Amicus Curiae Brief — Cletus Woodrow Bohon, et al., Petitioners v. Federal Energy Regulatory Commission, et al.

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No. 22-256

In the

Supreme Court of the United States

CLETUS WOODROW BOHON, ET AL.,

Petitioners,

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Constitutional Counsel Group

174 W. Lincoln Ave. #620

Anaheim, CA 92805

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

REASONS FOR GRANTING THE WRIT ..................3

I. The Non-Delegation Doctrine Is an Inherent

Feature of Constitutional Structure. ............... 3

A. The Non-Delegation Doctrine Is Required by

Separation of Powers ........................................ 3

B. Non-Delegation is required by the Vesting

Clause................................................................ 5

II. The Statutory Scheme at Issue Raises Serious

Non-Delegation Concerns. ................................ 8

CONCLUSION ....................................................... 9

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TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935) .............................................. 5, 9

Boumediene v. Bush,

553 U.S. 723 (2008)..................................................5

Bowsher v. Synar,

478 U.S. 714 (1986).............................................. 6, 9

Calder v. Bull,

3 U.S. 386 (1798)......................................................8

Clinton v. City of New York,

524 U.S. 417 (1998)........................................ 4, 6, 10

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1823) ...........................9

Dept. of Transp. v. Association of American

Railroads,

575 U.S. 43 (2015)............................................ 1, 5, 6

Field v. Clark,

143 U.S. 649 (1892)..................................................3

Free Enterprise Fund v. Pub. Accounting Board

Oversight Bd.,

561 U.S. 477 (2010)..................................................9

Gundy v. United States,

139 S.Ct. 2116 (2019)................................... 1, 3, 5, 7

In re Kemmler,

136 U.S. 436 (1890)..................................................8

INS v. Chadha,

462 U.S. 919 (1983)...................................... 4, 6, 7, 9

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Jarkesy v. Securities and Exchange Comm’n,

34 F.4th 446 (5th Cir., 2022) .....................................1

Johnson v. United States,

333 U.S. 10 (1948)....................................................8

Kelo v. City of New London, Connecticut,

545 U.S. 469 (2005)..................................................8

Metro. Wash. Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc.,

501 U.S. 252 (1991)..................................................5

Mistretta v. United States,

488 U.S. 361 (1989).............................................. 3, 5

PennEast Pipeline Co., LLC v. New Jersey,

141 S.Ct. 2244 (2021)...............................................1

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015)....................................................1

Stern v. Marshall,

564 U.S. 462 (2011)..................................................6

Wellness Int’l Network, Ltd. v. Shariff,

575 U.S. 665 (2015)..................................................6

West Virginia v. Environmental Protection Agency,

142 S.Ct. 2587 (2022)...............................................1

Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457 (2001)..................................................6

Constitution

U.S. Const. Article I, § 1.......................................... 3, 6

U.S. Const., Art I, § 7 ..................................................6

Other Authorities

Blackstone, William, Commentaries on the Laws of

England (1765).........................................................3

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Federalist No. 47 .........................................................4

Federalist No. 48 .........................................................4

Federalist No. 51 .........................................................4

Federalist No. 9 ...........................................................4

Letter from Thomas Jefferson to John Adams (Sept.

28, 1787), in 1 The Adams-Jefferson Letters

(Lester J. Cappon ed., 1959) ....................................4

Locke, John, THE TWO TREATISES OF CIVIL

GOVERNMENT, Book II, §141(Hollis Ed. (1764))

(Liberty Fund Online Library at 156) ................. 4, 5

Montesquieu, The Spirit of the Laws 152 (Franz

Neumann ed., Thomas Nugent trans., Hafner

Publ’g Co. 1949) (1748) ............................................3

Statutes

Sup. Ct. Rule 37.6........................................................1

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INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the core principle of separation of powers which prohibits delegation of legislative power. The Center has participated

in a number of cases before this Court raising these

issues including West Virginia v. Environmental Protection Agency, 142 S.Ct. 2587 (2022); Gundy v. United

States, 139 S.Ct. 2116 (2019); Perez v. Mortg. Bankers

Ass’n, 575 U.S. 92 (2015); Dept. of Transp. v. Association of American Railroads, 575 U.S. 43 (2015).

SUMMARY OF ARGUMENT

This case presents a challenge to the constitutional

authority of the Federal Energy Regulatory Commission. The decision of the court below that such a constitutional challenge must first be submitted to the

Commission for adjudication is plainly wrong and conflicts with the decisions of this Court and other Courts

of Appeals. PennEast Pipeline Co., LLC v. New Jersey,

141 S.Ct. 2244, 2254 (2021); Jarkesy v. Securities and

Exchange Comm’n, 34 F.4th 446, 459 (5th Cir., 2022).

Amicus here outlines the constitutional defects at issue in the delegation of authority to the Commission.

Those defects make plain why the Commission itself

1 All parties received timely notice of and have consented to the

filing of this brief. In accordance with Rule 37.6, counsel affirms

that no counsel for any party authored this brief in whole or in

part and that no person or entity other than amicus made a monetary contribution to fund the preparation and submission of this

brief.

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cannot hear the case and that the complaint was

properly filed in the United States District Court in

the first instance.

The Constitution, through the structure of the Separation of Powers, and the Vesting Clause with its

limitations on the exercise of legislative power, prohibits delegation of legislative power to executive

agencies and prohibits delegation of the power of eminent domain to private entities. Here Congress delegated to the Commission the power to issue a certificate of convenience to a private company, which includes the power of eminent domain, if the Commission determines that company is “qualified” and that

the service will be required by “public convenience and

necessity.” Congress left to the Commission’s discretion the definition of those terms. There was no guidance or intelligible principle by which this Court could

measure the scope of the delegation. The Court

should grant the petition and allow petitioners to present, in an Article III court, their contention that the

enabling legislation is an unconstitutional delegation

of legislative power.

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REASONS FOR GRANTING THE WRIT

I.

The Non-Delegation Doctrine Is an Inherent Feature of Constitutional Structure.

“The nondelegation doctrine bars Congress from

transferring its legislative power to another branch of

Government.” Gundy v. United States, 139 S.Ct. at

2121 (plurality opinion). The Doctrine is inherent in

the design of government. Non-Delegation is required

by Separation of Powers and is mandated by the Vesting Clause of Article I, § 1 with its limitations on the

manner that Congress may exercise its legislative

power.

A. The Non-Delegation Doctrine Is Required

by Separation of Powers

There can be no question that our Constitution describes a government of enumerated and separated

powers. Nondelegation is a requirement of that separated powers structure. Mistretta v. United States,

488 U.S. 361, 372 (1989); Field v. Clark, 143 U.S. 649,

692 (1892).

The Framers and Ratifiers of the Constitution understood that separation of powers was necessary to

protect individual liberty. In this, the founding generation relied on the works of Montesquieu, Blackstone, and Locke for the proposition that institutional

separation of powers was an essential protection

against arbitrary government. See, e.g., Montesquieu,

The Spirit of the Laws 152 (Franz Neumann ed.,

Thomas Nugent trans., Hafner Publ’g Co. 1949)

(1748); 1 William Blackstone, Commentaries on the

Laws of England 150-51 (William S. Hein & Co., Inc.

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1992) (1765); John Locke, The Second Treatise of Government 82 (Thomas P. Peardon ed., Prentice-Hall,

Inc. 1997) (1690).

These warnings against consolidated power resulted in structural separation of power protections in

the design of the federal government. See Federalist

No. 51, at 321 (James Madison) (Clinton Rossiter, ed.,

1961); Federalist No. 47, supra, at 301, 308 (James

Madison); Federalist No. 9, supra, at 72 (Alexander

Hamilton); see also Letter from Thomas Jefferson to

John Adams (Sept. 28, 1787), in 1 The Adams-Jefferson Letters 199 (Lester J. Cappon ed., 1959). That design divided the power of the national government

into three distinct branches, vesting the legislative

authority in Congress, the executive power in the

President, and the judicial responsibilities in the Supreme Court and lower federal courts. INS v.

Chadha, 462 U.S. 919, 951 (1983).

The ratification debates demonstrate the importance of this separation of powers design to the

founding generation. The argument was not whether

to separate power, but whether the proposed constitution separated power enough. Federalist No. 48, supra at 308 (James Madison). Fearing that the mere

prohibition of one branch exercising the powers of another was insufficient, the Framers designed a system

that vested each branch with the power necessary to

resist encroachment by another. Id. Madison argued

that what the anti-federalists saw as a violation of

separation of powers was in fact the checks and balances necessary to enforce separation. Federalist No.

51, supra, at 322-23 (James Madison).

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This Court has also recognized that separation of

powers is a core structural principal of the Constitution that protects personal liberty. Boumediene v.

Bush, 553 U.S. 723, 797 (2008); Metro. Wash. Airports

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

501 U.S. 252, 272 (1991); Mistretta, 488 U.S. at 380.

Because of this structural separation of powers,

Congress does not have authority to delegate its own

power to another entity. Gundy, 139 S.Ct. at 2121

(plurality opinion), 2133 (Gorsuch, J., dissenting);

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 529 (1935). As John Locke notes, legislatures have the power to make laws, not legislators.

John Locke, THE TWO TREATISES OF CIVIL GOVERNMENT, Book II, §141(Hollis Ed. (1764)) (Liberty Fund

Online Library at 156). Were it otherwise, the entire

structure of separated power would fall like a house of

cards as one branch delegated (or usurped) the power

of another. See Metro. Washington Airports Auth., 501

U.S. 274, n. 20.

The structural separation of powers is not the only

part of the Constitution that requires a Non-Delegation Doctrine. That doctrine is also required by the

Vesting Clause and its attendant restrictions on the

manner in which Congress can exercise the legislative

power.

B. Non-Delegation is required by the Vesting Clause

The Founders cemented the rule of separation of

powers into the structure of the Constitution with the

Vesting Clauses. Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. at 67-68, 74 (Thomas, J., concurring

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in the judgment); Wellness Int’l Network, Ltd. v. Shariff, 575 U.S. 665, 714 (2015) (Thomas, J., dissenting).

As Justice Thomas has noted, “the Constitution does

not speak of ‘intelligible principles.’ Rather, it speaks

in much simpler terms: ‘All legislative Powers herein

granted shall be vested in a Congress.’” Whitman v.

American Trucking Ass’ns, Inc., 531 U.S. 457, 487

(2001) (Thomas, J., concurring). There is a clear textual command in Article I, section 1 that any legislative power authorized by the Constitution is vested in

Congress. Congress can no more authorize another

branch of government (or a private party, for that

matter) to exercise legislative power than it could delegate the judiciaries’ power to hear cases and controversies away from the courts, see Stern v. Marshall,

564 U.S. 462, 482-83 (2011), or assign to itself the

President’s power to execute the laws, see Bowsher v.

Synar, 478 U.S. 714, 733-34 (1986); see also Dep’t of

Transp., 575 U.S. at 68 (Thomas, J., concurring in the

judgment) (“When the Government is call upon to perform a function that requires an exercise of legislative,

executive, or judicial power, only the vested recipient

of that power can perform it.”); Clinton v. City of New

York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring) (“Abdication of responsibility is not part of the

constitutional design).

Article I not only vests legislative power in the

Congress, it also limits how that power may be exercised. The legislative branch is divided into two

houses. A proposed law must be passed by both

houses, and then it must be presented to the President

for approval or veto. U.S. Const., Art I, §§ 1, 7; Dep’t

of Transp., 575 U.S. at 68 (Thomas, J., concurring in

the judgment); Chadha, 462 U.S. at 945.

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The Constitution intentionally made it difficult to

exercise legislative power. The Framers and Ratifiers

understood that the power to legislate was the power

most dangerous to individual liberty. Gundy, 139

S.Ct. at 2133 (Gorsuch, J., dissenting). As Justice

Gorsuch noted, the Framers “went to great lengths to

make lawmaking difficult.” Id. Efficiency was definitely not the goal in the design of the lawmaking

power.

The requirements of bicameralism and presentment are interdependent in the design to restrain the

legislative power. Chadha, 462 U.S. at 948-49. In

slowing the legislative process, the framers sought to

require careful consideration before a new law could

be enacted. Id.; see Gundy, 139 S.Ct. at 2135 (Gorsuch, dissenting).

If Congress could delegate its lawmaking power to

an executive agency, all these constitutional restrictions on the enactment of new laws would be rendered a nullity. Laws would be enacted without the

need for broad agreement by two different politically

accountable legislative bodies. Gone too is the feature

that required agreement from legislative bodies accountable to different political majorities – states in

the case of the Senate and congressional districts in

the case of the House of Representatives. Instead, an

unaccountable executive agency is left free to fashion

new law without any oversight or accountability. The

Constitution’s limitation on the manner of enacting

laws demands a robust Nondelegation Doctrine.

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II.

The Statutory Scheme at Issue Raises Serious Non-Delegation Concerns.

In Calder v. Bull, Justice Chase noted that “a law

that takes property from A and gives it to B … is

against all reason and justice,” and the court could

there not presume that the Legislature authorized

such an action. Calder v. Bull, 3 U.S. 386, 388 (1798).

Although this Court authorized (in a decision that has

rightly drawn intense criticism) a government entity’s

use of eminent domain to take private property from

one citizen and award it to another, there was at least

a fig leaf rationale that such a taking was based on

the legislature’s judgment that there was a public use

involved in such a transaction. Kelo v. City of New

London, Connecticut, 545 U.S. 469, 488-89 (2005).

Here, however, power has been delegated to the

Federal Energy Regulatory Commission to formulate

the rules for when a natural gas pipeline should be

permitted. The Commission used that broad delegation to make an additional delegation, this time to a

private company, to exercise the government’s power

of eminent domain. The power that the Commission

has granted to this private entity allows for it to take

the property of a private citizen (like the petitioners

here) and award it to itself. While the pipeline company might, under the discredited Kelo decision, argue that the Commission made a determination that

the taking of the property of A and awarding it to B

served a public purpose, there is no legislative determination supporting such a claim.

Individual rights in the ownership of private property are the “essence of constitutional liberty.” Johnson v. United States, 333 U.S. 10, 17 n.8 (1948). In a

word, they are “fundamental.” In re Kemmler, 136

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U.S. 436, 448 (1890). Justice Washington noted that

rights that are “fundamental” are those that belong

“to the citizens of all free governments.” Corfield v.

Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823). He

listed individual rights in property as one of the primary categories of fundamental rights. Id.

It is beyond strange, therefore, to assume that

Congress would delegate power to an executive

agency to delegate the power of eminent domain to a

private company. The power delegated to the agency

is itself broad and undefined and therefore constitutionally problematic, bu the derivative delegation of

that dubious power to a private entity makes the unconstitutionality all the more clear.

See, e.g.,

Schechter Poultry, 295 U.S. at 537; Dept of Transp.,

575 U.S. 60-61 (Alito, J., concurring). The legality of

this frightfully expansive delegation of lawmaking authority should be reviewed by a court. Requiring the

petitioners to present their arguments instead to the

Commission assumes that Congress also delegated

the power of the judiciary to an executive agency.

Such an assumption cannot stand.

CONCLUSION

Procedures set down in the Constitution for exercise of Congressional power were deliberately structured to produce “conflicts, confusion, and discordance” as a means of assuring “full, vigorous, and open

debate on the great issues affecting the people and to

provide avenues for the operation of checks on the exercise of governmental power.” Bowsher v. Synar, 478

U.S. at 722. Efficiency was not the goal in this design.

Free Enterprise Fund v. Pub. Accounting Board Oversight Bd., 561 U.S. 477, 499 (2010). No matter how

inefficient, “the power to enact statutes may only “be

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exercised in accord with a single, finely wrought and

exhaustively considered, procedure.” Chadha, 462

U.S. at 951; Clinton v. City of New York, 524 U.S. at

439-40. Congress may not circumvent this “finely

wrought” procedure by simply delegating lawmaking

power to an administrative agency. Nor may an executive agency, pursuant to such an unlawful delegation, exacerbate the constitutional problem by further

delegation to a private entity. The Court should grant

the petition for writ of certiorari.

October 2022

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Constitutional Counsel Group

174 W. Lincoln Ave. #620

Anaheim, CA 92805

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae