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

Supreme Court briefNov 27, 2023

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No. 22-1219

IN THE

Supreme Court of the United States

RELENTLESS, INC., et al.,

Petitioners,

U.S. DEPARTMENT OF COMMERCE, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF AMICI CURIAE FORMER STATE

SUPREME COURT JUSTICES ANDREW W.

GOULD, MARK D. MARTIN, BURLEY B.

MITCHELL, WILLIAM L. WALLER, JR.,

KURTIS T. WILDER; FORMER ARIZONA

COURT OF APPEALS JUDGE PHILIP L.

HALL; AND AMERICAN COMMITMENT

FOUNDATION IN SUPPORT OF

PETITIONERS

DREW C. ENSIGN

Counsel of Record

Kenneth C. Daines

Brennan Bowen

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

15405 John Marshall Hwy

2575 East Camelback Rd.,

Haymarket, VA 20169

Suite 860

(540) 341-8808

Phoenix, AZ 85016

kdaines@holtzmanvogel.com (602) 388-1262

densign@holtzmanvogel.com

bbowen@holtzmanvogel.com

Counsel for Amici Curiae

QUESTIONS PRESENTED

1. Whether the Court should overrule Chevron or at

least clarify that statutory silence concerning

controversial powers expressly but narrowly

granted elsewhere in the statute does not

constitute an ambiguity requiring deference to

the agency.

2. Whether the phrase “necessary and appropriate”

in the MSA augments agency power to force

domestic fishing vessels to contract with and pay

the salaries of federal observers they must carry.

TABLE OF CONTENTS

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

TABLE OF CONTENTS ............................................. ii

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

INTERESTS OF AMICI ............................................. 1

INTRODUCTION & SUMMARY OF THE

ARGUMENT................................................................ 3

ARGUMENT ............................................................... 7

I. The Recent Trend in State Courts Away from

Broad Agency Deference Demonstrates That

Alternatives Are Both Workable and Preferable . 7

II. Consistent with Amici’s Experience in Their

Respective State Courts, Overruling Chevron Will

Help

Restore

the

Judiciary’s

Proper

Constitutional Role. ............................................. 16

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

CASES

Arizona State Legis. v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787 (2015) ................................. 3

Boyer–Campbell Co. v. Fry, 271 Mich. 282, 260

N.W. 165 (1935) .................................................... 11

Buffington v. McDonough, 143 S. Ct. 14 (2022) .. 7, 18

Grass Lake Imp. Bd. v. Department of

Environmental Quality, 316 Mich. App. 356, 891

N.W. 2d. 884 (2016) .............................................. 12

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th

Cir. 2016), .............................................................. 13

Henslee v. Union Planters Nat. Bank & Trust

Co., 335 U.S. 595 (1949) ....................................... 19

HWCC-Tunica, Inc. v. Miss. Dep’t of Revenue, 296

So. 3d 668 (Miss. 2020) ......................................... 14

In re Appeal of North Carolina Sav. & Loan League,

302 N.C. 458 (1981). ............................................. 15

In re Complaint of Rovas Against SBC Michigan,

482 Mich. 90, 754 N.W.2d 259 (2008) .................. 11

King v. Miss. Military Dep’t, 245 So. 3d 404 (Miss.

2018). ............................................................... 12, 13

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

(1803) ..................................................3, 5, 12, 16, 17

Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss.

Div. of Medicaid, 319 So. 3d 1049 (Miss. 2021) ... 14

Miss. State and School Emp. Life and Health Plan

v. KCC, Inc., 108 So. 3d 932 (Miss. 2013) ............ 13

Pereira v. Sessions, 138 S. Ct. 2105 (2018) ............. 21

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015) ... 6

Roberts v. State, 512 P.3d 1007 (Ariz. 2022) ........... 10

Saguaro Healing LLC v. State, 470 P.3d 636 (Ariz.

2020) ...................................................................... 10

Silver v. Pueblo Del Sol Water Co., 423 P.3d 348

(Ariz. 2018) ............................................................ 10

STATUTES

Ariz. Rev. Stat. Ann. § 12-910(F)............................. 10

OTHER AUTHORITIES

A. White, Learning from Laboratories of Liberty, 46

Harvard J. Law & Public Policy 303 (2023)........... 4

C. Green, Deconstructing the Administrative State:

Chevron Debates and the Transformation of

Constitutional Politics, 101 Boston Univ. L. Rev.

619, 703 (2021) ........................................................ 4

C. Sunstein, Interpreting Statutes in the Regulatory

State, 103 Harv. L. Rev. 405 (1989) ...................... 19

D. Ortner, The End of Deference: How States Are

Leading a (Sometimes Quiet) Revolution Against

Administrative Deference Doctrines (March 11,

2020) .................................................................... 8, 9

Ernest A. Young, Executive Preemption, 102 Nw. U.

L. Rev. 869, 889 (2008) ......................................... 19

I. Millhiser, A new Supreme Court case seeks to make

the nine justices even more powerful, Vox (May 2,

2023) ........................................................................ 4

J. Sutton, Who Decides? States as Laboratories of

Constitutional Experimentation 184 (2021). .......... 4

The Federalist No. 10 (C. Rossiter ed. 1961)

(J. Madison) ........................................................... 18

The Federalist No. 47 (C. Rossiter ed. 1961)

(J. Madison) ........................................................... 17

The Federalist No. 78 (C. Rossiter ed. 1961)

(A. Hamilton). ................................................. 17, 20

The Federalist No. 80 (C. Rossiter ed. 1961)

(A. Hamilton) ........................................................ 18

What Happens if the Supreme Court Ends “Chevron

Deference”? NRDC (June 21, 2023) .................... 4, 5

CONSTITUTIONAL PROVISIONS

Miss. Const. art. 1, § 2 .............................................. 13

U.S. Const. art I. §1. ................................................. 20

U.S. Const. Art. III § 1 ................................................ 7

INTEREST OF AMICI1

Former Arizona Supreme Court Justice Andrew

W. Gould, former Chief Justices of the North

Carolina Supreme Court Mark D. Martin and Burley

B. Mitchell, former Chief Justice of the Mississippi

Supreme Court William L. Waller, Jr., former

Michigan Supreme Court Justice Kurtis T. Wilder,

former Arizona Court of Appeals Judge Philip L.

Hall, and American Commitment Foundation

respectfully submit this brief as amici curiae in

support of the Petitioner.

Amici include former state supreme court justices

and a former state court of appeals judge. Amici each

have experience in their respective states of applying

standards of non-deferential review of agency

interpretations of state statutory law. As this Court

considers overturning Chevron at the federal level,

Amici offer their unique perspective on how such an

approach is both workable and preferable as

evidenced by their experience as justices and judges

in their respective state courts, bolstering the case

for adopting the same approach at the federal level.

In this capacity, Amici have witnessed the

traditional role and function of the judiciary upheld,

and in some cases restored, in the administrative

law arena, with statutory law faithfully interpreted

in accordance with its terms.

1 In accordance with Rule 37.6, counsel affirms that no counsel

for any party authored this brief in whole or in part. No person

or entity other than Amici and the counsel below contributed

the costs associated with the preparation and submission of

this brief.

Amici also include a non-profit organization,

American Commitment Foundation (“American

Commitment”), whose stated mission is to help

restore and protect the American commitment to

free markets, economic growth, constitutionally

limited government, property rights and individual

freedom. Consequently, American Commitment has

a significant interest in preserving the federal

separation of powers and preventing overreach by

federal agencies.

Because Chevron deference directly undermines

the Constitution’s structure and scheme that the

Framers put in place to preserve liberty and guard

against federal abuse of power, and is frequently

used to expand agencies’ regulatory authority

beyond what the text of statutes fairly authorizes,

American Commitment has a particular interest in

whether Chevron is overruled.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The core issue presented here is one that state

court judges have considered extensively over the

last decade. Many States that previously recognized

state-law analogs to Chevron deference have

abolished those counterparts, either by statute or

judicial decisions. Indeed, the clear trend in the

States towards Chevron-like deference is one of

elimination rather than entrenchment.

Amici here had front-row seats to these changes:

they include former state justices and judges that

served during those abolitions. Amici submit this

brief to provide their unique experiences from these

important legal innovations. Amici offer two

overarching points. First, overruling Chevron will

not produce the significant disruptions that the

United States and its alarmist amici postulate. No

such disruptions occurred in Amici’s states. Second,

overruling Chevron will restore the federal judiciary

to its proper role of resolving what federal statutes

mean. After all, “[i]t is emphatically the province

and duty of the judicial department to say what the

law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803) (emphasis added).

Among the myriad benefits of our federal system

of dual sovereigns is the opportunity for States to

serve as the “‘laboratories for devising solutions to

difficult legal problems.’” Arizona State Legis. v.

Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 817

(2015) (citation omitted). A corresponding benefit is

that the federal government (including the judiciary)

can benefit from the lessons and experiences of the

States’ experimentation.2

So it is here. Many prognosticators have liberally

predicted grave—even cataclysmic3—consequences if

this Court were to overrule Chevron. In their view,

having federal courts determine what federal

As Sixth Circuit Judge Jeffrey Sutton put it, “state and

federal courts may borrow historical, practical, and other useful

insights from each other,” including “how best to construe

generally phrased, sometimes implied, limitations on the

powers of each branch.” J. Sutton, Who Decides? States as

Laboratories of Constitutional Experimentation 184 (2021). In

the context of administrative law then, state courts operate as

“laboratories of administration” throughout the nation for this

Court’s observation and learning. See A. White, Learning from

Laboratories of Liberty, 46 Harvard J. Law & Public Policy 303

(2023).

See, e.g., Brief of American Cancer Society, et al., Loper

Bright Enterp. v. Raimondo, No. 22-451, at 6 (contending that

overruling Chevron would cause “disruption to the health care

system… [that] would be enormous” (emphasis added)); C.

Green, Deconstructing the Administrative State: Chevron

Debates and the Transformation of Constitutional Politics, 101

Boston Univ. L. Rev. 619, 703 (2021) (warning that efforts to

overturn Chevron could culminate in the “decimat[ion of]

federal institutions and displace[ment of] American democracy,

while also undermining the credibility of constitutional

decision-making itself” (emphasis added)); J. Turrentine, What

Happens if the Supreme Court Ends “Chevron Deference”?

NRDC (June 21, 2023) (“[T]he Supreme Court could reopen the

door for federal judges to decide how executive-branch agencies

should go about their daily business” including deciding “rules

about equipment usage” or “the need for periodic employee rest

breaks”); I. Millhiser, A new Supreme Court case seeks to make

the nine justices even more powerful, Vox (May 2, 2023)

(warning that overruling Chevron could “introduce chaos into

the entire federal government” where “[n]o one will know what

the rules are until judges with no expertise on the relevant

subject matter weigh in”).

statutes mean without agencies’ thumbs (and

frequently anvils) on the scales would “usher in a

new era marked by legal and administrative chaos.”

J. Turrentine, What Happens if the Supreme Court

Ends “Chevron Deference”? NRDC (June 21, 2023),

https://www.nrdc.org/stories/what-happens-ifsupreme-court-ends-chevron-deference. The United

States is only modestly more restrained, warning

that an “abuse of judicial power” may result from

courts resolving statutory ambiguities based on “‘the

judges’ personal policy preferences’” without the

opportunity for democratic accountability. Brief for

Respondents, Loper Bright Enterp. v. Raimondo, No.

22-451, at 19.

The experiences of the States that have abolished

Chevron-like deference refute these doom-and-gloom

predictions. These States have not encountered such

conjectured catastrophes. Indeed, the putative

disruptions are so minor and insignificant that they

are often even difficult to detect. For example, after

Arizona abolished Chevron-like deference in 2018,

the Arizona Supreme Court has only even mentioned

that elimination three times.

While disruptions of any magnitude were hard to

discern, the resulting benefits were readily

perceptible to Amici. Abolishing Chevron analogs has

spurred something of a judicial renaissance, with

state courts reclaiming their proper role of “say[ing]

what the law is.” Marbury, 5 U.S. at 177. In Amici’s

experience, the results have been overwhelmingly

positive.

That is particularly so because Chevron and

Chevron-like deference rests on a deep anomaly that

upends separate-of-powers principles. The core

competency—and principal duty—of the federal

Judiciary is to decide what the proper interpretation

of federal law is. Indeed, the Founders specifically

created an independent judiciary with life tenure

precisely so that legal disputes could be resolved by

impartial, non-elected officials. See, e.g., Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015)

(Thomas, J., concurring) (Article III “requires a court

to exercise its independent judgment in interpreting

and expounding upon the laws.”).

Chevron, however, erroneously abdicated the

Judiciary’s

constitutional

responsibility

outsourcing it to the elected Executive and deferring

to its interpretations of ambiguous statutes. In so

doing, it empowers the Executive to usurp the

powers of Congress too. This case provides a

powerful example of just that: unwilling to ask

Congress to exercise the legislative power of the

purse to impose user fees and spend the resulting

funds, Respondents arrogated that power to

themselves without any “authorization” beyond mere

Congressional silence. And hamstrung by Chevron,

the First and D.C. Circuits have upheld that

usurpation.

None of this would fly in the States that have

abolished Chevron deference. There, legislative

silence is not carte blanche for agencies to impose

their will upon—or stick their fingers into the

pockets of—regulated parties. The courts of all of

these States would review the lawfulness of the

mandates like those presented here de novo, and

would have had little difficulty finding them

wanting. But Chevron has enfeebled federal courts’

role of checking extravagant assertions of agency

authority, and permitted agencies to run roughshod

over limitations on their powers. Based on their

experience in their respective States, Amici are

confident that overruling Chevron will restore the

federal courts to their proper role of exercising the

“judicial Power of the United States,” U.S. Const.

Art. III § 1, rather than delegating that power to the

elected Executive.

Given Chevron’s dubious foundations, it is

unsurprising that “this Court has not invoked the

broad reading of Chevron in many years.” Buffington

v. McDonough, 143 S. Ct. 14, 21 (2022) (Gorsuch, J.,

dissenting from denial of certiorari). And just as

many States have relegated Chevron-like deference

to the ash heap of history, this Court should now

give Chevron a proper burial with a “tombstone no

one can miss.” Id. at 22.

ARGUMENT

The Recent Trend in State Courts Away

from

Broad

Agency

Deference

Demonstrates That Alternatives Are Both

Workable and Preferable.

Both the United States and its amici have

advanced overwrought predictions of a “convulsive

shock to the legal system” that will result from

overruling Chevron. See, e.g., Loper Bright, Resp. Br.

at 10. This includes their contention that “if Chevron

were overruled, the federal courts would inevitably

be required to resolve policy questions properly left

to the ‘political branch[es],’” id. at 10 (citation

omitted), which would in turn “erode [the]

distinction” between the judicial process and politics,

id. at 37. “[R]eplacing Chevron with a regime of de

novo review,” they insist, would also “exacerbate the

potential for inconsistent results,” id. at 8, and

“‘render the binding effect of agency rules

unpredictable,’” id. at 18 (quoting City of Arlington,

569 U.S. at 307). They even go so far as to warn of

the “abuse of judicial power” that may result from

courts resolving statutory ambiguities based on “‘the

judges’ personal policy preferences’” without the

opportunity for democratic accountability. Id. at 19.

Contrary to these forebodings, the experience of

States—including the states where Amici have

served as state supreme court justices and as a court

of appeals judge—refutes these predictions.

Requiring de novo consideration of delegated

authority has caused not any “convulsive shock to

the legal system.” Loper Bright, Resp. Br. at 10. Nor

has it resulted in any kind of excessive or

unwarranted disruption that the United States is so

confidently predicting. Instead, each of these States

has experienced the opposite: abolishing deference

has simply put the ball of statutory interpretation

back in the “court” where it belongs.

Evidence is abundant and ever-growing that

ending Chevron-like deference is eminently workable

in practice. In fact, a recent survey of States

demonstrates 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.” D. 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

(hereinafter “The End of Deference”).

Indeed, ten states 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. Only Skidmore-type deference persists in three

additional states (North Carolina, Virginia, and

West Virginia), while in five other states there is

only Auer-type deference for regulations, but no

Chevron-like deference for statutory interpretations

(California, Louisiana, Minnesota, Nebraska, and

Tennessee). Id. at 72.

Meanwhile, “no states … have gotten appreciably

more deferential in the past 20 years.” Id. at 3 n.4,

68–69. By another recent survey’s count, the number

of States applying either no deference at all, or a

lesser form of deference, numbers 36 in all—

outnumbering States with the Chevron-type

deference standards by more than two-to-one. L.

Phillips, Chevron in the States? Not So Much, 89

Miss. L. J. 313, 364 (2020). This “quiet revolution”

was “well underway in courts throughout the nation”

three years ago, which underscores how minimally

disruptive overruling Chevron would be. See The

End of Deference at 69. And the fact that the trend

is overwhelmingly against Chevron-like deference

strongly suggests federal courts could follow the lead

of the States without dire consequences that the

United States predicts.

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

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

No discernible negative consequences have yet

arisen. Indeed, in the ensuing half decade after the

legislature abolished agency deference, the Arizona

Supreme Court has only even mentioned the

abolition of deference a grand total of three times.

Roberts v. State, 512 P.3d 1007, 1018 (Ariz. 2022);

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 minor: 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. While Michigan has “never

adopted Chevron for review of state administrative

agencies’ statutory interpretations,” it has expressly

rejected agency deference under a standard first

enunciated as far back as 1935. In re Complaint of

Rovas Against SBC Michigan, 482 Mich. 90, 111, 754

N.W.2d 259, 272 (2008) (citing Boyer–Campbell Co.

v. Fry, 271 Mich. 282, 296-97, 260 N.W. 165 (1935)).

In refusing to import the federal Chevron regime

into Michigan’s jurisprudence in a 2008 decision, the

Michigan Supreme Court explained that “the

unyielding

deference

agency

statutory

construction required by Chevron conflicts with this

state’s administrative law jurisprudence” and

“separation of powers principles ... by compelling

delegation of the judiciary’s constitutional authority

to construe statutes to another branch of

government.” Id. A key reason Michigan has never

adopted Chevron is that its vagaries offer no “clear

road map” when reviewing administrative decisions,

making it “very difficult to apply”. Id.

Instead, Michigan has long accorded “respectful

consideration” to agencies’ statutory construction,

meaning that such constructions can be overruled if

there are “cogent reasons” for doing so. Id. at 103

(quoting Boyer–Campbell Co., 271 Mich. at 296-97).

Consequently, agencies’ interpretations “are not

binding on [Michigan] courts”; rather, they are

simply to be “taken note of by the courts as an aiding

element to be given weight in construing such laws.”

Id.

Expounding on this standard in a subsequent

decision, Justice Wilder (then as Judge Wilder of the

Michigan Court of Appeals) explained that

“‘[r]espectful consideration” “is not akin to

‘deference.’” Grass Lake Imp. Bd. v. Department of

Environmental Quality, 316 Mich. App. 356, 363,

891 N.W. 2d. 884, 888 (2016) (quoting Rovas, 482

Mich at 108.). While an agency’s position can be a

“helpful aid in construing a statutory provision with

a ‘doubtful or obscure’ meaning,” at the end of the

day it is Michigan courts that bear responsibility “for

finally deciding whether an agency’s interpretation

is erroneous under traditional rules of statutory

construction.” Id. (quoting Rovas, 482 Mich. at 103,

108).

In other words, although Michigan courts accord

respect and due consideration to agencies’ positions

on the meaning of statutes, and find such

constructions to be helpful criteria when construing

vague statutes, they are by no means the

predominant or prevailing criteria; in the end,

responsibility for interpreting the law rests with the

courts. As it should. Marbury, 5 U.S. at 177. This

“respectful consideration” standard has now proven

effective and workable in Michigan for nearly a

century, with no signs that the state supreme court

has any inclination to revisit that long-standing

precedent.

Mississippi has been even more explicit in its

rejection of Chevron deference. In 2018, the

Mississippi Supreme Court expressly “abandon[ed]

the old standard of review giving deference to agency

interpretations of statutes.” King v. Miss. Military

Dep’t, 245 So. 3d 404, 408 (¶12) (Miss. 2018). In

reversing its past Chevron-equivalent precedent, the

court continued its trend in recent years of backing

away from showing “great deference” to agency

interpretations because “‘the ultimate authority and

responsibility to interpret the law’” rests with the

judiciary. Id. at 407 (¶9) (quoting Miss. State and

School Emp. Life and Health Plan v. KCC, Inc., 108

So. 3d 932, 939 (¶20) (Miss. 2013)).

Notably, the Mississippi Supreme Court also held

that agency deference itself contravenes the

Mississippi Constitution’s strict separation of

powers. That constitution provides that no branch of

government “shall exercise any power properly

belonging to either of the others.” Miss. Const. art. 1,

§ 2. Accordingly, the court held that “when deference

is given to an agency interpretation, we share the

exercise of the power of statutory interpretation with

another branch in violation of Article 1, Section 2.”

King, 245 So. 3d at 408 (¶11); see also id. (¶12)

(indicating that by eliminating deference the court

was “stepp[ing] fully into the role” that the state

constitution provides “for the courts and the courts

alone, to interpret statutes”).

In so holding, it found persuasive the reasoning

of then-Judge Gorsuch, who had written in an

opinion concurring with his own majority in

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir.

2016), that, “absent judicial deference to

administrative agencies’ interpretation of statutes,

‘[c]ourts would then fulfill their duty to exercise their

independent judgment about what the law is.’” King,

245 So. 3d at 408 (¶12) (quoting Gutierrez-Brizuela,

834 F.3d at 1158 (Gorsuch, J., concurring)); see also

id. at 407 (¶9) (identifying the contradiction inherent

in “claiming to give deference while simultaneously

claiming that the Court bears the ultimate

responsibility to interpret statutes”).

Mississippi did not stop there. In response to the

legislature’s imposition of a deferential standard on

Mississippi courts, the state supreme court went a

step further in a 2020 decision holding that even

legislative-prescribed deference was unconstitutional

because it violated the state constitution’s separation

of powers doctrine. HWCC-Tunica, Inc. v. Miss. Dep’t

of Revenue, 296 So. 3d 668, 677 (¶34) (Miss. 2020)

(“Interpreting statutes is reserved exclusively for

courts.” (emphasis added)).4 In so holding, the court

noted that Mississippi courts nonetheless retained

the flexibility to look to regulations for information

and guidance in interpreting vague statutes under a

Skidmore-like analysis while still preserving the

core judicial function of independently determining

the law. See HWCC-Tunica, 296 So. 3d at 677 (¶36).

Similarly, North Carolina has long declined to

accord

significant

deference

agency

interpretations of statutes, applying instead a

Skidmore-like standard where the weight that courts

will accord to agency interpretations depends upon

the thoroughness of the agency’s consideration in a

particular case, the validity of its reasoning, and its

Continuing its movement away from deference, in June 2020

the Mississippi Supreme Court again overruled past precedent

and ruled that deference to agency interpretations of rules or

regulations (Auer-like deference) also violated the Mississippi

Constitution. Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss.

Div. of Medicaid, 319 So. 3d 1049, 1055 (¶18) (Miss. 2021). In

adopting a new de novo standard, the court held that the same

reasoning for ending deference to agencies’ statutory

constructions applied to agency regulations: “when the

interpretation of a regulation comes into a third-branch

courtroom,” such deference constitutes “the ceding of judicial

authority to the executive branch.” Id. at 1054 (¶17).

persuasive power. In re Appeal of North Carolina

Sav. & Loan League, 302 N.C. 458, 466 (1981).

Because agency interpretations of statutes are “not

binding,” a North Carolina court “may freely

substitute its judgment for that of the agency and

employ de novo review.” Id. at 465-66. Indeed, many

States that have overturned Chevron-like deference

similarly apply a similar type of Skidmore-like

deference where their courts evaluate the

persuasiveness of the agency’s analysis in

determining how much weight to give its

interpretation. See The End of Deference at 24 n.85.

Amici have served in the judiciaries of Arizona,

Michigan, Mississippi, and North Carolina and have

been directly involved in applying these standards in

administrative law cases. For Michigan and North

Carolina’s jurisprudence, Chevron deference is not

the

standard

for

reviewing

administrative

interpretations, and has not been for decades. In

Arizona and Mississippi, earlier Chevron-like

deference has been more recently overturned by

superseding

statute

state

constitutional

interpretation. In each of these four states,

regardless of the circumstance and timing of when

Chevron-like deference was rejected, the sky has not

fallen—the courts by and large respect the boundary

between

judicial

review

and

politics,

notwithstanding any alarmist predictions to the

contrary.

Contrary to Respondents’ and their Amici’s dire

predictions of seismic disruptions, the reality on the

ground is that courts remain capable of using

ordinary tools of statutory construction to fulfill

their judicial duty to faithfully interpret the law

even when agencies are involved. Judiciaries

exercising judicial power independent from the

Executive is simply not the calamity that the

Executive believes it to be. That much is made plain

by the rapidly growing “quiet revolution” away from

Chevron-like deference, where today most States

have adopted either a standard of no deference or a

weakened form of deference. See Chevron in the

States at 364. There is every reason to believe that

any revolution in the federal system occasioned by

overruling Chevron would be equally quiet.

II.

Consistent with Amici’s Experience in

Their Respective State Courts, Overruling

Chevron Will Help Restore the Judiciary’s

Proper Constitutional Role.

In this Court’s most formative decision, Chief

Justice Marshall pronounced that “[i]t is

emphatically the province and duty of the Judicial

Department to say what the law is.” Marbury, 5 U.S.

at 177. Ensuring that this responsibility continues to

lie with the Judiciary is critical to preserving the

carefully crafted and delicate scheme of separation of

powers under the Constitution. Until Chevron, this

Court had recognized no major carveout to Article

III’s investment of judicial power in the Judiciary

when it came to reviewing executive branch

agencies’ interpretations of law. In the wake of

Chevron, however, this Court’s administrative law

jurisprudence has lost its way, outsourcing the

judiciary’s core responsibility to a political branch of

government.

When crafting the government’s separation of

powers structure, the Framers sought to protect

against usurpation and aggregation of power in a

single branch. See The Federalist No. 47 (C. Rossiter

ed. 1961) (J. Madison) (“[T]he accumulation of all

powers, legislative, executive, and judicial, in the

same hands ... may justly be pronounced the very

definition of tyranny.”). Accordingly, the Framers

intentionally ensured that the Judiciary would be

able to exercise meaningful judicial review of the

lawfulness of the Executive’s actions, rather than

being bound by the latter’s self-serving assertions

that its actions were legal.

That (proper) understanding of the Constitution

was preserved for nearly 200 years until Chevron. As

Hamilton explained, “[s]o long as the judiciary

remains truly distinct from both the legislature and

the Executive” “the general liberty of the people can

never be endangered from that quarter.” The

Federalist No. 78 (C. Rossiter ed. 1961) (A.

Hamilton). To accomplish this distinctness, the

judicial branch was given a discrete task: “The

interpretation of the laws is the proper and peculiar

province of the courts.... It, therefore, belongs to them

to ascertain ... the meaning of any particular act

proceeding from the legislative body.” Id. (emphasis

added). By creating a neutral and independent

Judiciary, the Constitution thus insulates the courts

from the political considerations that pervade the

political branches, making the courts instead

answerable to the strictures and demands of the law.

Chevron’s original sin was to turn these

fundamental principles on their head and abdicate

the Judiciary’s responsibility to “say what the law

is.” Marbury, 5 U.S. at 177. As Justice Gorsuch

recently admonished, under a broad reading of

Chevron, “[r]ather than provide individuals with the

best understanding of their rights and duties under

the law a neutral magistrate can muster, [the

federal

courts]

outsource

our

interpretive

responsibilities. Rather than say what the law is, we

tell those who come before us to go ask a

bureaucrat.” Buffington, 143 S. Ct. at 18-19

(Gorsuch, J., dissenting from the denial of

certiorari).

And by effectively delegating the judicial power to

executive branch officials whenever a statute is

ambiguous or silent, those officials are permitted “to

judge the scope of their own powers and duties,” id.,

effectively entrusting an agency to be judge of its

own case and offending basic requirements of due

process as a result, see id. The Framers were acutely

aware of the tendency of individuals—and

institutions—to favor their own interests. See The

Federalist No. 10 (C. Rossiter ed. 1961) (J. Madison)

(“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 (C. Rossiter ed.

1961) (A. Hamilton) (“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.”). And while

they designed a system with separation of powers

specifically to check such impulses, Chevron vitiates

those protections.

In particular, 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 on the

proposition that foxes should not guard henhouses.”).

The good news is that it is not too late for this

Court to correct course. “Wisdom too often never

comes, and so one ought not to reject it merely

because it comes late.” Henslee v. Union Planters

Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949)

(Frankfurter, J., dissenting). And as Amici’s

experience as judges and justices in their respective

state courts demonstrates, such an amply warranted

course correction will produce substantial benefits

and minimal disruptions. In each of these states

(and for many others identified above), avoiding,

narrowing, or in recent cases even overturning

longstanding Chevron-type deference has been

effective at restoring the judiciary to its proper role

and function under the state constitutions. See supra

§ I. This Court should follow this collective wisdom.

In contrast, the Executive’s grave, self-interested

prediction that overruling Chevron will result in

“abuse of the judicial power” where statutory

ambiguities will be resolved based on personal policy

preferences rather than sound principles and canons

of statutory construction, see Loper Bright, Resp. Br.

at 19, is unfounded. As an initial matter, the United

States’ warning seems more of an apt description of

the mischief that the Executive is currently engaged

in, rather than a convincing prediction of the results

that overruling Chevron would produce.

In any event, Amici’s experiences bely the United

States’ prediction. Amici respectfully submit that

impartial judges are better equipped than agency

personnel to faithfully ascertain the meaning of laws

passed by the legislature. This accords with the

Framers’ intuition that interpreting law is “the

proper and peculiar province of the courts.” The

Federalist No. 78 (C. Rossiter ed. 1961) (A.

Hamilton).

When the Judiciary interprets the meaning of

statutes in accordance with the statutory meaning

as enacted by the legislature, responsibility for

changing or clarifying the law falls more effectively

to the truly accountable branch rather than an

unaccountable

bureaucracy.

Such

legislative

accountability in turn protects liberty, ensuring that

the people remain sovereign over those who govern

them. And it mitigates the perverse incentive for

legislators to enact intentionally vague laws and

thereby evade their legislative responsibility by

outsourcing

policymaking

authority

the

bureaucracy.5 Instead, in a post-Chevron world,

Congress’s incentive will be to adopt statutes that

are sufficiently clear and specific that the Courts can

then interpret as intended.

This case now affords an important opportunity

to correct these errors by ensuring that doctrines of

agency deference properly preserve the judicial role

and the separation of powers. Amici respectfully

This is an important reason that Chevron-like deference to

executive agencies similarly undermines Article I’s vesting of

“[a]ll legislative Powers” in Congress, enabling Congress to

abdicate its constitutional duties. U.S. Const. art I. §1.

urge this Court to either overturn Chevron entirely,

or at a minimum scale it back closer to de novo

consideration, to help restore the Framers’ vision of

America’s constitutional framework.

CONCLUSION

As Justice Kennedy explained, “[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.” Pereira v. Sessions, 138 S. Ct. 2105, 2121

(2018) (Kennedy, J., concurring). Because Chevron

deference contravenes these principles, Amici agree

that it is “necessary and appropriate to reconsider ...

the premises that underlie Chevron and how courts

have implemented that decision.” Id.

As clear trends in the “laboratories of

administration”

throughout

the

nation

are

demonstrating, overturning Chevron is not only

feasible, but desirable. In States that have

altogether eliminated Chevron-like deference (or

declined to adopt it in the first place), none of the

cynics’ catastrophic predictions have transpired.

Instead, application of traditional tools of

construction upholds and, if necessary, restores the

judicial role in administrative law adjudication.

Doing so at the federal level will do the same,

helping to protect liberty by adhering more carefully

to the Framers’ intended separation-of-powers

framework.

The Court should reverse the judgment of the

First Circuit below and explicitly overrule Chevron.

Dated: November 27, 2023

Respectfully submitted,

Drew C. Ensign