Amicus Curiae Brief — Relentless, Inc., et al., Petitioners v. Department of Commerce, et al.

Supreme Court briefJul 17, 2023

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No. 22-1219

IN THE

Supreme Court of the United States

RELENTLESS, INC., ET AL.,

Petitioners,

UNITED STATES DEPARTMENT OF COMMERCE. ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF AMICI CURIAE THE

SOUTHEASTERN LEGAL FOUNDATION AND

THE DEFENSE OF FREEDOM INSTITUTE

IN SUPPORT OF PETITIONERS

Braden H. Boucek

Kimberly S. Hermann

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd.

Suite 104

Roswell, GA 30075

(770) 977-2131

Donald A. Daugherty, Jr.

DEFENSE OF FREEDOM

INSTITUTE

1455 Pennsylvania. Ave., NW

Suite 400

Washington, DC 20004

(414) 559-6902

July 17, 2023

Thomas R. McCarthy

Counsel of Record

J. Michael Connolly

Tiffany H. Bates

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................. 2

ARGUMENT ............................................................. 5

The Court should grant the petition, because

allowing agencies to evade congressional

appropriations and pass off enforcement costs

to regulated parties violates the separation of

powers.................................................................. 5

II. The Court should grant the petition to resolve

the meaning of “necessary and appropriate” in

the MSA............................................................... 9

A. The courts below interpreted the MSA’s

“necessary and appropriate” far too

broadly .......................................................... 9

B. The lower courts are divided on the

meaning of “necessary and appropriate.” .. 11

C. A discretion-limiting interpretation of

“necessary and appropriate” is more

textually sound ........................................... 13

D. If any ambiguity exists, the Court should

construe the phrase narrowly to avoid

raising constitutional questions about

delegation.................................................... 14

III. This Court should grant the petition and hear

this case along with Loper Bright consider

whether to overrule Chevron ............................ 17

A. Chevron violates the separation of powers.. 17

Chevron violates basic due process

principles .................................................... 21

CONCLUSION ........................................................ 25

iii

TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935)................................................ 15

Al-Bihani v. Obama,

619 F.3d 1 (D.C. Cir. 2010) ....................................13

Buffington v. McDonough,

143 S. Ct. 14 (2022).............................. 19, 21, 23, 24

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

467 U.S. 837 (1984)...................................3, 4, 17-24

Clinton v. City of N.Y.,

524 U.S. 417 (1998).......................................... 17, 20

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

575 U.S. 43 (2015)...................................... 19, 20, 21

Egan v. Delaware River Port Auth.,

851 F.3d 263 (3d. Cir. 2017) .............................. 4, 24

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

561 U.S. 477 (2010)................................................ 20

Fuentes v. Shevin,

407 U.S. 67 (1972).................................................. 24

Goethel v. Pritzker,

No. 15-cv-497-JL, 2016 WL 4076831

(D.N.H. July 29, 2016) ..................................... 10, 13

Goethel v. U.S. Dep’t of Commerce,

854 F.3d 106 (1st Cir. 2017) ..................................13

Goldberg v. Kelly,

397 U.S. 254 (1970)................................................ 22

Gundy v. United States,

139 S. Ct. 2116 (2019)............................................ 15

Guthrie v. Wis. Emp. Rels. Comm’n,

111 Wis. 2d 447 (1983)..................................... 21, 22

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016).............................. 21

Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013)................................ 19

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

Inst., 448 U.S. 607 (1980) ................................ 15, 16

Kennedy v. Butler Fin. Sols., LLC,

2009 WL 290471 (N.D. Ill. Feb. 4, 2009) .............. 19

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)..............................................1

Loper Bright Enterprises, Inc. v.

Raimondo, 45 F.4th 359

(D.C. Cir. 2022) ........................ 2, 3, 5, 6, 8, 9, 12, 16

Loper Bright Enterprises v. Raimondo,

No. 22-451, 2023 WL 3158352

(U.S. May 1, 2023) ............................................. 2, 17

Marbury v. Madison,

5 U.S. 137 (1803).................................................... 18

Metro. Washington Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc.,

501 U.S. 252 (1991)................................................ 17

Mexican Gulf Fishing Co. v. U.S. Dep’t of

Com., 60 F.4th 956 (5th Cir. 2023)............ 12, 14, 16

Michigan v. EPA,

576 U.S. 743 (2015).................................... 11, 12, 13

Mistretta v. United States,

488 U.S. 361 (1989)................................................ 15

N.Y. Stock Exch. LLC v. SEC,

962 F.3d 541 (D.C. Cir. 2020) ................................ 13

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018)................................................1

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

Internet Servs., 545 U.S. 967 (2005).................. 4, 20

Nat’l Grain & Feed Ass’n v. OSHA,

866 F.2d 717 (5th Cir. 1988).................................. 12

Ocean Conservancy v. Gutierrez,

394 F. Supp. 3d 147 (D.D.C. 2005 ......................... 12

Olivas-Motta v. Holder,

746 F.3d 907 (9th Cir. 2013)............................ 12, 14

Padilla-Caldera v. Holder,

637 F.3d 1140 (10th Cir. 2011)..............................20

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) .................................. 20

Sanchez v. Att’y Gen. of the U.S.,

997 F.3d 113 (3d. Cir. 2021) .................................. 12

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020)...................................... 18, 20

Serono Lab’ys, Inc. v. Shalala,

158 F.3d 1313 (D.C. Cir. 1998) .............................. 22

Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue,

382 Wis. 2d 496 (2018)........................................... 23

U.S. Dep’t of Navy v. Fed. Lab. Rel. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) ........................ 6, 7, 8

United States ex rel. Att’y Gen. v. Del. & Hudson

Co., 213 U.S. 366 (1909) ........................................ 14

United States v. Am. Trucking Assns., Inc.,

310 U.S. 534 (1940)................................................ 18

United States v. Havis,

907 F.3d 439 (6th Cir. 2018), rev’d en banc,

927 F.3d 382 (6th Cir. 2019).................................. 22

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014)..................................................1

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................. 15

Whitman v. Am. Truckers Ass’n, Inc.,

531 U.S. 457 (2001)................................................ 16

Williams v. Pennsylvania,

579 U.S. 1 (2016).................................................... 23

Constitution and Statutes

U.S. Const. art. I, §9, cl. 7 ...........................................6

U.S. Const. art. III.....................................................18

16 U.S.C. §1853 ......................................................... 10

16 U.S.C. §1853(b) ..................................................... 10

16 U.S.C. §1853(b)(14) .............................................. 10

16 U.S.C. §1801(a)(6) ................................................ 10

31 U.S.C. §1341(a)(1) ..................................................5

31 U.S.C. §3302(b) .......................................................5

Other Authorities

A. Bamzai, The Origins of Judicial Deference to

Executive Interpretation,

126 Yale L. J. 908 (2017) .......................................21

vii

Todd Garvey & Daniel J. Sheffner, Congress’s

Authority to Influence and Control Executive

Branch Agencies, Cong. Research Serv., R45442

(May 12, 2021) .........................................................7

Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187 (2016) ......................... 21, 22, 23

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

129 Harv. L. Rev. 2118 (2016) ......................... 24, 25

New Oxford American Dictionary

(Angus Stevenson and Christine A. Lindberg

eds., 3rd ed. 2010) .................................................. 13

Zachary S. Price, Funding Restrictions and

Separation of Powers,

71 Vand. L. Rev. 357 (2018) ....................................8

Antonin Scalia & Bryan A. Garner, Reading Law ... 14

Sean M. Stiff, Congress’s Power Over

Appropriations: Constitutional and Statutory

Provisions, Cong. Research Serv., R46417

(June 16, 2020).........................................................7

Kate Stith, Appropriations Clause, Nat’l Const.

Ctr., perma.cc/T7EW-S5BM ....................................6

Kate Stith, Congress’ Power of the Purse,

97 Yale L.J. 1343 (1988) .............................. 2, 3, 8, 9

3 Joseph Story, Commentaries on the Constitution

of the United States (1833) .....................................8

Cass R. Sunstein, Law and Administration After

Chevron, 90 Colum. L. Rev. 2071 (1990) .............. 18

The Federalist No. 10 ................................................ 23

The Federalist No. 47 ................................................ 17

viii

The Federalist No. 51 ................................................ 19

The Federalist No. 58 ..................................................6

The Federalist No. 78 .......................................... 18, 20

Laurence H. Tribe, American Constitutional Law

(2d ed. 1988) .........................................................7, 8

U.S. Jud. Conduct Code, Canon 1............................. 22

U.S. Jud. Conduct Code, Canon 3............................. 22

INTEREST OF AMICI CURIAE 1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates for constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion. In

particular, SLF advocates to protect individual rights

and the framework set forth to protect such rights in

the Constitution. This aspect of its advocacy is

reflected in the regular representation of those

challenging overreaching governmental and other

actions in violation of the constitutional framework.

See, e.g., Util. Air Regulatory Grp. v. EPA, 573 U.S.

302 (2014), and Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138

S. Ct. 617 (2018). SLF also regularly files amicus

curiae briefs with this Court about issues of agency

overreach and deference. See, e.g., Kisor v. Wilkie, 139

S. Ct. 2400 (2019).

The Defense of Freedom Institute for Policy

Studies, Inc. (DFI) is a nonprofit, nonpartisan

501(c)(3) institute dedicated to defending and

advancing freedom and opportunity for every

American family, student, entrepreneur, and worker,

and to protecting the civil and constitutional rights of

Americans at school and in the workplace. Founded in

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amici curiae or its counsel has made a monetary contribution to

the preparation or submission of this brief. Parties received

timely notice of this brief.

2021 by former senior leaders of the U.S. Department

of Education who are experts in education law and

policy, DFI has a significant interest in challenging

administrative overreach by the Department. DFI’s

efforts in support of its mission include litigating

federal authority under the Constitution to take

actions through rulemaking or otherwise.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

For more than three decades, the MagnusonStevens Fishery Conservation and Management Act

of 1976 (MSA) has authorized the National Marine

Fisheries Service to require commercial herring

fisherman to carry third-party monitors on board to

monitor their compliance with federal fishing

regulations. But when the agency ran out of money for

the monitors, it shifted the responsibility of paying for

them (an estimated $710 per day) to the fishermen

themselves. In doing so, the agency evaded Congress’s

power over the purse and its ability to limit agency

programming through appropriations.

That scheme raises serious separation of powers

issues. The power of the purse is an important check

on federal agencies. And “absent express statutory

authority … agencies can only spend as much money

as Congress appropriates.” Loper Bright Enterprises,

Inc. v. Raimondo, 45 F.4th 359, 373 (D.C. Cir. 2022),

cert. granted in part sub nom. Loper Bright

Enterprises v. Raimondo, No. 22-451, 2023 WL

3158352 (U.S. May 1, 2023) (Walker, J., dissenting).

They may not “resort to nonappropriation financing”

without express authority to do so. Kate Stith,

Congress’ Power of the Purse, 97 Yale L.J. 1343, 1356

(1988). If an agency “could avoid limitations imposed

by Congress in appropriations legislation[] by

independently financing its activities,” it “would

vitiate the foundational Constitutional decision to

empower Congress to determine what actions shall be

undertaken in the name of the United States.” Id. Yet

the Fisheries Service “attempted a workaround” of

those constraints here. Loper Bright, 45 F.4th at 373

(Walker, J., dissenting). The Court should not allow it.

Further, the Court should grant the petition to

resolve the meaning of the phrase “necessary and

appropriate,” which has divided the lower courts. In

determining that industry-funded monitors are

“necessary and appropriate” under the MSA, the

courts below gave that provision a meaning that is far

too broad and allowed the agency to expand its power

and ignore the costs that the program imposed on

fishermen. In the MSA and other statutes, “necessary

and appropriate” is most naturally read as a

discretion-limiting provision. But even if the phrase

was not clear, any ambiguity should be read narrowly

to avoid raising constitutional questions about

delegation.

Finally, Amici agree that the Court should

reconsider Chevron. Chevron requires courts to

uphold an agency’s interpretation of a statute—even

if not the best interpretation—so long as that

interpretation is reasonable. This approach forces

courts to defer to agencies on questions of law, thus

requiring the judiciary to shirk its duty to say what

the law is. Time and again, Chevron forces judges to

uphold interpretations that they believe are wrong.

Indeed, “Chevron teaches that a court’s opinion as to

the best reading of an ambiguous statute an agency is

charged with administering is not authoritative.”

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

Servs., 545 U.S. 967, 983 (2005). That approach

represents a significant shift of power from the

judiciary to administrative agencies and violates the

separation of powers.

Chevron also violates bedrock principles of due

process.

Among

other

concerns,

Chevron

systematically tips the scales in the government’s

favor, allows an agency to act as its own judge, and

deprives non-agency parties of fair notice. That

scheme is incompatible with the Constitution’s most

fundamental safeguards. Indeed, it is “contrary to the

roles assigned to the separate branches of

government” and “require[s] [judges] at times to lay

aside fairness and [their] own best judgment and

instead bow to the nation’s most powerful litigant, the

government, for no reason other than that it is the

government.” Egan v. Delaware River Port Auth., 851

F.3d 263, 278 (3d. Cir. 2017) (Jordan, J., concurring in

the judgment).

The Court should grant the petition and reverse

the decision below.

ARGUMENT

The Court should grant the petition,

because allowing agencies to evade

congressional appropriations and pass off

enforcement costs to regulated parties

violates the separation of powers.

For at least the last decade, “the Fisheries Service

has had trouble affording its preferred monitoring

programs with just its congressionally appropriated

funds.” This presented a serious problem for the

agency. “[A]bsent express statutory authority …

agencies can only spend as much money as Congress

appropriates.” Id.; see e.g., 31 U.S.C. §1341(a)(1) (“An

officer or employee of the United States Government

or of the District of Columbia government may not—

(A) make or authorize an expenditure or obligation

exceeding an amount available in an appropriation or

fund for the expenditure or obligation”). And

“Congress generally prohibits an agency from

collecting fees and keeping the money from those fees

for the agency’s own purposes.” Loper Bright, 45 F.4th

at 373 (Walker, J., dissenting); see 31 U.S.C. §3302(b)

(barring agencies from collecting fees and keeping

that money to fund the agency itself; and requiring

government officials “receiving money … from any

source” to “deposit the money in the Treasury as soon

as practicable” unless Congress establishes an

exception).

So the Fisheries Service “attempted a

workaround.” Loper Bright, 45 F.4th at 373 (Walker,

J., dissenting). “It decided to make fishing

companies,” like Relentless, Inc., “hire and pay for

their own at-sea monitors.” Id. While the agency itself

acknowledged in a related case that claiming this

power to force the regulated community to pay for the

government’s monitoring efforts was controversial

and “highly sensitive,” Loper Bright, CADC App. 293,

it claimed that power nevertheless. It simply

classified the burden of contracting $700 a day thirdparty monitors as a reasonable compliance cost,

thereby evading Congress’s power of the purse and its

ability to limit agency programming through

appropriations. But by interpreting the MagnusonStevens Act to allow the agency to circumvent that

process, this scheme raises serious separation-ofpowers concerns.

“Congress’s ‘power of the purse’ is at the

foundation of our Constitution’s separation of powers,

a constitutionally mandated check on Executive

power.” Kate Stith, Appropriations Clause, Nat’l

Const. Ctr., perma.cc/T7EW-S5BM; see U.S. Const.

art. I, §9, cl. 7 (“No money shall be drawn from the

Treasury, but in Consequence of Appropriations made

by Law”). Indeed, the Founders considered giving the

power of the purse to Congress alone as a key

structural curb on executive authority. See The

Federalist No. 58 (J. Madison) (“This power over the

purse may, in fact, be regarded as the most complete

and effectual weapon with which any constitution can

arm the immediate representatives of the people, for

obtaining a redress of every grievance, and for

carrying into effect every just and salutary

measure.”). And it remains a “bulwark of the

Constitution’s separation of powers among the three

branches of the National Government.” U.S. Dep’t of

Navy v. Fed. Lab. Rel. Auth., 665 F.3d 1339, 1347

(D.C. Cir. 2012) (Kavanaugh, J.).

For decades, however, executive agencies abused

the appropriations process. See Sean M. Stiff,

Congress’s Power Over Appropriations: Constitutional

and Statutory Provisions, Cong. Research Serv.,

R46417, 2 (June 16, 2020) (“Agencies augmented their

own budgets by retaining and using public money;

obligated an appropriation beyond its purpose;

wrested greater funding from Congress by spending

all that Congress had appropriated previously or

obligated for purposes not permitted by the

appropriation; and refused to obligate funds to

advance policies with which a President disagreed.”).

In response, “Congress adopted a series of generally

applicable ‘fiscal control’ statutes designed to” reclaim

its power over appropriations and to “tighten its hold

on the purse strings.” Id.

Today, the power of the purse remains an

important check on federal agencies. Indeed, it

remains one of the few practical checks on

overregulation. “Congress exercises virtually plenary

control over agency funding.” Todd Garvey & Daniel

J. Sheffner, Congress’s Authority to Influence and

Control Executive Branch Agencies, Cong. Research

Serv., R45442, 14 (May 12, 2021). And this power “can

be used to control agency priorities, prohibit agency

action by denying funds for a specific action, or force

agency action by either explicitly appropriating funds

for a program or activity or withholding agency

funding until Congress’s wishes are complied with.”

Id.; see also Laurence H. Tribe, American

Constitutional Law 221-22 (2d ed. 1988) (“Congress

may simply refuse to appropriate funds for policies it

deems unsound.”). This power is a particularly potent

tool for Congress because, unlike legislation, a

President cannot veto the absence of an appropriation.

See Zachary S. Price, Funding Restrictions and

Separation of Powers, 71 Vand. L. Rev. 357, 367-68

(2018) (“Congress has ensured that presidents must

always come back every year seeking money just to

keep the government’s lights on.”); U.S. Dep’t of Navy,

665 F.3d at 1347 (Kavanaugh, J.) (Congress’s

appropriations power “is particularly important as a

restraint on Executive Branch officers.”).

Yet the “attempted [] workaround” here, Loper

Bright, 45 F.4th at 373 (Walker, J., dissenting), allows

the agency to independently fund its operations

without congressional authorization. That scheme

undercuts the constitutional safeguards provided by

the congressional appropriations process. See Stith,

Congress’ Power of the Purse, supra, 1356.

Under the government’s theory, any agency could

evade congressional oversight by designing a

regulatory program that simply transferred the

agency’s costs directly on regulated parties. See Dep’t

of Navy, 665 F.3d at 1347 (Kavanaugh, J.) (quoting 3

Joseph Story, Commentaries on the Constitution of

the United States, §1342, at 213-14 (1833)) (“If not for

the Appropriations Clause, ‘the executive would

possess an unbounded power over the public purse of

the nation.’”). Indeed, as Judge Walker recognized in

a related case, the agency’s theory could allow it—or

other agencies—to evade congressional oversight

altogether. Loper Bright, 45 F.4th at 373 (Walker, J.,

dissenting) (“[W]hat if Congress were to entirely

defund the compliance mechanisms of the Fisheries

Service—could the agency continue to operate by

requiring the industry to fund [the agency]? That …

could undermine Congress’s power of the purse.”).

That theory would fundamentally undermine the

separation of powers.

At bottom, “[f]ederal agencies may not resort to

nonappropriation financing.” Stith, Congress’ Power of

the Purse, supra, 1356. “[T]heir activities are

authorized only to the extent of their appropriations.”

Id. Thus, when an agency seeks funding outside of the

appropriations process without express statutory

authority, it presents serious separation-of-powers

issues. The Court should take this case to consider and

address the Fisheries Service’s nonappropriation

financing.

II. The Court should grant the petition to

resolve the meaning of “necessary and

appropriate” in the MSA.

A. The courts below interpreted the MSA’s

“necessary and appropriate” far too

broadly.

In determining that industry-funded monitors are

“necessary and appropriate” under the MSA, the

courts below gave that provision a meaning that is far

too broad. This reading allowed the agency to expand

its power and ignore the costs the program imposed on

fishermen. The agency itself estimated that it would

cost fisherman $710 dollars a day—“an amount that

can exceed the profits from a day’s fishing.” Pet. 2.

The Fisheries Service sought to justify its program

under its authority to implement comprehensive

fishery management programs. See 16 U.S.C.

§1801(a)(6). The law directs regional fisheries councils

to create and implement these plans within certain

defined limits. Id. §1853. And section 1853(b) specifies

the areas in which the fishery management programs

may permissibly regulate. That subsection ends with

a catchall provision that authorizes measures that are

“necessary and appropriate” to conserve the fishery.

Id. §1853(b)(14). But the MSA does not explicitly

authorize the New England Fishery Management

Council’s industry-funded monitoring scheme. So the

Council relied on the breadth of the “necessary and

appropriate” language in §1853 to justify passing off

monitoring costs to the fishermen themselves.

The courts below ignored the grave separation

powers concerns of the Fisheries Service’s

nonappropriation financing. The district court

determined that the agency “reasonably concluded

that industry monitored funding was necessary and

appropriate to effectuate the goals of the Atlantic

herring fishery management plan and the MSA.” App.

64a-65a. And the First Circuit tacitly accepted this

reading without conducting its own inquiry into the

meaning of the phrase. See App. 13a. Instead, it relied

on Goethel v. Pritzker, No. 15-CV497-JL, 2016 WL

4076831 *4 (D.N.H. July 29, 2016), which interpreted

the language “necessary and appropriate” as

“augment[ing] whatever existing powers have been

conferred on [the agency] by Congress.”

That decision flies in the face of this Court’s

interpretation of similar language. In Michigan v.

EPA, 576 U.S. 743 (2015), this Court held that a

“necessary and appropriate” clause in the Clean Air

Act requires an agency to weigh the various, contextsensitive factors that inform sound policy. This almost

always requires “some attention to cost,” because

Congress tasks agencies with promulgating policy

under conditions of scarcity. See id. at 752. Put simply,

“necessary and appropriate” clauses are one way that

Congress expresses its view that promulgating highcost, low-return policies is “[ir]rational, never mind

‘appropriate.’” Id. The First Circuit did not so much as

cite Michigan, let alone acknowledge that it might

cabin the Council’s discretion.

In keeping with its view that such language

augments agency power, the court below failed to

analyze the reasonableness or “necessary and

appropriate” nature of this regulation, and it allowed

the agency to essentially ignore the cost of the

regulation. It did this even though the agency initially

estimated that the program would cost fisherman

$710 dollars a day. Pet. 2. Asked to account for actual

costs during the course of litigation, the agency could

not do so. Instead, the court below speculated the costs

would not be as high as the regulation initially

estimated. App. 15a n.5.

B. The lower courts are divided on the

meaning of “necessary and appropriate.”

Some courts have adopted a discretion-limiting

interpretation of “necessary and appropriate” in the

MSA. Earlier this year, for example, the Fifth Circuit

concluded that “the adjectives necessary and

appropriate limit the authorization contained in th[at]

provision” of the MSA. Mexican Gulf Fishing Co. v.

U.S. Dep’t of Com., 60 F.4th 956, 965 (5th Cir. 2023)

(emphasis in original); see also Ocean Conservancy v.

Gutierrez, 394 F. Supp. 3d 147, 156 (D.D.C. 2005)

(“[NMFS’s] discretion is tempered by substantive

elements of the [MSA] that require all regulations to

be ‘necessary and appropriate’’’). This discretion

limiting approach typically requires agencies to

consider costs. See, e.g., Mexican Gulf, 60 F.4th at 965

(“[T]he rule is authorized by the Magnuson-Stevens

Act only if it is necessary and appropriate, which at a

minimum requires that its benefits reasonably

outweigh its costs.”). And that reading comports with

the use of “necessary and appropriate” in other

instances too. See Nat’l Grain & Feed Ass’n v. OSHA,

866 F.2d 717, 733 (5th Cir. 1988) (holding that

“necessary or appropriate” clauses call for “costbenefit justification”). Olivas-Motta v. Holder, 746

F.3d 907, 918 (9th Cir. 2013) (Kleinfeld, J.,

concurring) (A “necessary and appropriate” clause “is

considerably narrower than the word ‘any’ might be,

because it requires necessity and appropriateness.”);

Sanchez v. Att’y Gen. of the U.S., 997 F.3d 113, 121

(3d. Cir. 2021) (“appropriate and necessary” is

“limiting”).

Other courts—including the court below—have

held that the phrase is discretion-conferring. Last

year, in Loper Bright, the D.C. Circuit concluded that

the MSA’s “necessary and appropriate” provision was

a “‘capacious[]’ grant of power that ‘leaves agencies

with flexibility.’” 45 F.4th at 366 (quoting Michigan,

576 U.S. at 752). See also Goethel, 2016 WL at *4

(explaining that “necessary and appropriate” serves to

augment agency powers delegated in the statute but

cannot itself serve as an independent source of

authority); Al-Bihani v. Obama, 619 F.3d 1, 25 n.11

(D.C. Cir. 2010) (in other contexts, “the words

‘necessary and appropriate’ … are more naturally

read as emphasizing the breadth of the

authorization”).

These

divergent

views

yield

significant

consequences for the Petitioners and the rest of the

fishing industry, which operates on every coast. That

division alone merits this Court’s review.

C. A discretion-limiting interpretation of

“necessary and appropriate” is more

textually sound.

In the MSA and other statutes, “necessary and

appropriate” is most naturally read as a discretionlimiting provision. “Necessary” does not encompass all

possible actions. Rather, it extends only to those that

are “needed” or “essential.” New Oxford American

Dictionary 1170 (Angus Stevenson and Christine A.

Lindberg eds., 3rd ed. 2010). The word “appropriate”

characterizes actions that are “suitable or proper in

the circumstances.” Id. at 77. Taken together, these

words cabin discretion by requiring the agency to

“spell out the need for any proposed rule and its

potential drawbacks.” N.Y. Stock Exch. LLC v. SEC,

962 F.3d 541, 561 (D.C. Cir. 2020) (Pillard, J.,

concurring). Thus, the most textually sound reading

of “necessary and appropriate” is the reading that

requires agencies to weigh the costs and benefits of a

particular policy before promulgating it. See, e.g.,

Mexican Gulf, 60 F.4th at 965 (“[T]he adjectives

necessary and appropriate limit the authorization

contained in this provision.”) (emphasis in original).

Moreover, because “necessary and appropriate”

clauses are discretion limiting and “require[] necessity

and appropriateness,” they do not grant independent

authority to promulgate rules not otherwise permitted

by the statute. Olivas-Motta, 746 F.3d at 918

(Kleinfeld, J., concurring).

D. If any ambiguity exists, the Court should

construe the phrase narrowly to avoid

raising constitutional questions about

delegation.

Even if there was some ambiguity about how to

interpret the MSA’s “necessary and appropriate”

clause, it should be resolved in favor of the narrower

interpretation to avoid raising serious constitutional

questions present here. “[W]here a statute is

susceptible of two constructions, by one of which grave

and doubtful constitutional questions arise and by the

other of which such questions are avoided, [this

Court’s] duty is to adopt the latter.” United States ex

rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408

(1909). Constitutional avoidance is appropriate when

an alternative interpretation “raise[s] serious

questions of constitutionality.” Antonin Scalia &

Bryan A. Garner, Reading Law 248.

A broad interpretation of “necessary and

appropriate” raises serious questions here concerning

congressional delegation of power. “Congress may not

transfer to another branch ‘powers which are strictly

and exclusively legislative.’” Gundy v. United States,

139 S. Ct. 2116, 2131 (2019) (quoting Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)).

Though the Court has seldom invoked the

nondelegation doctrine to invalidate statutes, the

doctrine often informs statutory construction. See,

e.g., Mistretta v. United States, 488 U.S. 361, 373 n.7

(1989) (“[O]ur application of the nondelegation

doctrine principally has” consisted of “giving narrow

constructions to statutory delegations that might

otherwise be thought to be unconstitutional.”).

In Industrial Union Department, AFL-CIO v.

American Petroleum Institute, this Court held that the

phrase “necessary and appropriate” may raise

delegation problems. 448 U.S. 607, 646 (1980). In that

case, this Court interpreted §3(8) of the Occupation

Health and Safety Act, which granted OSHA the

authority to promulgate regulations “reasonably

necessary and appropriate” to ensure workplace

safety. 448 U.S. 607 (1980). The Court adopted a

construction that cabined the Secretary’s discretion

because the alternative would constitute a “‘sweeping

delegation of legislative power’ that might be

unconstitutional.” Id. at 646 (quoting A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 539

(1935)). Concurring, Justice Powell explained that a

broad reading of “reasonably necessary and

appropriate” would require Congress to have

delegated an “irrational” amount of discretion to the

agency. Id. at 670 (Powell, J., concurring).

This Court’s logic in American Petroleum applies

with equal force here. The First Circuit’s reading of

“necessary and appropriate” lacks any clear

“intelligible principle” to guide agency action. See

Whitman v. Am. Truckers Ass’n, Inc., 531 U.S. 457,

458 (2001) (holding that a congressional act of

delegation must “lay down an intelligible principle to

which the person or body authorized to act is directed

to conform”). It is not clear whether the court below

would deem anything outside the scope of the statute’s

“necessary and appropriate” language. A capacious

reading plausibly permits all sorts of peculiar

hypothetical regulations that have a tenuous link to

Congress’ intended scheme. E.g., Loper, 45 F.4th at

377 (Walker, J., dissenting) (“Could the agency

require the fishermen to drive regulators to their

government offices if gas gets too expensive?”). At a

minimum, this raises the possibility of a delegation

issue.

Recently, the Fifth Circuit invoked constitutional

avoidance while constructing this very language in

the MSA. In Mexican Gulf, fishermen challenged a

rule requiring covered fishing vessels to install GPS

trackers. Though the court found the meaning of

“necessary and appropriate” to be sufficiently clear to

adopt the narrow interpretation, they “[a]dd[ed] belt

to suspenders.” App. 15a. Assuming in the alternative

that the phrase was vague, the court still adopted the

narrow interpretation because it avoided a potential

Fourth Amendment problem with the challenged rule.

Mexican Gulf, 60 F.4th at 966-67. This Court should

do the same if it finds that “necessary and

appropriate” is vague and adopt the interpretation

least likely to raise a constitutional issue.

III. This Court should grant the petition and

hear this case along with Loper Bright

consider whether to overrule Chevron.

Finally, this case also asks the Court to reconsider

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

467 U.S. 837 (1984). Amici agree. Chevron violates the

separation of powers and basic principles of due

process. This Court has already granted a petition

asking the Court to reconsider Chevron. See Loper

Bright, No. 22-451. The Court should also grant this

petition, hear these cases together, and overrule

Chevron. At the very least, the Court should hold this

case in light of Loper Bright.

A. Chevron violates the separation of powers.

The separation of powers is an “essential

precaution in favor of liberty.” The Federalist No. 47

(J. Madison). Indeed, the “ultimate purpose” of the

separation of powers “is to protect the liberty and

security of the governed.” Metro. Washington Airports

Auth. v. Citizens for Abatement of Aircraft Noise, Inc.,

501 U.S. 252, 272 (1991). But “[l]iberty is always at

stake when one or more of the branches seek to

transgress the separation of powers.” Clinton v. City

of N.Y., 524 U.S. 417, 450 (1998) (Kennedy, J.,

concurring). Because the “accumulation of all powers,

legislative, executive, and judiciary, in the same

hands, … may justly be pronounced the very

definition of tyranny,” the Framers formed a

government that would keep those powers “separate

and distinct.” The Federalist No. 47, supra. They thus

adopted a Constitution that “set[] out three branches

and vest[ed] a different form of power in each—

legislative, executive, and judicial.” Seila Law LLC v.

CFPB, 140 S. Ct. 2183, 2212 (2020) (Thomas, J.,

concurring in part).

Article III vests “[t]he judicial Power of the United

States” in the federal courts alone. That division of

power was intentional. The Framers believed that

“the general liberty of the people can never be

endangered … so long as the judiciary remains truly

distinct from both the legislative and executive.” The

Federalist No. 78 (A. Hamilton). But Chevron—which

often requires judges to defer to an agency’s judgment

on questions of law—reallocates considerable judicial

power to federal agencies.

When agencies interpret the law, they exercise

“[t]he judicial Power of the United States.” U.S.

Const., art. III, §1. “The interpretation of the meaning

of statutes, as applied to justiciable controversies, is

exclusively a judicial function.” United States v. Am.

Trucking Assns., Inc., 310 U.S. 534, 544 (1940). In the

familiar words of Chief Justice John Marshall, “[i]t is

emphatically the province and duty of the judicial

department to say what the law is.” Marbury v.

Madison, 5 U.S. 137, 177 (1803). Yet Chevron forces

judges to shirk this duty. It is unsurprising, then, that

scholars have described Chevron deference as

“counter-Marbury.” Cass R. Sunstein, Law and

Administration After Chevron, 90 Colum. L. Rev.

2071, 2074-75 (1990). Under Chevron, judges do not

“say what the law is.” Instead, they pass off that task

to an agency, violating the separation of powers.

Chevron invites executive agencies to take on the

role of independent judges. It conflicts with the

“traditional rule that judges must exercise

independent judgment about the law’s meaning.”

Buffington v. McDonough, 143 S. Ct. 14, 17 (2022)

(Gorsuch, J.). And it instructs judges to “bypass[] any

independent review of the relevant statutes.” Id. at 14;

see, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081,

1087 (9th Cir. 2013) (“If the [agency’s] construction is

reasonable, we must accept that construction under

Chevron, even if we believe the agency’s reading is not

the best statutory interpretation.”). Yet neither

Congress nor the courts have constitutional authority

to transfer the judicial power to agencies. Indeed, the

“Vesting Clauses are exclusive” and “the branch in

which a power is vested may not give it up or

otherwise reallocate it.” Dep’t of Transp. v. Ass’n of

Am. Railroads, 575 U.S. 43, 74 (2015) (Thomas, J.,

concurring in the judgment). The Framers “were

concerned not just with the starting allocation, but

with the ‘gradual concentration of the several powers

in the same department.’” Id. (quoting The Federalist

No. 51 (J. Madison)). On top of that, agency

bureaucrats—who are responsive to political

pressures, budgetary concerns, and potential

removal—make poor substitutes for independent

judges who enjoy tenure and salary protections.

Over and over, Chevron forces judges to uphold

interpretations that they believe are wrong. See, e.g.,

Kennedy v. Butler Fin. Sols., LLC, 2009 WL 290471,

at *4 (N.D. Ill. Feb. 4, 2009) (“The FTC’s regulation

strikes the Court as reasonable, though perhaps not

the best interpretation of the law.”). And sometimes

courts are required to uphold an interpretation that

they have previously rejected. See, e.g., PadillaCaldera v. Holder, 637 F.3d 1140, 1147-1152 (10th

Cir. 2011) (holding that under Chevron the court is

obligated

discard

its

earlier

statutory

interpretation

and

defer

the

agency’s

interpretation). In fact, “Chevron teaches that a

court’s opinion as to the best reading of an ambiguous

statute an agency is charged with administering is not

authoritative.” Brand X Internet Servs., 545 U.S. at

983.

Chevron thus shifts substantial power from the

judiciary to administrative agencies, disrupting the

Constitution’s careful allocation of power amongst the

three branches. From the start, the Framers

identified the judiciary as “the weakest of the three

departments of power.” The Federalist No. 78, supra.

But under Chevron, courts are made even weaker.

Indeed, Chevron effectively renders the judiciary a

rubber stamp for agencies that “wield[] vast power

and touch[] almost every aspect of daily life.” Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.

477, 499 (2010). Such a scheme “‘pose[s] a significant

threat to individual liberty and to the constitutional

system of separation of powers and checks and

balances.’” Seila Law LLC, 140 S. Ct. at 2212

(Thomas, J., concurring in part) (quoting PHH Corp.

v. CFPB, 881 F.3d 75, 165 (D.C. Cir. 2018)

(Kavanaugh, J., dissenting)). “Abdication of

responsibility is not part of the constitutional design.”

Clinton, 524 U.S. at 452 (Kennedy, J., concurring).

The Constitution simply does not contemplate such

“undifferentiated governmental power.” Ass’n of Am.

Railroads, 575 U.S. at 67 (Thomas, J., concurring in

judgment) (cleaned up).

B. Chevron violates

principles.

basic

due

process

Chevron also violates basic principles of due

process.

then-Judge

Gorsuch

observed,

“[t]ransferring the job of saying what the law is from

the judiciary to the executive unsurprisingly invites

the very sort of due process … concerns the framers

knew would arise if the political branches intruded on

judicial functions.” Gutierrez-Brizuela v. Lynch, 834

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

concurring); see also Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187, 1239 (2016) (“Precedents

such as Chevron … require judges to give up their role

as judges and … violate the due process of law.”).

Among other problems, Chevron systematically tips

the scales in the government’s favor, allows agencies

to act as their own judge, and deprives non-agency

parties of fair notice.

To start, Chevron “introduce[s] into judicial

proceedings a ‘systematic bias toward one of the

parties.’” Buffington, 143 S. Ct. at 19 (Gorsuch, J.)

(quoting Hamburger, supra, 1212). But Americans

expect courts to “resolve disputes about their rights

and duties under law without fear or favor to any

party—the Executive Branch included.” Id. at 16

(citing A. Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L. J. 908, 987

(2017)). Indeed, the “minimal rudiment of due

process”

includes

fair

and

impartial

decisionmaker.” Guthrie v. Wis. Emp. Rels. Comm’n,

111 Wis. 2d 447, 453 (1983) (citing Goldberg v.

Kelly, 397 U.S. 254, 271 (1970)).

But Chevron undermines the promise of a neutral

decisionmaker. Under Chevron, judges must abandon

their independent judgment and defer to an agency’s

interpretation of law. That means when judges defer

to these administrative interpretations, they often

simply “adopt[] the interpretation or legal position of

one of the parties.” Hamburger, supra, 1189. And they

must do so as long as the agency’s interpretation is

reasonable, “regardless [of] whether there may be

other reasonable, or even more reasonable, views.”

Serono Lab’ys, Inc. v. Shalala, 158 F.3d 1313, 1321

(D.C. Cir. 1998). That necessarily produces

“systematically biased judgment[s]” in favor of one

party. Hamburger, supra, 1211.

In no other context does a court simply defer to

one of the parties. At least one federal judge has

suggested that such extreme deference may violate

judicial canons requiring independence. See United

States v. Havis, 907 F.3d 439, 451 n.1 (6th Cir. 2018)

(Thapar, J., concurring), rev’d en banc, 927 F.3d 382,

n.1 (6th Cir. 2019) (“[I]f judges are predisposed to

defer when the government is involved, then that precommitment is ‘systemic bias.’ And that bias violates

both the first and third canon of judicial conduct. See

U.S. Jud. Conduct Code, Canon 1 (requiring an

independent judiciary for a just society); Canon 3

(requiring judges to recuse if a judge has a bias in

favor or against a party).”). Instead of recognizing the

judge as an impartial decisionmaker, Chevron

requires the judge to systematically favor one party.

And not just any party. This scheme favors the

federal government—“the most powerful of litigants.”

Buffington, 143 S. Ct. at 19 (Gorsuch, J.). Indeed,

Chevron gives the federal government an unfair

advantage by tipping the scales in its favor. See

Hamburger, supra, 1250. Such deference conflicts

with American courts’ historic commitment to “favor

individual liberty” and to construe certain ambiguities

in law “against the government and with lenity

toward affected persons.” Buffington, 143 S. Ct. at 19

(Gorsuch, J.).

Chevron also undermines due process because it

allows the agency to act as its own judge. “When an

administrative agency interprets and applies the law

in a case to which it is a party, it is to that extent

acting as judge of its own cause.” Tetra Tech EC, Inc.

v. Wis. Dep’t of Revenue, 382 Wis. 2d 496, 555, (2018).

But it is a “basic requirement of due process,”

Buffington, 143 S. Ct. at 19 (Gorsuch, J.), that “[n]o

man is allowed to be a judge in his own cause,” The

Federalist No. 10 (J. Madison). As James Madison

explained, “a body of men are unfit to be both judges

and parties, at the same time,” because a man’s

“interest would certainly bias his judgment, and, not

improbably, corrupt his integrity.” Id.; see also

Williams v. Pennsylvania, 579 U.S. 1, 8-9 (2016). And

“[i]t is entirely unrealistic to expect [an] agency to

function as a ‘fair and impartial decisionmaker’ as it

authoritatively tells the court how to interpret and

apply the law that will decide its case.” Tetra Tech EC,

Inc., 382 Wis. 2d at 556.

Finally, Chevron violates notions of fair notice.

The “central meaning of procedural due process” is the

“right to notice and an opportunity to be heard … at a

meaningful

time

and

meaningful

manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972).

Under a broad reading of Chevron, “[f]air notice gives

way to vast uncertainty.” Buffington, 143 S. Ct. at 20.

(Gorsuch, J.). Because agencies may shift from one

“reasonable” interpretation to another, “individuals

can never be sure of their legal rights and duties.” Id.

This uncertainty makes it difficult for individuals,

especially ordinary Americans, to structure their

personal affairs. They are simply “left to guess what

some executive official might ‘reasonably’ decree the

law to be today, tomorrow, next year, or after the next

election.” Id. And while “‘[e]very relevant actor may

agree’ that the agency’s latest interpretation is not the

best interpretation of the law, each new iteration still

‘carries the force of law.’” Id. (citing Brett M.

Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2151 (2016)). Allowing federal

agencies to shift the meaning of binding laws denies

Americans fair notice.

At bottom, Chevron is incompatible with the

Constitution’s most fundamental safeguards. It is

“contrary to the roles assigned to the separate

branches of government” and “require[s] [judges] at

times to lay aside fairness and [their] own best

judgment and instead bow to the nation’s most

powerful litigant, the government, for no reason other

than that it is the government.” Egan, 851 F.3d at 278

(Jordan, J., concurring in the judgment). The Court

should revisit Chevron and put an end to this

“atextual invention by courts.” Kavanaugh, 129 Harv.

L. Rev. at 2150.

CONCLUSION

For these reasons, the Court should grant the

petition and reverse the decision below.

Respectfully submitted,