agency decisions—with every statutory ambiguity or “gap.” Instead, the text must provide some actual “indication of a . . . congressional intent” to delegate. Id. at 227. Only “[w]hen circumstances implying

such an expectation exist” should a reviewing court

“accept the agency’s position,” so long as “Congress

has not previously spoken to the point at issue and

the agency’s interpretation is reasonable.” Id. at 229.

Mead thus “eliminates any doubt that Chevron deference is grounded in congressional intent.” Thomas W.

Merrill, The Mead Doctrine: Rules and Standards,

Meta-Rules and Meta-Standards, 54 Admin. L. Rev.

807, 812 (2002).

The Court’s other Chevron cases confirm as much.

In Adams Fruit Co. v. Barrett, for example, the Court

observed that “[a] precondition to deference under

Chevron is a congressional delegation of administrative authority.” 494 U.S. 638, 649 (1990) (citing

Bowen, 488 U.S. at 208). The Court reiterated this

point in Gonzales v. Oregon, observing that “Chevron

deference . . . is not accorded merely because the statute is ambiguous and an administrative official is in-

11

volved”—rather, the regulation advancing the interpretation “must be promulgated pursuant to authority Congress has delegated to the official.” 546 U.S.

243, 258 (2006) (citing Mead, 533 U.S. at 226–27).

And in FDA v. Brown & Williamson Tobacco

Corp., the Court again explained that “[d]eference under Chevron . . . is premised on the theory that a statute’s ambiguity constitutes an implicit delegation

from Congress to the agency to fill in the statutory

gaps.” 529 U.S. 120, 159 (2000). For this reason, the

Court explained, an agency’s claim to authority will

pass the first step of Chevron only where the whole

statutory context reasonably justifies inference of delegation. Id. at 132–33 (explaining that a “reviewing

court . . . must be guided to a degree by common sense

as to the manner in which Congress is likely to delegate a policy decision of such economic and political

magnitude to an administrative agency”).

Even the Court’s famously pro-agency decision in

City of Arlington v. FCC, 569 U.S. 290 (2013), confirms this understanding of Chevron. Every opinion in

City of Arlington recognized that Chevron’s legitimacy

stems from the delegation of authority by Congress.

Justice Scalia observed that “Chevron is rooted in a

background presumption of congressional intent,”

which means that the “underlying question” is always

“Does the statute give the agency authority to regulate . . . or not?” 569 U.S. at 296, 299 (majority op.).

Similarly, Justice Breyer noted that the “question

whether Congress has delegated to an agency the authority to provide an interpretation that carries the

12

force of law is for the judge to answer independently.”

Id. at 310 (Breyer, J., concurring in part and concurring in the judgment) (emphasis added). And the

Chief Justice likewise explained that “Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretive authority,” id. at 321

(Roberts, C.J., dissenting)—courts thus only “give

binding deference to permissible agency interpretations of statutory ambiguities because Congress has

delegated to the agency the authority to interpret

those ambiguities ‘with the force of law,’” id. at 317

(quoting Mead, 533 U.S. at 229).

The Court’s opinions following City of Arlington

reaffirm that Chevron is rooted in delegation. For example, in Scialabba v. Cuellar de Osorio, the Chief

Justice, now joined by Justice Scalia, observed that

while “[c]ourts defer to an agency’s reasonable construction of an ambiguous statute because we presume that Congress intended to assign responsibility

to resolve the ambiguity to the agency,” no such assumption can be made where the ambiguity was created by Congress enacting conflicting provisions. 573

U.S. 41, 76 (2014) (Roberts, C.J., concurring in the

judgment). Similarly, King v. Burwell explicitly observed that Chevron “is premised on the theory that a

statute’s ambiguity constitutes an implicit delegation

from Congress to the agency to fill in the statutory

gaps.” 576 U.S. 473, 485 (2015) (quoting Brown & Williamson, 529 U.S. at 159).

13

In short, the Court’s precedents conceptualize

Chevron in a way that preserves congressional authority, which sets the stage for a proper understanding of the judicial role in reviewing agency actions.

B. Under the Constitution and the APA,

courts must interpret statutes de novo to

determine the extent of policy delegation

Predicated as it is on congressional authorization,

the Court’s agency deference scheme works only if

courts “tak[e] seriously, and apply[] rigorously, in all

cases, statutory limits on agencies’ authority.” City of

Arlington, 569 U.S. at 307; see also Negusie v. Holder,

555 U.S. 511, 531 (2009) (Stevens, J., concurring in

part and dissenting in part) (“The fact that Congress

has left a gap for the agency to fill means that courts

should defer to the agency’s reasonable gap-filling decisions, not that courts should cease to mark the

bounds of delegated agency choice.” (emphasis

added)). The decision below, however, used statutory

silence as an excuse to eschew canons of construction

and instead embrace agency deference. Unfortunately, such reflexive agency deference permeates administrative litigation, which is why the Court should

either return to a judicially robust version of Chevron

or overturn it altogether.

14

1. Major-questions and non-delegation

doctrines affect the interplay of de novo

review and Chevron deference, but

courts need guidance in that regard

Our Constitution was adopted both “to enable the

people to govern themselves, through their elected

leaders,” Free Enter. Fund v. Pub. Co. Acct. Oversight

Bd., 561 U.S. 477, 499 (2010), and to “diffuse[] power

the better to secure liberty,” Youngtown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring). The Framers were acutely aware of the

tendency of individuals—and institutions—to favor

their own interests. See The Federalist No. 10 (James

Madison) (C. Rossiter ed. 1961) (“No man is allowed

to be a judge in his own cause; because his interest

would certainly bias his judgment, and, not improbably, corrupt his integrity.”); The Federalist No. 80 (Alexander Hamilton) (C. Rossiter ed. 1961) (“No man

ought certainly to be a judge in his own cause, or in

any cause in respect to which he has the least interest

or bias.”).

A robust independent federal judiciary is a critical

means of thwarting excessive self-interest and of

maintaining self-government. Accordingly, the principle that “foxes should not guard henhouses” is fundamental to judicial review of agency action. See Ernest

A. Young, Executive Preemption, 102 Nw. U. L. Rev.

869, 889 (2008); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405,

446 (1989) (“The basic case for judicial review depends

15

on the proposition that foxes should not guard henhouses.”). That point needs reinforcement from this

Court, consonant with its recent pronouncements on

other aspects of separation-of-powers doctrine, including the major-questions and non-delegation doctrines.

1. The Constitution’s separation of governmental

powers among the Branches is designed to redirect—

and thereby mitigate the deleterious consequences

of—official self-interestedness. See The Federalist No.

51 (James Madison) (C. Rossiter ed. 1961). Separation-of-powers principles guide interpretation of statutes delegating authority to federal agencies. Yet, as

the Court has repeatedly observed, the expansive

reach of today’s federal administrative state, “which

now wields vast power and touches almost every aspect of daily life,” stands in tension with the Constitution’s separation of powers. Free Enter. Fund, 561

U.S. at 499. Unelected agency personnel—often unaccountable even to the President—now exert enormous

policymaking authority, including the powers to set

rules, police compliance, and adjudicate violations.

See City of Arlington, 569 U.S. at 313 (Roberts, C.J.,

dissenting). “The accumulation of these powers in the

same hands is not an occasional or isolated exception

to the constitutional plan; it is a central feature of

modern American government.” Id.

With increasing frequency, the Court has tempered expansive agency powers by insisting on congressional control, particularly for major policy ques-

16

tions. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct.

2485, 2489 (2021) (per curiam) (internal quotation

marks omitted) (quoting Util. Air Regul. Grp. v. EPA,

573 U.S. 302, 324 (2014)). This Term alone, the Court

has used the major-questions doctrine to rebuff power

grabs by CDC and OSHA absent clear congressional

directives. See id. (rejecting an emergency CDC rule

declaring a moratorium on housing evictions pending

the Covid-19 pandemic); NFIB v. Dep’t of Lab., 142 S.

Ct. 661, 665 (2022) (staying OSHA’s Emergency Temporary Standard on the ground that the statute does

not “plainly authorize[] the Secretary’s mandate”).

Along with traditional canons of statutory interpretation, a robust major-questions doctrine enables

the judiciary to exercise responsibility for interpreting statutory delegations of power. It reflects “the obligation of the Judiciary not only to confine itself to

its proper role, but to ensure that the other branches

do so as well.” City of Arlington, 569 U.S. at 327 (Roberts, C.J., dissenting). Thus, the “determination of

the extent of authority given to a delegated agency by

Congress is not left for the decision of him in whom

authority is vested.” Addison v. Holly Hill Fruit

Prods., Inc., 322 U.S. 607, 616 (1944). To “finally decide the limits of [an agency’s] statutory power” is not

the job of the agency but is instead “a judicial function.” Soc. Sec. Bd. v. Nierotko, 327 U.S. 358, 369

(1946); see also Adams Fruit Co., 494 U.S. at 650

17

(“[I]t is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’” (quoting Fed. Mar. Comm’n v. Seatrain Lines,

Inc., 411 U.S. 726, 745 (1973))).

Permitting agencies to discern the scope of their

own authority risks assumption of excessive, unauthorized power. See Michigan v. EPA, 576 U.S. 743,

761 (2015) (Thomas, J., concurring) (noting that vesting agencies with this authority “wrests from Courts

the ultimate interpretive authority to say what the

law is and hands it over to the Executive. . . . in tension with Article III’s Vesting Clause” (internal quotation marks and citations omitted)); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv.

L. Rev. 2118, 2150 (2016) (describing such deference

as “nothing more than a judicially orchestrated shift

of power from Congress to the Executive Branch”);

John F. Manning, The Nondelegation Doctrine as a

Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 276

(2000) (“If Congress has addressed a subject, but has

done so in a limited way, this fact may itself suggest

that Congress has gone as far as it could, as far as

the enacting coalition wished to, on the subject in

question.”).

As Justice Scalia explained, courts avoid the “foxin-the-henhouse syndrome . . . by taking seriously,

and applying rigorously, in all cases, statutory limits

on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and

where Congress has established an ambiguous line,

18

the agency can go no further than the ambiguity will

fairly allow.” City of Arlington, 569 U.S. at 307.

2. The need to maintain separation of powers—

and its corollary bar against agency self-definition—

has also undergirded non-delegation doctrine, i.e., the

idea that Congress is restricted in how it delegates

power to agencies.

The Court “repeatedly ha[s] said that when Congress confers decisionmaking authority upon agencies

Congress must ‘lay down by legislative act an intelligible 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 v. United States, 276 U.S. 394, 409

(1928)). The corollary to this “intelligible principle”

rule is the non-delegation doctrine, which “has developed to prevent Congress from forsaking its duties”

and is grounded on the rule “that the lawmaking function belongs to Congress, U.S. Const., Art. I, § 1, and

may not be conveyed to another branch or entity.”

Loving v. United States, 517 U.S. 748, 758 (1996) (citing Field v. Clark, 143 U.S. 649, 692 (1892)); see also

Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607, 685 (1980) (Rehnquist, J., concurring in

the judgment) (noting this rule ensures “important

choices of social policy are made by Congress, the

branch of our Government most responsive to the popular will”).

Non-delegation doctrine stands among the “many

accountability checkpoints” in the Constitution,

19

which “by careful design, prescribes a process for

making law.” Dep’t of Transp. v. Ass’n of Am. R.R., 575

U.S. 43, 61 (2015) (Alito, J., concurring); cf. Philip

Hamburger, Is Administrative Law Unlawful? 386

(2014) (contending that by “emphasizing that all legislative powers granted to the United States shall be

in Congress,” the Constitution “thereby expressly

bars the subdelegation of such powers”).

3. The major-questions and non-delegation

doctrines are systematically related to each other

and, ultimately, to the operation of Chevron. As

Justice Gorsuch recently emphasized, the doctrines

“[b]oth are designed to protect the separation of

powers and ensure that any new laws governing the

lives of Americans are subject to the robust

democratic processes the Constitution demands.”

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 142 S. Ct.

661, 668–69 (2022) (Gorsuch, J., concurring).

In turn, King v. Burwell illustrates how the Court

has refused to accord deference when statutory

ambiguities concern major questions—precisely over

doubts that deference would effectuate congressional

intent. There, because Affordable Care Act tax credits

for insurance sold through a federal exchange was

both “of deep ‘economic and political significance’” and

“central to this statutory scheme,” ambiguity did not

imply delegation. See King v. Burwell, 576 U.S. at

486, 490. Rather, “had Congress wished to assign that

question to an agency, it surely would have done so

expressly.” Id. at 486 (quoting Util. Air, 573 U.S. at

324); see also Stephen Breyer, Judicial Review of

20

Questions of Law and Policy, 38 Admin. L. Rev. 363,

370 (1986) (“Congress is more likely to have focused

upon, and answered, major questions,” such as

whether to confer jurisdiction to an agency, while

“leaving interstitial matters,” such as how delegated

authority is exercised, for resolution by the agency

during the “daily administration” of the statute);

Brown & Williamson, 529 U.S. at 159 (citing Breyer,

supra, at 370).

Put another way, when Congress delegates

significant authority using a clear voice and

intelligible guiding principles, agency deference is

limited to a legitimate range of policy alternatives.

When it does not, courts are left to wonder whether

statutory ambiguity amounts to intentional—albeit

unguided—delegation or merely artless drafting. In

that circumstance, Chevron deference illegitimately

vitiates both the legislative and the judicial roles.

4. Unfortunately, lower courts frequently use

Chevron as a substitute for statutory analysis, ignoring the critical judicial role in maintaining boundaries

between executive and legislative powers. For example, in the decision below, the Federal Circuit avoided

Chevron step-one analysis altogether in the face of a

supposedly silent statute. App. 13a–15a; see also id.

at 26a–28a (O’Malley, J., dissenting).

Other judges have also remarked on the phenomenon. See, e.g., Aposhian v. Wilkinson, 958 F.3d 969

(10th Cir. 2020), reh’g en banc vacated, 989 F.3d 890,

21

895 (10th Cir. 2021) (Tymkovich, J., dissenting) (stating that the majority “evaded . . . rules of interpretation” and incorrectly found statutory ambiguity); Valent v. Comm’r of Soc. Sec., 918 F.3d 516, 525 (6th Cir.

2019) (Kethledge, J., dissenting) (observing that “federal courts have become habituated to defer to the interpretive views of executive agencies, not as a matter

of last resort but of first”); Competitive Enter. Inst. v.

U.S. Dep’t of Transp., 863 F.3d 911, 921 (D.C. Cir.

2017) (Ginsburg, J., dissenting) (observing that, by

deferring to agency and failing to apply the common

meaning, the court had “manufacture[d] ambiguity”).

Some lower-court judges understand the need for

healthy Chevron skepticism, yet plead for further

guidance. Am. Lung Ass’n v. EPA, 985 F.3d 914, 1003

(D.C. Cir. 2021) (Walker, J., concurring in part, concurring in judgment in part, and dissenting in part)

(observing that “[o]ver time, the Supreme Court will

further illuminate the nature of major questions and

the limits of delegation”); Arangure v. Whitaker, 911

F.3d 333, 336, 339 (6th Cir. 2018) (Thapar, J.) (explaining that “all too often, courts abdicate th[eir]

duty by rushing to find statutes ambiguous, rather

than performing a full interpretive analysis” and that

the Supreme Court’s “lack of instruction has led to

some uncertainty in the lower courts”); Berndsen v.

N.D. Univ. Sys., 7 F.4th 782, 790–91 (8th Cir. 2021)

(Stras, J., concurring) (acknowledging that “concerns

about judicial deference . . . grow more pronounced

when an agency’s efforts [to speak clearly] create a

multi-layered web of regulations, interpretations,

22

clarifications of interpretations, and even clarifications of clarifications” until “the statute itself” “gets

buried under these layers of deference”).

For some time, members of the Court have recognized the need for a Chevron course correction. On the

eve of his retirement, Justice Kennedy observed that

“it seems necessary and appropriate to reconsider, in

an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”

Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring). In his view, “[t]he proper rules

for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.”

Id.

Justice Thomas has pointed to the “serious questions about the constitutionality of [the Court’s]

broader practice of deferring to agency interpretations of federal statutes.” Michigan v. EPA, 576 U.S.

at 760 (Thomas, J., concurring). Observing that “[the

Court] seem[s] to be straying further and further from

the Constitution without so much as pausing to ask

why,” he has suggested that the Court should revisit

those questions. Id. at 763–64.

And while on the Tenth Circuit, Justice Gorsuch

similarly remarked that “[m]aybe the time has come

[for the Court] to face the behemoth.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016)

(Gorsuch, J., concurring).

23

This case affords an excellent opportunity to provide necessary lower-court guidance and to ensure

that doctrines of agency deference properly preserve

the judicial role and the separation of powers.

2. The APA also requires de novo review of

statutes authorizing agency action, but

lower courts need guidance on that

score as well

In addition to respecting these constitutional responsibilities, courts must, under the APA, entertain

challenges to agency actions. And while the APA limits judicial review in some respects, “[t]here is no

statutory provision, in the APA or elsewhere, instructing courts to defer to agency interpretations of

ambiguous statutory texts.” Adler, supra, at 990.

The APA permits courts to uphold an agency action only after independently determining that the

action falls within the agency’s statutorily conferred

authority. Indeed, Section 706 of the APA explicitly

directs courts to decide “all relevant questions of

law.” 5 U.S.C. § 706. And for good reason: Without

judicial oversight, the APA would be wholly ineffective in policing administrative agencies. A court cannot know whether an “agency action” is “in excess of

statutory jurisdiction, authority, or limitations” unless it interprets the statute for itself. Id. § 706(2)(C).

The APA thus underscores courts’ constitutional

obligations to ensure agencies’ regulatory decisions

24

have been authorized by a congressional delegation

of authority. Cf. Perez v. Mortg. Bankers Ass’n, 575

U.S. 92, 109 (2015) (Scalia, J., concurring in the judgment) (acknowledging that the APA “contemplates

that courts, not agencies, will authoritatively resolve

ambiguities in statutes and regulations”).

The question is whether Chevron deference is consonant with the APA. When they properly apply

Chevron and afford deference only to an agency’s

choice among a range of alternatives approved by

Congress, courts perhaps “do not ignore” Section 706,

but instead “respect it” because they “give binding

deference to permissible agency interpretations of

statutory ambiguities because Congress has delegated to the agency the authority to interpret those

ambiguities ‘with the force of law.’” City of Arlington,

569 U.S. at 317 (Roberts, C.J., dissenting) (quoting

Mead, 533 U.S. at 229); see also Kisor v. Wilkie, 139

S. Ct. 2400, 2419 (2019) (citing this passage and offering a similar defense of Auer deference); Henry P.

Monaghan, Marbury and the Administrative State,

83 Colum. L. Rev. 1, 27–28 (1983) (noting that “the

court is not abdicating its constitutional duty to ‘say

what the law is’ by deferring to agency interpretations of law: it is simply applying the law as ‘made’

by the authorized law-making entity”).

Yet the tension between many applications of

Chevron and APA Section 706 is obvious. For example, where courts improperly apply Chevron step one

by failing to engage in de novo review of the statute,

25

they likewise fail to meet their statutory duty to decide “all relevant questions of law.” See, e.g., Valent,

918 F.3d at 525 (Kethledge, J., dissenting) (describing majority’s Chevron analysis where “the tools of

statutory construction [we]re hardly employed” and

led to deference to the agency’s definition that “construe[d] the words of the statute in a manner that no

ordinary speaker of the English language would recognize”); Aposhian, 989 F.3d at 898 (Tymkovich, dissenting) (describing majority’s failure to “exhaust all

the traditional tools [of interpretation]” before deferring to agency’s interpretation). Only this Court can

reconcile Chevron’s mandate with the courts’ reviewing responsibility under the APA by either returning

Chevron to lawful roots or overturning it altogether.

III. Alternatives to Broad Agency Deference

Are Workable

The experience of the States refutes any prediction

that requiring de novo consideration of delegated authority—or overruling Chevron entirely—would mean

excessive or unwarranted disruption.

Arizona, for example, abolished deference to

agency legal interpretations in 2018. See Ariz. Rev.

Stat. Ann. § 12-910(F) (“In a proceeding brought by or

against the regulated party, the court shall decide all

questions of law, including the interpretation of a constitutional or statutory provision or a rule adopted by

an agency, without deference to any previous determination that may have been made on the question

26

by the agency.”) (enacted by 2018 Ariz. Legis. Serv.

ch. 180 (H.B. 2238)).

No discernible negative consequences have yet

arisen. Indeed, the Arizona Supreme Court appears

to have mentioned the abolition of deference to legal

interpretations only twice. Saguaro Healing LLC v.

State, 470 P.3d 636, 638 (Ariz. 2020); Silver v. Pueblo

Del Sol Water Co., 423 P.3d 348, 356 (Ariz. 2018).

The Silver case demonstrates one reason why disruptions likely will be limited: legislative ratification

of long-standing agency interpretations will frequently render the issue of deference irrelevant. See

Silver, 423 P.3d at 356 (“[T]he dissents’ argument

conflates judicial deference (also known as ‘Chevron

deference’) with legislative adoption. The amendment

prohibits courts from deferring to agencies’ interpretations of law. The amendment does not, however,

prohibit the legislature from adopting an agency’s interpretation of a term of art. The latter is what we

have here . . . .” (citation omitted)).

Arizona is hardly alone in abolishing or limiting

Chevron-like deference. A recent survey of states produced the “key finding . . . that not only have a large

number of states abandoned deference but that a significant number of states have also moved away from

deference in less dramatic respects.” Daniel Ortner,

The End of Deference: How States Are Leading a

(Sometimes Quiet) Revolution Against Administrative

Deference Doctrines, at 4 (March 11, 2020),

https://ssrn.com/abstract=3552321. Indeed, ten states

27

have abolished such deference either by judicial decision (Arkansas, Colorado, Delaware, Kansas, Michigan, Mississippi, Utah, and Wisconsin) or by statute

or constitutional amendment (Arizona, Florida, and

Wisconsin). Id. at 9–23. Meanwhile, “no states . . .

have gotten appreciably more deferential in the past

20 years.” Id. at 3 n.4, 68–69. This “quiet revolution”

underscores how minimally disruptive overruling

Chevron would be.

CONCLUSION

The Court should grant the petition and reverse

the decision below.

Respectfully submitted,

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy

BRUNN W. ROYSDEN III

Solicitor General

DREW C. ENSIGN

Deputy Solicitor General

Office of the Attorney General

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

beau.roysden@az.ag.gov

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

JULIA C. PAYNE

MELINDA R. HOLMES

Deputy Attorneys General

Office of the Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

tom.fisher@atg.in.gov

Counsel for Amici States

*Counsel of Record

Dated: February 7, 2022

28

ADDITIONAL COUNSEL

Counsel for Amici States

STEVE MARSHALL

Attorney General

State of Alabama

DAVE YOST

Attorney General

State of Ohio

TREG TAYLOR

Attorney General

State of Alaska

JOHN M. O’CONNOR

Attorney General

State of Oklahoma

LESLIE RUTLEDGE

Attorney General

State of Arkansas

ALAN WILSON

Attorney General

State of South Carolina

JEFF LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

SEAN REYES

Attorney General

State of Utah

AUSTIN KNUDSEN

Attorney General

State of Montana

JASON S. MIYARES

Attorney General

State of Virginia

DOUG PETERSON

Attorney General

State of Nebraska