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

No. 22-1219

In the Supreme Court of the United States

RELENTLESS, INC., ET AL.,

Petitioners,

v.

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 HISTORIANS GAUTHAM

RAO, RICHARD R. JOHN, AND JANE MANNERS

IN SUPPORT OF RESPONDENTS

THOMAS P. WOLF

Counsel of Record

LAUREN E. MILLER

SAMUEL R. BREIDBART

BRENNAN CENTER FOR

JUSTICE AT NYU

SCHOOL OF LAW

120 Broadway, Ste 1750

New York, NY 10271

(646) 292-8310

wolft@

brennan.law.nyu.edu

i

TABLE OF CONTENTS

TABLE OF CONTENTS ..............................................i

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT................................................................ 6

I.

Judicial Deference to Agency Action is an

Enduring Feature of American Law. ............... 6

A. Constitutional review of agency

action was sporadic and unusual

throughout the nineteenth century. .......... 8

B. Judicial relief from agency decisionmaking during the nineteenth

century was confined to a few

narrowly circumscribed causes of

action with limited reach. ........................ 11

C. Early federal administrators

routinely exercised discretion on a

large volume of critical matters with

minimal judicial oversight. ...................... 14

D. Judicial deference to agency decisionmaking persisted into the twentieth

century, continuing even past

Chevron. ................................................... 19

E. Reverting to nineteenth-century

judicial practice would introduce a

ii

host of problems—including for

Petitioners’ appeals. ................................. 21

II. The Founding Generation Licensed Mixing

Powers among the Three Branches of the

Federal Government. ...................................... 23

CONCLUSION .......................................................... 34

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. State Legis. v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) ................................................ 4

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................ 4

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 12

Mistretta v. United States,

488 U.S. 361 (1989) ................................................ 4

NLRB v. Noel Canning,

573 U.S. 513 (2014) ............................................ 3, 4

Pocket Veto Case,

279 U.S. 655 (1929) ................................................ 3

Smiley v. Holm,

285 U.S. 355 (1932) ................................................ 3

Stuart v. Laird,

5 U.S. (1 Cranch) 299 (1803) ............................. 3, 4

United States v. Vowell,

9 U.S. (5 Cranch) 368 (1809) ............................... 21

iv

Constitutional Provisions

Articles of Confederation of 1781:

art. IX ................................................................... 26

U.S. Const.:

art. I, § 7, cl. 2 ...................................................... 27

art. III, §§ 1-2 ....................................................... 27

Other Authorities

Gregory Ablavsky, Administrative

Constitutionalism and the Northwest

Ordinance, 167 U. Pa. L. Rev. 1631

(2019) .......................................................... 9, 10, 26

Gregory Ablavsky, Beyond the Indian

Commerce Clause, 124 Yale L.J.

1012 (2015) ........................................................... 10

Gregory Ablavsky, Federal Ground:

Governing Property and Violence in

the First U.S. Territories (2021) ............................ 9

Gregory Ablavsky, Getting Public

Rights Wrong: The Lost History of

the Private Land Claims, 74 Stan. L.

Rev. 277 (2022) ..................................................... 32

v

Willi Paul Adams, The First American

Constitutions: Republican Ideology

and the Making of the State

Constitutions in the Revolutionary

Era (Rita & Robert Kimber trans.,

1980) ..................................................................... 31

“An American Citizen” [Tench Coxe] I,

(Philadelphia) Independent

Gazetteer (Sept. 26, 1787), reprinted

in 1 The Debate on the Constitution:

Federalist and Antifederalist

Speeches, Articles, and Letters

During the Struggle over Ratification

20 (Bernard Bailyn ed., 1993) ............................. 29

Nicholas Bagley, The Puzzling

Presumption of Reviewability, 127

Harv. L. Rev. 1285 (2014) ................... 11-14, 19, 22

Brian Balogh, A Government Out of

Sight: The Mystery of National

Authority in Nineteenth Century

America (2009) ..................................................... 16

Winston Bowman, The Indefinite

Article: Historicizing the Judicial

Branch, in Approaches to Federal

Judicial History 9 (Gautham Rao et

al. eds., 2020)........................................................ 14

Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which

Rest Upon the Legislative Power of

the States of the American Union

(7th ed. 1903)........................................................ 10

vi

2 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan

Elliot ed., 1881) .................................................... 29

The Federalist No. 47 (James Madison)

(Clinton Rossiter ed., 1961) ........................... 30, 31

Martin S. Flaherty, The Most

Dangerous Branch, 105 Yale L.J.

1725 (1996) ................................... 24, 25, 27, 28, 30

Jonathan Gienapp, The Second

Creation: Fixing the American

Constitution in the Founding Era

(2018) .................................................................... 27

Richard R. John, Spreading the News:

The American Postal System from

Franklin to Morse (1995) ..................................... 16

32 Journals of the Continental Congress

1774-1789 (Roscoe R. Hill, ed., 1936) .................. 26

Letter by An Officer of the Late

Continental Army, Independent

Gazetteer (Nov. 6, 1787), reprinted

in 3 The Complete Anti-Federalist 91

(Herbert J. Storing ed., 1998) ........................ 28, 29

Letter from James Madison to Thomas

Jefferson (Oct. 24, 1787), in 12 The

Papers of Thomas Jefferson: August

1787 to March 1788, 270 (Julian P.

Boyd ed., 1955); .................................................... 28

vii

Sophia Z. Lee, Our Administered

Constitution: Administrative

Constitutionalism from the Founding

to the Present, 167 U. Pa. L. Rev.

1699 (2019) ............................................ 8-11, 13, 16

Joshua C. Macey & Brian M.

Richardson, Checks, Not Balances,

101 Tex. L. Rev. 89 (2022) ........................24, 27-29

John F. Manning, Separation of Powers

as Ordinary Interpretation, 124

Harv. L. Rev. 1939 (2011) .........................25-27, 30

Jerry L. Mashaw, Creating the

Administrative Constitution: The

Lost One Hundred Years of American

Administrative Law (2012) ...7, 9, 11-13, 16, 18-20,

22, 31-33

Jerry L. Mashaw, Federal

Administration and Administrative

Law in the Gilded Age, 119 Yale L.J.

1362 (2010) ........................................................... 11

Forrest McDonald, Novus Ordo

Seclorum: The Intellectual Origins of

the Constitution (1985) ........................................ 27

Thomas W. Merrill, Article III, Agency

Adjudication, and the Origins of the

Appellate Review Model of

Administrative Law, 111 Colum. L.

Rev. 939 (2011) ................................. 7, 8, 12, 20, 22

viii

Thomas W. Merrill, Judicial Deference

to Executive Precedent, 101 Yale L.J.

969 (1992) ....................................................... 20, 21

Julian Davis Mortenson & Nicholas

Bagley, Delegation at the Founding,

121 Colum. L. Rev. 277 (2021)....................... 15, 28

William J. Novak, The Myth of the

“Weak” American State, 113 Am.

Hist. Rev. 752 (2008)............................................ 16

Peter S. Onuf, The Origins of the

Federal Republic: Jurisdictional

Controversies in the United States

1775-1787 (1983) .................................................. 26

Nicholas R. Parrillo, A Critical

Assessment of the Originalist Case

Administrative Regulatory Power:

New Evidence from the Federal Tax

on Private Real Estate in the 1790s,

130 Yale L.J. 1288 (2021) .............................. 16, 18

Nicholas R. Parrillo, Against the Profit

Motive: The Salary Revolution in

American Government, 1780-1940

(2013) ................................................... 15, 17-19, 33

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic,

85 N.Y.U. L. Rev. 1862, 1866-70,

1889-93 (2010) ..................................................... 13

ix

Gautham Rao, Administering

Entitlement: Governance, Public

Health Care, and the Early American

State, 37 Law & Soc. Inquiry 627

(2012) .................................................................... 18

Gautham Rao, National Duties: Custom

Houses and the Making of the

American State (2016).....................................15-17

Stephen J. Rockwell, Indian Affairs and

the Administrative State in the

Nineteenth Century (2010) ............................. 10, 16

Malcolm J. Rohrbough, The Land Office

Business: The Settlement and

Administration of American Public

Lands, 1789-1837 (1968) ..................................... 31

Jed Handelsman Shugerman, The

Legitimacy of Administrative Law,

50 Tulsa L. Rev. 301 (2015) ............................. 7, 31

12 U.S. Citizenship and Immigr. Servs.,

Policy Manual. ..................................................... 33

M.J.C. Vile, Constitutionalism and the

Separation of Powers (1967) .................... 25, 27, 28

Gordon S. Wood, The Creation of the

American Republic, 1776-1787

(1969) .............................................................. 24, 25

1

INTEREST OF AMICI CURIAE

Amici curiae are Professor Gautham Rao,

Professor Richard R. John, and Professor Jane

Manners. 1

Gautham Rao is Associate Professor in the

Department of History at American University. He is

the author of National Duties: Custom Houses and the

Making of the American State (2016) and has

published numerous scholarly articles and book

chapters on the early federal government. Since 2017,

Professor Rao has served as the Editor of Law and

History Review, the country’s leading scholarly

journal of legal history.

Richard R. John is Professor of History and

Communications at Columbia University. His

publications include Spreading the News: The

American Postal System from Franklin to Morse

(1995) and Network Nation: Inventing American

Telecommunications (2010), in addition to many

edited books and essays.

Jane Manners is Assistant Professor at Beasley

School of Law, Temple University. She has published

widely on matters of history and law, including recent

articles with the Columbia Law Review and the

Fordham Law Review.

1 No counsel for any party authored this brief in whole or in part,

and no entity or person aside from amici and their counsel made

any monetary contribution toward the preparation or submission

of this brief. Amici’s institutional affiliations are for

identification purposes only. This brief does not purport to

convey the position of the New York University School of Law.

2

Amici have devoted their academic careers to the

study of American legal and political history,

including the historical development of American

administrative law and practice. Amici respectfully

submit that the views they express here will assist the

Court by identifying material factual errors in the

historical accounts Petitioners offer the Court.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Over two-and-a-half centuries, the federal

government has evolved to respond to the changing

needs of our modern society. This evolution has

produced a robust administrative state that has

created regulations to support and protect our

economy, businesses, environment, and communities.

In seeking to curb these regulations and shrink the

administrative state, Petitioners and their amici urge

this Court to reject Chevron deference. 2 They claim

that doing so would simply revert the federal

government to the early American norm, when powers

were categorically separated among the three

branches—as the Framers purportedly commanded—

and the federal courts were a strong and pervasive

check on administrative action.

2 This Court has noted that amicus curiae briefs filed in Loper

Bright Enterprises v. Raimondo, No. 22-451, will be considered

in Relentless, Inc. v. Department of Commerce, No. 22-1219

(Relentless Dkt. Entry of Oct. 27, 2023). And the Relentless

Petitioners have endorsed in full the arguments of the Loper

Bright Petitioners. See Relentless Pet’rs’ Br. 2. Amici thus

address arguments raised by both sets of Petitioners and their

respective amici.

3

Petitioners’ account of early American history is

riddled with errors and omissions that obscure a

fundamental point: The system of government they

present in their briefs simply did not exist.

Nineteenth-century federal courts subjected federal

agencies to minimal oversight. This fact—combined

with the comparatively large volume of early agency

action—produced recurrent judicial deference to

agency legal interpretations as a matter of course.

Meanwhile, the Framers and early Congresses were

aware of, contemplated, and even blessed mixing

powers across the branches.

Of course, as this Court made clear in Smiley and

Noel Canning, history did not stop in 1787. The

Constitution should be interpreted “in light of its text,

purposes, and our whole experience as a Nation,” and

informed by “the actual practice of Government.”

NLRB v. Noel Canning, 573 U.S. 513, 557 (2014)

(cleaned up) (looking to historical practices to help

interpret the Recess Appointments Clause); Smiley v.

Holm, 285 U.S. 355, 369 (1932) (explaining that “long

and continuous interpretation in the course of official

action under the law may aid in removing doubts as

to its meaning.”). According to this analysis, the Court

“put[s] significant weight upon historical practice”

when considering “the allocation of power between

two elected branches of Government.” Noel Canning,

573 U.S. at 524; see also Pocket Veto Case, 279 U.S.

655, 689 (1929) (“Long settled and established

practice is a consideration of great weight in a proper

interpretation of constitutional provisions.”). This

principle “is neither new nor controversial.” Noel

Canning, 573 U.S. at 525. The Court reminded us that

it extends back to Stuart v. Laird, 5 U.S. (1 Cranch)

4

299 (1803). See id. (collecting cases from Laird to

Mistretta v. United States, 488 U.S. 361 (1989)).

Critically, in taking the full sweep of our nation’s

history into account, the Court need not—and should

not—treat that history as dispositive. Instead, the

Court can draw on historical practice to illuminate the

Constitution’s values and guide application of its

principles, particularly on “doubtful question[s] … on

which human reason may pause.” Noel Canning, 573

U.S. at 524 (quoting M’Culloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 401 (1819)); see also Ariz. State Legis.

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

814-20 (2015). Historical practice is also “an

important interpretive factor even when the nature or

longevity of that practice is subject to dispute, and

even when that practice began after the founding era.”

Noel Canning, 573 U.S. at 525.

A complete search of the historical record shows an

enduring practice of federal courts deferring to

agencies. Deference dominated the nineteenthcentury. Constitutional review of agency action was

rare and sporadic throughout that period, even as the

federal

government

stood

up

departments

administering agriculture, labor, justice, education,

and interstate commerce. And the existing vehicles for

judicial review of agency action were limited in their

reach and largely ineffectual. As the administrative

state grew and evolved in the early- to mid-twentieth

century, the federal judiciary made attempts to review

agency action more intrusively, but ultimately fell

back upon long-standing deference doctrines. These

doctrines continued up to, and through, this Court’s

decision in Chevron. And they reflect strong

continuities with early judicial practice—the actual

5

historical practice, that is, not the mythical past

Petitioners and their amici offer the Court. Judicial

micromanagement of federal agencies is simply not

the norm.

Because Petitioners get the facts wrong and are

seemingly blind to context, they also get the

consequences of their argument wrong. Turning the

clock back to the nineteenth century would not just

shrink the administrative state, but also practically

obliterate the federal judiciary as a control on it.

Petitioners suggest—however unintentionally—that

we return to a time when the federal courts were

positively anemic and federal agencies worked largely

without judicial checks.

As noted above, amici do not believe that history

should be dispositive of this dispute, or contemporary

legal disputes more generally. But, if the Court

chooses to rely on history here as a probative or

illuminating factor for reaching the right solution in

these cases, the Court should have a longer view of

history, a full and correct record, and deeper insight

into the consequences of regressing our legal system

to a nineteenth-century model. To that end, amici

offer the Court two major observations.

First, judicial deference to agency decisionmaking—either as a matter of doctrine or as a matter

of practice—is a long-running characteristic of

American law. Federal judicial deference to agency

decision-making was the norm in the nineteenth

century because of the young federal judiciary’s

limited reach and the comparatively larger volume of

early agency action. The federal courts continued to

deploy deference even after Congress’s 1875 grant of

general federal question jurisdiction, the 1946

6

enactment of the Administrative Procedure Act, and

the 1984 publication of Chevron. Petitioners’

arguments to the contrary are anachronistic and rely

on a view of the relevant history that is indefensibly

narrow, troublingly selective, and impracticably

proscriptive. See infra, Section I.

Second, agencies making policy and engaging in

legal

interpretation

did

not

violate

early

understandings of separated powers. The Framers

anticipated meaningful overlap among the three

branches’ respective spheres of authority and

constructed a constitutional system that permitted it.

In keeping with this more fluid understanding of

separated powers, early Congresses empowered

agencies to routinely perform duties that Petitioners

insist were exclusively “legislative” or “judicial.”

Petitioners and amici urge a more rigid and

categorical separation of powers than the Framers

provided us. See infra, Section II.

The Court may well choose to rescind Chevron

after hearing all the arguments presented in this case.

But the Court will not find a warrant to do so in

American history.

ARGUMENT

I.

Judicial Deference to Agency Action is

an Enduring Feature of American Law.

Petitioners claim that Chevron deference violates

judicial practice prior to Congress’s 1875 grant of

general federal-question jurisdiction. Loper Pet’rs’ Br.

29-30; Relentless Pet’rs’ Br. 20-23. Under the Loper

Bright Petitioners’ account, “in non-mandamus cases,

no comparable interpretive deference existed—only de

7

novo review.” Loper Pet’rs’ Br. 30 (internal quotation

marks omitted). This statement suggests incorrectly

that once the early courts exited the unique realm of

mandamus, they exercised broad, de novo review over

agency action. The Relentless Petitioners’ account of

nineteenth-century legal norms is somewhat less

sweeping. See Relentless Pet’rs’ Br. 23 (“Beyond

mandamus, in tort or contract cases where courts

were called upon to determine the meaning of a

statute, no deference was conferred on agency legal

interpretations.” (internal quotation marks omitted)).

But, in the absence of additional context, it is also

misleading.

Indeed, both these arguments overlook a critical

piece of context: Judicial oversight of the early federal

administrative state was extremely limited—“anemic

by modern standards.” Jerry L. Mashaw, Creating the

Administrative Constitution: The Lost One Hundred

Years of American Administrative Law 6, 245 (2012).

The federal administrative law of the nineteenth

century was largely “an internal administrative law of

guidelines and practices,” rather than judicial

doctrine. Indeed, courts played only a “small role” in

shaping agency action, regardless of the standard they

applied. Jed Handelsman Shugerman, The Legitimacy

of Administrative Law, 50 Tulsa L. Rev. 301, 302

(2015). The contemporary paradigm of judicial

review—where agency action is presumptively

reviewable (Mashaw, Creating the Administrative

Constitution, at 25) and “Article III courts [assume] ...

the familiar role of reviewing records made by other

tribunals and resolving questions of law” (Thomas W.

Merrill, Article III, Agency Adjudication, and the

Origins of the Appellate Review Model of

8

Administrative Law, 111 Colum. L. Rev. 939, 944

(2011))—is very different from early historical

practice and thought.

In the nineteenth century, the vehicles for judicial

review of agency action were limited in number. They

also tightly circumscribed the legal inquiries they

authorized courts to undertake and the remedies they

could offer. And agency action was too geographically

diffuse

and

voluminous

to

permit

close

superintendence from the courts. This historical

configuration produced a combination of de jure and

de facto deference to an administrative state that was

acting at volume on highly consequential matters.

And even after a modern appellate-style paradigm

was installed in the twentieth century, the federal

courts continued to rely on a complex body of

historically rooted deference doctrines that survived

even Chevron.

Petitioners do not meaningfully grapple with this

broader context. Nor do they grapple with the

problems with reinstituting a historical jurisprudence

based on fundamentally different judicial attitudes

toward federal administration.

A. Constitutional review of agency action

was sporadic and unusual throughout the

nineteenth century.

In the early Republic, federal courts generally did

not exercise general constitutional review over agency

action. Constitutional controls typically came from

Congress or the Executive. Even then, the law

routinely “left key questions of constitutional

structure and rights to agencies to determine.” Sophia

Z.

Lee,

Our

Administered

Constitution:

9

Administrative Constitutionalism from the Founding

to the Present, 167 U. Pa. L. Rev. 1699, 1715 (2019).

Agencies themselves elaborated “details currently

understood as part of due process’s bundle of

procedural sticks such as whether witness testimony

could be in writing or legal representation would be

allowed.” Id. at 1716-17. The Pension Office instructed

its examiners that they should not favor the claimants

or government, but instead review the facts and issue

an independent decision—laying the foundation for

the “three-hat” role of Social Security disability

adjudicators that this Court approved over 100 years

later. Mashaw, Creating the Administrative

Constitution, at 259-60. “The Postmasters General

also directed [their] subordinates on the scope of First

Amendment protections.” Lee, supra, at 1716.

Meanwhile, territorial officials operating under

the Northwest Ordinance determined the contours of

military jurisdiction over civilians and civilian

jurisdiction over the military. Gregory Ablavsky,

Administrative Constitutionalism and the Northwest

Ordinance, 167 U. Pa. L. Rev. 1631, 1638, 1649-52

(2019); see generally Gregory Ablavsky, Federal

Ground: Governing Property and Violence in the First

U.S. Territories (2021) (detailing the extent to which

territorial officials established mechanisms for, and

exercised significant authority over, territorial

administration, including land claim adjudications,

criminal justice policy, and compensation to both

Native Americans and non-Natives for certain

crimes). And the Washington Administration—

primarily through the Secretary of War—“gave

concrete meaning to the Constitution’s spare

framework” governing Indian affairs through “a

10

constant flow of letters, instructions, and intelligence

to and from Indian agents, officials, and informants on

the frontier.” Gregory Ablavsky, Beyond the Indian

Commerce Clause, 124 Yale L.J. 1012, 1019 (2015); see

also id. at 1042; Stephen J. Rockwell, Indian Affairs

and the Administrative State in the Nineteenth

Century 71 (2010). 3

Constitutional review of agency action remained

rare until the end of the nineteenth century, even

though the federal government added whole new

departments administering agriculture, labor, justice,

education, and interstate commerce. Lee, supra, at

1719-23. In 1868, Thomas Cooley assessed that

“[g]reat deference has been paid in all cases to the

action of the executive departments, where ... it is to

be presumed they have ... endeavored to keep within

the letter and the spirit of the Constitution.” Thomas

M. Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative Power of

the States of the American Union 83-84 (7th ed. 1903).

As historian Sophia Lee explained, “[T]he Court

remained disinterested if not hostile to constitutional

challenges to administrative action.” Lee, supra, at

1723.

By contrast, agencies regularly adjudicated

constitutional disputes. In the 1880s and 1890s, for

example, agencies weighed in on presidential powers

(including appointments, treaties, inherent powers,

3 Even though these jurisdictional policies were often set through

exchanges with territorial judges, “the oddity of territorial

government ... made territorial judges into legislators and

administrators,” and “almost none of [these exchanges] resulted

in an actual civil proceeding.” Ablavsky, Administrative

Constitutionalism, at 1649.

11

and the Take Care Clause), congressional powers

(including legislative and contract), the Supremacy

Clause, the Ex Post Facto Clause, the Full Faith and

Credit Clause, and the Fourth Amendment, “often

with little or no guidance from the courts.” Id. at 172627.

B. Judicial relief from agency decisionmaking during the nineteenth century

was confined to a few narrowly

circumscribed causes of action with

limited reach.

The judicial oversight of administrative action that

did occur in the nineteenth-century followed a

“bipolar” model: Plaintiffs could obtain judicial review

either by seeking a prerogative writ, or by lodging a

common law damages action against agency officers in

their personal capacities. Mashaw, Creating the

Administrative Constitution, at 24-25. Beyond these

two modes of judicial review, no review existed. And,

combined, they did not place significant limits on

agency action over time.

Mandamus Actions. The most commonly invoked

prerogative

writ—mandamus—offered

minimal

relief. The writ could issue only against federal

officers working in Washington, D.C., and thus did not

apply to officials in distant governmental outposts.

Nicholas Bagley, The Puzzling Presumption of

Reviewability, 127 Harv. L. Rev. 1285, 1296 (2014).

While “[m]any litigants made their way to the capital

to seek mandamus ... [t]hey generally had an unhappy

time.” Jerry L. Mashaw, Federal Administration and

Administrative Law in the Gilded Age, 119 Yale L.J.

1362, 1400 (2010). Mandamus actions limited judges

to determining whether the agency had jurisdiction to

12

undertake the challenged action. “This, in turn,

tended to restrict judicial intervention to executive

action lacking any legal authority and discouraged

judicial micromanagement of matters clearly falling

within the scope of agency jurisdiction.” Merrill,

Article III, at 944. The object of this review was to

determine whether federal officials had failed to

perform non-discretionary action mandated by

statute. Cf. Mashaw, Creating the Administrative

Constitution, at 302. Relief, in turn, would consist only

in compelling an agency to do something it was legally

required to do. Mandamus did not permit courts to

second-guess policy determinations that federal

officials made within the scope of their authority.

Merrill, Article III, at 1001.

Moreover, mandamus actions rarely succeeded.

This Court’s ruling in Marbury v. Madison, 5 U.S. (1

Cranch) 137 (1803) is not to the contrary. Contra

Relentless Pet’rs’ Br. 2, 12; Loper Pet’rs’ Br. 24. As

legal scholar Nicholas Bagley has explained, “Far

from calling for presumptive judicial oversight of

agency discretion, [Chief Justice] Marshall’s opinion

affirmed the primacy of a ministerial-discretionary

distinction that, for the next century, would limit

almost to the point of vanishing the availability of

mandamus relief.” Bagley, supra, at 1302.

Common Law Actions. Common law actions

against federal officials in their personal capacities

also offered avenues of relief. Mashaw, Creating the

Administrative Constitution, at 76, 84. While they

“provided significant remedial scope in the face of very

early actions of the federal government, as those

actions broadened to include benefits provision,

13

regulation, and licensing, judicial remedies failed to

keep pace.” Id. at 24.

These common law actions poorly approximated

contemporary judicial review and remedies. First, and

perhaps most critically, federal courts rarely

adjudicated them. Lee, supra, at 1711-13. Second, as

in mandamus, the federal law questions the courts

addressed were generally limited to questions of

jurisdiction. Actors exercising discretion committed to

them by law had an absolute defense. Bagley, supra,

at 1299; see also Mashaw, Creating the Administrative

Constitution, at 76. 4 Third, successful plaintiffs were

generally only entitled to money damages from the

official himself. They could not obtain vacatur of the

policy that might have directed the official’s action.

Bagley, supra, at 1299; Mashaw, Creating the

Administrative Constitution, at 76, 84. And fourth,

large swaths of government action—such as a failure

to act—were not wrongs at common law and so could

not be addressed. Bagley, supra, at 1299.

Doctrine of Non-Reviewability. Linking these

two types of legal action was a common reluctance on

behalf of courts to adjudicate questions of federal law

on the merits. Instead, judges confined themselves to

jurisdictional questions. This summed up to a

4 To the extent that officials’ actions were reviewed based on a

“reasonableness” standard, it was Congress—not courts—that

did so. Officers held liable in common law actions could petition

Congress for reimbursement of their expenses. In assessing those

petitions, Congress investigated whether the officers’ actions

were reasonable. See generally James E. Pfander & Jonathan L.

Hunt, Public Wrongs and Private Bills: Indemnification and

Government Accountability in the Early Republic, 85 N.Y.U. L.

Rev. 1862, 1866-70, 1889-93 (2010).

14

“doctrine of non-reviewability of administrative

discretion.” Id. at 1300 (internal quotation marks

omitted).

Critically, these two avenues of redress were not

islands floating in a broader doctrinal sea of de novo

review. Instead, they were the complete universe of

judicial redress. See Winston Bowman, The Indefinite

Article: Historicizing the Judicial Branch, in

Approaches to Federal Judicial History 9, 24

(Gautham Rao et al. eds., 2020). If plaintiffs could not

fit their claims into one of the two vehicles, they did

not have access to review.

In minimizing the significance of mandamus

(Loper Pet’rs’ Br. 29-30; Cato Inst. Loper Br. 8-9), the

Loper Bright Petitioners and their amici may believe

they have distinguished away the narrow exceptions

to a background rule that favors them. But they have

only confirmed the existence of a background norm

that is affirmatively hostile to their position.

Meanwhile, the Relentless Petitioners (Pet’rs’ Br. 23)

have failed to acknowledge the minimal share of

agency action covered by nineteenth-century

mandamus, tort, and contracts cases.

C. Early federal administrators routinely

exercised discretion on a large volume of

critical matters with minimal judicial

oversight.

The anemia of judicial review in the nineteenthcentury might be less problematic for Petitioners’

position if the early federal administrative state were

also anemic, its actions inconsequential, and its

conduct comprehensively directed by statute. But

federal officials throughout the nineteenth century

15

exercised substantial discretion on a large volume of

critical matters, largely unchecked by the judiciary.

This totaled up to substantial judicial deference to

federal administrators as a matter of course.

Undoubtedly, the early state was not nearly as

large as its contemporary counterpart: There were

only 11,491 federal civil servants in 1831, for example.

Gautham Rao, National Duties: Custom Houses and

the Making of the American State 6 (2016). And it did

not administer nearly the range of subject matter at

nearly the same depth as the modern administrative

state. But early Congresses delegated “vast powers” to

the executive branch and the burgeoning ranks of

administrators. Julian Davis Mortenson & Nicholas

Bagley, Delegation at the Founding, 121 Colum. L.

Rev. 277, 332 (2021). These delegations “consolidated

prescriptive and enforcement authority within

sometimes-sprawling bureaucratic apparatuses.” Id.

at 333.

Chief among these mission-critical authorities and

duties was revenue-raising. The Treasury and its

network of customs houses run largely by federal

appointees administered “the most important federal

tax of the nineteenth century.” Nicholas R. Parrillo,

Against the Profit Motive: The Salary Revolution in

American Government, 1780-1940, 40 (2013).

“[C]ustoms revenue almost singlehandedly funded the

federal government. Between 1789 and 1836 the

federal government collected about $830 million in

revenue. Approximately $682 million of that sum”—or

82 percent—“came from the customs houses.” Rao,

National Duties, at 6 (cleaned up). Meanwhile,

Congress’s sweeping 1798 direct tax on real estate was

collected through a system that reached “every house

16

and farm in every state” and deployed “more federal

officials than any nonmilitary operation … before

about 1810.” Nicholas R. Parrillo, A Critical

Assessment of the Originalist Case Against

Administrative Regulatory Power: New Evidence from

the Federal Tax on Private Real Estate in the 1790s,

130 Yale L.J. 1288, 1304, 1330 (2021). Congress

likewise chartered several national banks, the second

of which was authorized to operate in a manner

similar to a modern central bank or the Federal

Reserve

system.

Mashaw,

Creating

the

Administrative Constitution, at 166.

The federal government also regulated commerce

among the states and with foreigners, policed the

young nation’s borders, conducted international

diplomacy, waged war, administered a large and

growing war pensions system, acquired and

administered additional territory—often through

military violence against Native Americans—

subsidized the country’s westward expansion, and

built

and

maintained

transportation

and

communication infrastructure, including the postal

service. Rao, National Duties, at 13; Brian Balogh, A

Government Out of Sight: The Mystery of National

Authority in Nineteenth Century America 220-31

(2009); Lee, supra, at 1719-1720; Richard R. John,

Spreading the News: The American Postal System

from Franklin to Morse 25 (1995); William J. Novak,

The Myth of the “Weak” American State, 113 Am. Hist.

Rev. 752, 758 (2008); Rockwell, supra, at 77-78.

Federal statutes were rarely sufficient to guide

official action. So, federal officials had to exercise

significant discretion. As historian Nicholas Parrillo

explained, one might assume that as Congress issued

17

“ever more specific regulation through more elaborate

written rules,” “official behavior became ever more

exact and rule bound.” “The truth,” however, “is

nearer the opposite”:

[T]he proliferation of elaborate restrictions on

conduct required those who administered such

restrictions to exercise ever-greater subjective

judgment, discretion, and forbearance in

imposing—or, more accurately, refraining from

imposing—the sanctions for such conduct ...

[L]awmakers commonly wrote an overly broad

rule whose sharp edges could be ‘sanded off’

through selective nonenforcement.

Parrillo, Against the Profit Motive, at 39-40.

Examples of this kind of deference abounded

throughout the nineteenth century, although one

would never gather as much from Petitioners’ briefing

on the period.

For example, an elaborate body of statutory law

defined many of the details of customs work. But the

system could not—and did not—function without

substantial gap-filling and innovation by the officers

manning the ports of entry—134 of whom attended to

39 ports during the Washington administration. Rao,

National Duties, at 64-69. Customs officials also

challenged the guidance they received from the

Treasury. To resolve a clash with his customs officials

over the proper interpretation of the Enrollment Act

of 1789, Hamilton allowed them to interpret statutes

and guidance more broadly, removed high-ranking

Treasury officials from close superintendence of the

ports, and limited their power to coerce compliance

from merchants. Id. at 92-93, 131. The push and pull

18

between Washington, D.C., and the localities

continued as late as 1874, when Congress eliminated

moieties for customs officers to encourage them to

exercise more strategic forbearance in seizing

shipments that violated customs laws. Parrillo,

Against the Profit Motive, at 42.

Discretion factored heavily into the application of

federal law elsewhere, too. Early tax assessors and

their supervisory boards had substantial discretion

over methods for valuing real estate and calculating

assessments. Parrillo, Critical Assessment, at 1319,

1334-36. The Second Bank of the United States’s

authorizing statute left to the Bank’s directors all

decisions concerning how the Bank would carry out its

fiscal and monetary functions, including full power to

regulate its own affairs by bylaws, ordinances, or

regulations and decide where it should open and

operate

branches.

Mashaw,

Creating

the

Administrative Constitution, at 166. Marine hospitals

early on vested customs officials and local physicians

with substantial discretion in determining who should

receive the medical care guaranteed by congressional

statute.

See

Gautham

Rao,

Administering

Entitlement: Governance, Public Health Care, and the

Early American State, 37 Law & Soc. Inquiry 627,

635-636 (2012).

Following the Civil War, the Pension Office

afforded examiners significant discretion to review

medical evidence and make recommendations as to

whether claimants were entitled to military pensions.

Mashaw, Creating the Administrative Constitution, at

257-61. Discretion likewise heavily influenced

adjudications of naturalization requests and land

claims in the West. Parrillo, Against the Profit Motive,

19

at 19; Mashaw, Creating

Constitution, at 129.

the

Administrative

By the latter half of the nineteenth century, federal

administrators were generating a massive amount of

action. In 1856 alone, steamboat inspectors reported

inspecting 1,122 steamers, along with 2,500 pilots and

nearly 3,000 engineers. In the years immediately

following the Civil War, the Bureau of Prisons decided

“hundreds of thousands” of cases of pension eligibility.

Dispositions by the Land Office, the Patent Office, the

Court of Claims, the Controller’s Office of the

Treasury, and the Post Office summed up to “tens of

thousands

more.”

Mashaw,

Creating

the

Administrative Constitution, at 205, 252. But

“virtually none of those adjudicatory actions was

subject to judicial review.” Id. at 252.

This legal state of affairs totaled up to “an

immense amount of administrative action [being]

shielded from judicial scrutiny.” Bagley, supra, at

1300. The “bipolar” review that the federal judiciary

undertook during this period was simply outpaced by

the activity of the growing agencies. The result was a

system of government characterized by judicial

deference to agency action as a matter of course.

D. Judicial deference to agency decisionmaking persisted into the twentieth

century, continuing even past Chevron.

The Loper Bright Petitioners’ historical account

ends in 1875. But history did not stop there. The

Relentless Petitioners attempt to remedy the gap with

argumentation that extends up to the passage of the

APA in 1946. See Relentless Pet’rs’ Br. 23-24. But,

again, the history they offer is materially incomplete,

20

eliding a tradition of deference that not only survived

the APA, but Chevron, too.

As the traditional bipolar model began to break

down in the latter years of the nineteenth century and

the modern administrative state and judiciary took

form, courts began to experiment with more invasive

review of agency action, including more de novo

review of agency determinations of law. This occurred

in fits and starts, though became particularly obvious

with the Supreme Court’s aggressive superintendence

of the Interstate Commerce Commission circa 190710. 5 Such invasive review continued through the

1940s. Merrill, Article III, at 943, 953, 964-65; Thomas

W. Merrill, Judicial Deference to Executive Precedent,

101 Yale L.J. 969, 994 (1992). But this approach was

“short lived” and “prevailed” only “fleetingly.” Merrill,

Judicial Deference, at 994, 1013. Concerns that this

approach unduly aggrandized the federal courts led

the Court to abandon it “soon after the [APA] was

enacted.” Id. at 994-95.

In its place, the Court fleshed out a “multifactored

contextual approach” to deploying deference on

questions of law, which “dominated the pre-Chevron

era.” Merrill, Judicial Deference, at 995. This

approach was “pragmatic,” calling the Court to

consider a number of factors and providing for varying

levels of deference on a “sliding scale.” Id. at 972.

“Some factors—such as the importance of

longstanding and consistent or contemporaneous

For example, the Supreme Court began to make “limited

inroads on the dominant bipolar model of judicial review” in the

1860s, though only in cases between private parties involving

determinations made by the Land Office. See Mashaw, Creating

the Administrative Constitution, at 248.

5

21

administrative constructions—have been invoked as

reasons for deferring to executive interpretations for

over 150 years,” in, for example, cases adjudicated in

the Court of Claims. Id. at 975 (citing, inter alia,

United States v. Vowell, 9 U.S. (5 Cranch) 368, 371

(1809)); accord OSG Loper Br. 22-26; OSG Relentless

Br. 21-25. And the Court continued to invoke these

factors in a considerable number of cases postChevron. Merrill, Judicial Deference, at 984-85

(examining case law through 1990).

Thus, while federal courts oscillated over time in

the amount of deference they paid to agency

determinations of law and on what grounds, the wide

sweep of history reveals a remarkably persistent

tradition of deference that had both practical and

doctrinal dimensions.

E. Reverting to nineteenth-century judicial

practice would introduce a host of

problems—including

for

Petitioners’

appeals.

Perhaps because they have fundamentally miscast

nineteenth-century judicial practice, Petitioners are

remarkably silent on the practical implications of

reverting contemporary practice to the (actual) norms

of that period.

Turning the clock back several centuries would not

just shrink the administrative state, but also

effectively eliminate the federal courts’ role in

superintending it. Petitioners would revert the

contemporary courts to the practices of a long-gone

judiciary that was relatively underdeveloped and

positively anemic. Doing so would diminish the

Court’s own status vis-à-vis federal agencies. And it

22

would undermine the substantial law the federal

courts have developed to ensure that agencies respect

the constitutional rights of the people they serve.

A return to nineteenth-century norms would also

require a dramatic reframing of the way we

understand separation of powers disputes involving

courts and agencies. Throughout the nineteenth

century, the federal courts worried about judges

contaminating executive decision-making by revising

executive officers’ discretionary decisions. Bagley,

supra, at 1295; Merrill, Article III, at 944. “As

Professor Bruce Wyman explained in his 1903 treatise

on administrative law, [judicial second-guessing of

those kinds of decisions] was thought to violate ‘the

life principle in the rule of the separation of powers’

that ‘the judiciary should have no business in the

action of the administration.’” Bagley, supra, at 1295;

see also Mashaw, Creating the Administrative

Constitution, at 252-54. This concern persisted well

into the first decades of the twentieth century. See

Merrill, Article III, at 944.

In harking back to the nineteenth century,

Petitioners—however unwittingly—are urging the

Court to revert to a system of judicial review that

could not give them the relief they want. Indeed,

neither a mandamus action, nor a common law

damages suit would have permitted the practical

relief the Petitioners ultimately seek—setting aside

the National Marine Fisheries Service’s final rule. See

Relentless Pet’rs’ Br. 47-52; cf. Loper Pet’rs’ Br. 47-51.

23

II.

The Founding Generation Licensed

Mixing Powers among the Three

Branches of the Federal Government.

Petitioners and their amici frequently raise

separation of powers concerns from the purported

perspective of the Founding Generation. As they

would have it, the Founders would never permit a

mixing of legislative, executive, and judicial functions.

Chevron deference, in turn, violates these principles

because it permits agencies to exercise the judicial

power to say what the law is. See, e.g., Relentless

Pet’rs’ Br. 15-20; Loper Pet’rs’ Br. 23-27; Sen. Ted

Cruz et al. Loper Br. 6-9; U.S. Chamber of Commerce

Loper Br. 8-14.

We have already explained why a broader sweep of

history is necessary to make sense of this case. But

even assuming that Founding Era history is

probative, Petitioners’ accounts of it are flawed. Their

accounts lack the context necessary to make sense of

the old documents they and their amici quote or to

gauge how Founding Era Americans actually thought

about the issues that concern Petitioners. These

accounts, too, are deeply anachronistic, imposing on

the Framers’ ways of thinking that they simply did not

have. The result are briefs that read the Framers

against the grain of the larger body of historical

evidence in a misguided attempt to extract hard-andfast decision rules that the Framers did not provide

us.

In reality, the Founding Generation understood

power to be more fluid and shareable among the

branches than Petitioners contend, as demonstrated

by the text and design of the early state constitutions,

the Articles of Confederation, and the Constitution

24

itself, as well as post-ratification practice. The

Framers and early Congresses expected and allowed

for substantial mixing of legislative, executive, and

judicial authority across branches. Under these

circumstances, Chevron deference cannot plausibly be

criticized as an affront to early understandings of

separated powers.

Early State Constitutions. The earliest state

constitutions followed an equation of “legislative

supremacy, radical representation, and magisterial

impotence.” Martin S. Flaherty, The Most Dangerous

Branch, 105 Yale L.J. 1725, 1760-61 (1996). They

concentrated power in legislative assemblies

(particularly the lower houses) and included few, if

any, checks on the legislature from the other branches

of government. Gordon S. Wood, The Creation of the

American Republic, 1776-1787, 163 (1969). Over time,

it became clear that the legislative supremacy model

did not work as intended. Legislatures abused their

authority to confiscate property, tamper with

contracts, and undermine trial rights. Flaherty,

supra, at 1763; see also Joshua C. Macey & Brian M.

Richardson, Checks, Not Balances, 101 Tex. L. Rev.

89, 126 (2022). Frustrated Americans turned toward

new solutions, a search that led them to rethink the

then “relatively minor eighteenth-century maxim” of

separation of powers. Wood, supra, at 449.

Although already familiar with the doctrine

through the works of Locke and its chief architect,

Montesquieu, most early Americans had only a “hazy”

conception of it. Flaherty, supra, at 1764, 1766. Those

who invoked the doctrine generally agreed that it

involved three types of governmental power:

legislative (enacting, amending, or abrogating laws),

25

executive (making peace or war and ensuring public

security), and judicial (punishing crimes and resolving

disputes). Id. at 1765 (citing Baron de Montesquieu,

The Spirit of the Laws 151 (Thomas Nugent trans.,

1949)); see also Wood, supra, at 152. But even these

basic definitions generated disagreement. See Wood,

supra, at 152-53. Indeed, a wealth of scholarship has

recognized the difficulty inherent in distilling the

doctrine into a fixed, unambiguous concept

throughout the Revolutionary and post-Revolutionary

period. See, e.g., Wood, supra, at 161; Flaherty, supra,

at 1755-56; John F. Manning, Separation of Powers as

Ordinary Interpretation, 124 Harv. L. Rev. 1939,

1944-45

(2011);

see

also

M.J.C.

Vile,

Constitutionalism and the Separation of Powers 2

(1967). More often than not, those who drew upon

separation of powers principles in the early Republic

simply assumed them without explanation. See Wood,

supra, at 153-54.

Critics of legislative supremacy advocated for a

more balanced division of powers and responsibilities

among the branches of state government so that no

branch would become as powerful as the early state

legislatures once had. Manning, supra, at 1998. A

series of new state constitutions—including New

York’s 1777 constitution and Massachusetts’ 1780

constitution—put this evolving principle of balance

into practice, giving governors and courts greater

authority vis-à-vis the legislatures. Vile, supra, at

162-63.

The Articles of Confederation. Under the

Articles of Confederation, the Continental Congress

undertook a mix of legislative, executive, and judicial

functions. Flaherty, supra, at 1771-72. The Congress

26

regulated financial matters, established post offices,

made war, and appointed and commissioned all

military offices. Articles of Confederation of 1781, art.

IX. The Congress also had the authority to “manag[e]

the general affairs of the united states” and even acted

as an appellate court for interstate and certain

admiralty disputes. Id.; see also Peter S. Onuf, The

Origins of the Federal Republic: Jurisdictional

Controversies in the United States 1775-1787, 10

(1983). In short, the Articles’ distribution of powers

“would not have been a plausible baseline for the

separation of powers.” Manning, supra, at 1997 n.293.

One of the Congress’ most significant actions

during this period—the Northwest Ordinance—

demonstrates just how far the early Republic was

from segregating powers. 32 Journals of the

Continental Congress 1774-1789, 334-43 (Roscoe R.

Hill, ed., 1936). The Ordinance delegated a sweeping

mix of executive, legislative, and judicial power and

discretion over the new Northwest Territory to a

legislature comprised of five presidentially-selected

and congressionally-confirmed officials: a governor, a

secretary, and three judges. Id.; see also Ablavsky,

Administrative Constitutionalism and the Northwest

Ordinance, at 1632-33. The Ordinance favored the

executive, granting him an absolute veto over

legislation and authority to convene, prorogue, and

dissolve the legislature whenever expedient. 32

Journals of the Continental Congress 1774-1789, at

339.

The Constitution. Perhaps unsurprisingly, the

Constitutional Convention did not miraculously distill

separation of powers into clear decision rules. The

delegates to the Convention agreed only at the most

27

general level “that there must be an executive branch,

independent of the legislative and judicial branches.”

Forrest McDonald, Novus Ordo Seclorum: The

Intellectual Origins of the Constitution 240 (1985); see

also Manning, supra, at 1999. But beyond that, the

Convention left the bulk of the most critical issues

implicating

separation

of

powers—including

presidential

selection,

the

veto,

legislative

involvement in executive appointments, and war

powers—either unsettled or tentatively settled

throughout most of the summer of 1787. Flaherty,

supra, at 1779. And when they did settle them, the

resulting text “only attempted to define the powers

and relationships of each branch mainly at their

respective pinnacles.” Id. at 1783; cf. Vile, supra, at

171-72.

Even at this high level, the text of the Constitution

itself demonstrates a functional commitment to

balance that mixes many powers. Vile, supra, at 172;

Macey & Richardson, supra, at 118-19; Manning,

supra, at 1999-2005. Most significantly the

Constitution granted the President a qualified veto

over legislation. U.S. Const. art. I, § 7, cl. 2. With

respect to the judiciary, the Constitution sought to

strengthen its authority by creating the Supreme

Court and authorizing Congress to create an entirely

new federal judiciary complete with broad potential

jurisdiction. Id. at art. III, §§ 1-2.

In distributing these powers among the branches,

the Framers left many more questions than answers.

Flaherty, supra, at 1787; see also Jonathan Gienapp,

The Second Creation: Fixing the American

Constitution in the Founding Era 4 (2018) (“The

Constitution was born without many of its defining

28

attributes; these had to be provided through acts of

imagination.”). The omissions reflect the difficulty

inherent in attempting to classify government action

in the abstract. Macey & Richardson, supra, at 123;

Mortenson & Bagley, supra, at 315. To the Founders,

“the boundaries between the Executive, Legislative

and Judiciary powers, though in general so strongly

marked in themselves, consist[ed] in many instances

of mere shades of difference.” Letter from James

Madison to Thomas Jefferson (Oct. 24, 1787), in 12

The Papers of Thomas Jefferson: August 1787 to

March 1788, 270, 275 (Julian P. Boyd ed., 1955); see

also Mortenson & Bagley, supra, at 315. The Founders

intended that “answers would come mainly through

the enumerated political processes as informed by the

fundamental constitutional values that give rise to

them.” Flaherty, supra, at 1787.

The Ratification Debates. The records of the

ratification debates “yield nothing approaching a

consensus either as to what separation of powers

entailed or what the powers themselves included

beyond the basic values the doctrine was to serve.” Id.

at 1807.

What is clear, however, is that those debating the

Constitution—whether they disagreed or agreed with

the ultimate division of powers—acknowledged that it

violated a strict interpretation of the doctrine. Vile,

supra, at 172. The Anti-Federalists criticized the

Constitution, arguing that the legislative and

executive powers were “not kept separate as every one

of the American constitutions declares they ought to

be,” but instead “mixed in a manner entirely novel and

unknown, even to the constitution of Great Britain.”

Letter by An Officer of the Late Continental Army,

29

(Philadelphia) Independent Gazetteer (Nov. 6, 1787),

reprinted in 3 The Complete Anti-Federalist 91, 93

(Herbert J. Storing ed., 1998); see also Macey &

Richardson, supra, at 120-22.

At first, the Federalists went on the defensive.

They argued that the Constitution’s blended

boundaries did not go as far as Britain—that “[t]he

king of England has legislative power, while our

president can only use it when the other servants of

the people are divided.” “An American Citizen” [Tench

Coxe] I, (Philadelphia) Independent Gazetteer (Sept.

26, 1787), reprinted in 1 The Debate on the

Constitution: Federalist and Antifederalist Speeches,

Articles, and Letters During the Struggle over

Ratification 20, 23 (Bernard Bailyn ed., 1993). But

over time, the Federalists came to champion the

document’s functional division of powers as the best

means of achieving the balance and accountability

that separation of powers was intended to produce. As

Hamilton explained to the New York Convention:

The legislative authority is lodged in three

distinct branches, properly balanced; the

executive is divided between two branches; and

the judicial is still reserved for an independent

body, who hold their office during good

behavior. This organization is so complex, so

skillfully contrived, that it is next to impossible

that an impolitic or wicked measure should

pass the scrutiny with success.

2 The Debates in the Several State Conventions on the

Adoption of the Federal Constitution 329, 348

(Jonathan Elliot ed., 1881).

30

The Federalists’ functional approach to separation

makes Petitioners’ reliance on Federalist No. 47 all

the more perplexing. They selectively quote Madison

to argue that Chevron violates the Founding

Generation’s recognition that “the accumulation of all

powers, legislative, executive, and judiciary, in the

same hands ... may justly be pronounced the very

definition of tyranny.” Loper Pet’rs’ Br. 23-24 (quoting

The Federalist No. 47, at 298 (James Madison)).

But a complete reading of Federalist No. 47

demonstrates that Madison, like Hamilton, sought not

to advocate for a rigid interpretation of separation of

powers, but instead to alleviate the Anti-Federalist

concerns that the Constitution did not separate the

legislative, executive, and judiciary departments

enough. In addressing their concerns, Madison

explained that separation of powers principles did not

require that each branch be “totally separate and

distinct from each other.” The Federalist No. 47, at

302 (James Madison) (Clinton Rossiter ed., 1961). In

fact, he argued that such an inflexible interpretation

of separation of powers misunderstood the writings of

Montesquieu, the British Constitution he studied, and

the early state constitutions. Id. at 302-08; see also

Flaherty, supra, at 1809; Manning, supra, at 2004.

According to Madison, a correct interpretation of

Montesquieu’s work simply meant that “the whole

power of one department” could not be “exercised by

the same hands which possess the whole power of

another department.” The Federalist No. 47, supra, at

302-03 (Madison). In other words, the king, as the sole

executive magistrate, could not also possess “complete

legislative power” or “the supreme administration of

justice,” just as the “entire legislative body” could not

31

“possess[ ] the supreme judiciary, or the supreme

executive authority.” Id. at 303; see also Willi Paul

Adams, The First American Constitutions: Republican

Ideology and the Making of the State Constitutions in

the Revolutionary Era 275 (Rita & Robert Kimber

trans., 1980). (“Montesquieu, the authority used by

the critics, had not advocated a separation of powers

pure and simple.”) And lest there be any confusion,

Madison provided several examples from state

constitutions that had mixed authority among their

branches to demonstrate that “there is not a single

instance in which the several departments of power

have been kept absolutely separate and distinct.” The

Federalist No. 47, supra, at 300-03 (Madison).

Post-Ratification

Practice.

The

actual

functioning of the early American state further

underscores the Founding Generation’s mixed

approach to allocating power. As early as the First

Congress, federal lawmakers instituted governance

mechanisms that mixed lawmaking, executive, and

adjudication functions. See Shugerman, supra, at 303;

see also Mashaw, Creating the Administrative

Constitution, at 44.

Case in point is what Mashaw has called the early

Republic’s “largest and most difficult administrative

tasks”: surveying and selling the early nation’s public

lands. Mashaw, Creating the Administrative

Constitution, at 119; see also Malcolm J. Rohrbough,

The Land Office Business: The Settlement and

Administration of American Public Lands, 1789-1837,

12 (1968). Competing private claims to public lands—

based on complicated questions of law concerning

previous land grants from Spain, France, and Britain,

grants from former colonies, and transfers from

32

Native American tribes—were far too numerous for

the country’s territorial courts. Mashaw, Creating the

Administrative Constitution, at 127-28. Congress

responded by creating a system of commissioners to

adjudicate these claims, and in doing so granted them

a broad mix of authority to compel attendance at

hearings, administer oaths, examine witnesses, and

decide cases “according to justice and equity.” Id. at

129; see also Gregory Ablavsky, Getting Public Rights

Wrong: The Lost History of the Private Land Claims,

74 Stan. L. Rev. 277, 284 (2022) (exploring the

“sprawling jurisprudence” created by early federal

administrative adjudications of private land claims).

And when federal legislation did not answer certain

questions about the adjudication process, such as the

formal requirements for stating a claim or what type

of evidence commissioners could consider, treasury

secretaries and later the General Land Office

developed those policies themselves. Mashaw,

Creating the Administrative Constitution, at 132.

Congress provided for a similar blend of federal

powers when addressing the pressing issue of

steamboat safety. In 1852, Congress passed a revised

Steamboat Inspection Act that charged a Board of

Supervising Inspectors with implementing federal

safety standards. Id. at 192. Each supervising

inspector oversaw local inspectors, who physically

examined and certified steamboats, and also licensed

steamboat engineers. To ensure uniformity across

these local inspectors’ actions, Congress gave the

supervising inspectors both adjudicatory and

rulemaking functions. For example, if a steamboat

owner or rejected engineer did not agree with local

inspectors’ reasoning for denying or revoking

33

inspection certificates or licenses, they could file a de

novo appeal to the supervising instructor of their

district. Id. at 192-3.

This practice of blending powers—including

judicial and executive powers—occurred frequently

throughout the late-nineteenth century. Federal

examining surgeons adjudicated veterans’ claims for

disability benefits. Id. at 263. Congress gave federal

registrars and receivers increasing authority to

adjudicate Western settlers’ claims for land under

federal legislation such as the Homestead Act.

Parrillo, Against the Profit Motive, at 19; see also

Mashaw, Creating the Administrative Constitution, at

255-56. Meanwhile, state judges and court clerks

adjudicated naturalization applications—a function

now performed by the executive. Mashaw, Creating

the Administrative Constitution, at 298-99; Parrillo,

Against the Profit Motive, at 128-45; 12 U.S.

Citizenship and Immigr. Servs., Policy Manual, pt. B,

ch. 3, https://www.uscis.gov/policy-manual/volume12-part-b-chapter-3.

Ultimately, Petitioners and their amici are far

more concerned with sorting federal governmental

powers into boxes than the Founders ever were. When

it came time to put the Constitution’s commitments

into practice and build an effective state, the nation’s

early leaders allowed those powers to be shared across

the branches. In insisting that the Framers offered

hard-and-fast decision rules that can place a given

power solely in one branch or another, Petitioners

attempt to read out of the Framers conclusions they

never reached.

34

CONCLUSION

The judgment of the First Circuit should be

affirmed.

Respectfully submitted,

THOMAS P. WOLF

Counsel of Record

LAUREN E. MILLER

SAMUEL R. BREIDBART

BRENNAN CENTER FOR

JUSTICE AT NYU

SCHOOL OF LAW

120 Broadway, Ste 1750

New York, NY 10271

(646) 292-8310

wolft@

brennan.law.nyu.edu

DECEMBER 2023