Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

IN THE

Supreme Court of the United States

_______

LOPER BRIGHT ENTERPRISES; ET AL.,

PETITIONERS,

v.

GINA RAIMONDO, in her official capacity as Secretary

of Commerce; 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 NATIONAL

RIGHT TO WORK LEGAL DEFENSE

FOUNDATION, INC., IN SUPPORT OF

PETITIONERS

_______

W. JAMES YOUNG

Counsel of Record

JAMES C. DEVEREAUX

BLAINE L. HUTCHINSON

c/o NATIONAL RIGHT TO WORK LEGAL

DEFENSE FOUNDATION, INC.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

wjy@nrtw.org

Counsel for Amicus Curiae

December 2022

-iQUESTIONS PRESENTED

The Magnuson-Stevens Act (MSA) governs fishery

management in federal waters and provides that the

National Marine Fisheries Service (NMFS) may

require vessels to “carry” federal observers onboard to

enforce the agency’s myriad regulations. Given that

space onboard a fishing vessel is limited and valuable,

that alone is an extraordinary imposition. But in three

narrow circumstances not applicable here, the MSA

goes further and requires vessels to pay the salaries of

the federal observers who oversee their operations

—although, with the exception of foreign vessels that

enjoy the privilege of fishing in our waters, the MSA

caps the costs of those salaries at 2-3% of the value of

the vessel’s haul. The statutory question underlying

this petition is whether the agency can also force a

wide variety of domestic vessels to foot the bill for the

salaries of the monitors they must carry to the tune of

20% of their revenues.

Under well-established

principles of statutory construction, the answer would

appear to be no, as the express grant of such a

controversial power in limited circumstances forecloses

a broad implied grant that would render the express

grant superfluous. But a divided panel of the D.C.

Circuit answered yes under Chevron on the theory that

statutory silence produced an ambiguity that justified

deferring to the agency.

The questions presented are:

1. Whether, under a proper application of

Chevron, the MSA implicitly grants NMFS the power

to force domestic vessels to pay the salaries of the

monitors they must carry.

-ii2. 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.

- iii TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

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

INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Chevron violates the separation of powers and

basic due process principles, and should be

overruled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. This Court’s application of Chevron creates

inconsistencies among the lower courts . . . . . . 11

A. This Court and the lower courts are at

odds regarding Chevron’s application. . . . . 12

B. This Court applies other forms of deference

where Chevron would appear to apply by

its terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. Deference to administrative agencies like

the NLRB is particularly unjustified . . . . . 19

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

- iv TABLE OF AUTHORITIES

Cases

Page

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998) . . . . . . . . . . . . . . . . . . . . . . 17

Auciello Iron Works, Inc. v. NLRB,

517 U.S. 781 (1996) . . . . . . . . . . . . . . . . . . . . . . 17

Basic Inc. v. Levinson,

485 U.S. 224 (1988) . . . . . . . . . . . . . . . . . . . . . . 18

Buffington v. McDonough,

143 S.Ct. 14 (2022). . . . . . . . . . . . . . . . . . . . . . . 24

Carlson v. Landon,

342 U.S. 524 (1952) . . . . . . . . . . . . . . . . . . . . . . 18

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

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . 1-24

City of New York v. FCC,

486 U.S. 57 (1988) . . . . . . . . . . . . . . . . . . . . . . . 19

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

575 U.S. 43 (2015) . . . . . . . . . . . . . . . . . . . 6, 7, 10

Egan v. Delaware River Port Auth.,

851 F.3d 263 (3d Cir. 2017) . . . . . . . . . . . . . . . . 11

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,

525 U.S. 155 (1999) . . . . . . . . . . . . . . . . . . . . . . 18

-vTABLE OF AUTHORITIES-CONT.

Page

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) . . . . . . . . . . . . . . . . . . . . . . 14

Encino Motorcars, LLC v. Navarro,

780 F.3d 1267 (9th Cir. 2015) . . . . . . . . . . . . . . 14

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) . . . . . . . . . . . . . . . . . . . . . . . 7

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . 14-15

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives,

140 S.Ct. 789 (2020). . . . . . . . . . . . . . . . . . . . . . 14

Gutierrez-Brizuela v. Lynch,

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

Gundy v. United States,

139 S.Ct. 2116 (2019). . . . . . . . . . . . . . . . . . . . 6-7

Harris v. Quinn,

573 U.S. 616 (2014) . . . . . . . . . . . . . . . . . . . . . . . 1

Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013) . . . . . . . . . . . . . . . 8

IAM v. NLRB,

133 F.3d 1012 (7th Cir. 1998) . . . . . . . . . . . . . . . 2

- vi TABLE OF AUTHORITIES-CONT.

Page

Janus v. AFSCME, Council 31,

138 S.Ct. 2448 (2018). . . . . . . . . . . . . . . . . . . . . . 1

Kennedy v. Butler Fin. Sols., LLC,

2009 WL 290471 (N.D. Ill. Feb. 4, 2009) . . . . . . 9

King v. Burwell,

576 U.S. 473 (2015) . . . . . . . . . . . . . . . . 11, 14, 15

King v. Burwell,

759 F.3d 358 (4th Cir. 2014) . . . . . . . . . . . . . . . 15

Knox v. SEIU, Local1000,

567 U.S. 298 (2012) . . . . . . . . . . . . . . . . . . . . . . . 1

Kolovrat v. Oregon,

366 U.S. 187 (1961) . . . . . . . . . . . . . . . . . . . . . . 18

Loos v. BNSF Ry. Co.,

139 S.Ct. 893 (2019). . . . . . . . . . . . . . . . . . . . . . 13

Loos v. BNSF Ry. Co.,

865 F.3d 1106 (8th Cir. 2017) . . . . . . . . . . . . . . 13

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . 8

Melendez v. United States,

518 U.S. 120 (1996) . . . . . . . . . . . . . . . . . . . . . . 18

- vii TABLE OF AUTHORITIES-CONT.

Page

Michigan v. EPA,

135 S.Ct. 2699 (2015). . . . . . . . . . . . . . . . . . . . . . 6

Mistretta v. U.S.,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . 18

NLRB v. Kentucky River Cmty. Care, Inc.,

532 U.S. 706 (2001) . . . . . . . . . . . . . . . . . . . . . . 17

NLRB v. Noel Canning,

573 U.S. 513 (2014) . . . . . . . . . . . . . . . . . . . . . 4-5

NLRB v. Transp. Mgmt. Corp.,

462 U.S. 393 (1983) . . . . . . . . . . . . . . . . . . . . . . 17

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

Internet Servs.,

545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . 3, 9

New York v. FERC,

535 U.S. 1 (2002) . . . . . . . . . . . . . . . . . . . . . 15, 18

Padilla-Caldera v. Holder,

637 F.3d 1140 (10th Cir. 2011) . . . . . . . . . . . . . . 9

Pereira v. Sessions,

138 S.Ct. 2105 (2018). . . . . . . . . . . . . . . . . 8-9, 13

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) . . . . . . . . . . . . . . . . . . . . . . 4, 8

- viii TABLE OF AUTHORITIES-CONT.

Page

Pirlott v. NLRB,

522 F.3d 423 (D.C. Cir. 2008) . . . . . . . . . . . . . . . 2

Reno v. Flores,

507 U.S. 292 (1993) . . . . . . . . . . . . . . . . . . . . . . 18

Sanchez-Llamas v. Oregon,

548 U.S. 331 (2006) . . . . . . . . . . . . . . . . . . . . . . 18

Sumitomo Shoji America, Inc. v. Avagliano,

457 U.S. 176 (1982) . . . . . . . . . . . . . . . . . . . . . . 18

Transmission Access Pol’y Study Grp. v. FERC,

225 F.3d 667 (D.C. Cir. 2000) . . . . . . . . . . . . . . 15

TSC Indus., Inc. v. Northway, Inc.,

426 U.S. 438 (1976) . . . . . . . . . . . . . . . . . . . . . . 19

UC Health v. NLRB,

803 F.3d 669 (D.C. Cir. 2015) . . . . . . . . . . . 20, 21

UFCW, Local 1036 v. NLRB,

307 F.3d 760 (9th Cir. 2002) . . . . . . . . . . . . . . . . 2

U.S. v. LaBonte,

520 U.S. 751 (1997) . . . . . . . . . . . . . . . . . . . 15, 18

U.S. v. Mead Corp.,

533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . 14, 21

- ix TABLE OF AUTHORITIES-CONT.

Page

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . 5

Federal Constitutions, Statutes, & Rules

U.S. Constitution

Article I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 23

Article III . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 10, 22

Article III, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Supreme Court Rule 37 . . . . . . . . . . . . . . . . . . . . . . . 1

8 U.S.C. § 1252(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 18

29 U.S.C. § 141 et seq. . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Bamzai, Aditya, The Origins of Judicial Deference to

Executive Interpretation, 128 Yale L. J. 908

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Barnett, Kent & Christopher J. Walker, Chevron in

the Circuit Courts,

116 Mich. L. Rev. 1 (2017). . . . . . . . . 4, 12, 15, 16

Brown, Rebecca L., Separated Powers and Ordered

Liberty,

139 U. Pa. L. Rev. 1513 (1991) . . . . . . . . . . . . . . 5

-xTABLE OF AUTHORITIES-CONT.

Page

Dal Bo, Ernesto, Regulatory Capture: A Review,

22 Oxford Rev. Econ. Pol’y 203 (2006) . . . . . . . 22

Eskridge, William N., Jr. & Lauren E. Baer, The

Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from

Chevron to Hamdan,

96 Geo. L. J. 1083 (2008) . . . . . . . 11-12, 13, 16-19

Ginsburg, Douglas H., & Steven Menashi, Our

Illiberal Administrative Law,

10 N.Y.U. J.L & Liberty 475 (2016) . . . . . . . 7, 20

Hamburger, Philip, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) . . . . . . . . 9, 10

Hamburger, Philip,

Law and Judicial Duty (2008) . . . . . . . . . . . 8, 22

Hickman, Kristin & Richard Pierce, Jr.,

Administrative Law Treatise §§ 3.5.6, 3.6.10 (6th

ed. updated Nov. 1, 2021) . . . . . . . . . . . . . . . . . 13

Kavanaugh, Brett M., Fixing Statutory

Interpretation,

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

Lawson, Gary, Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) . . . . . . . . . . . . . . . . . . 6

- xi TABLE OF AUTHORITIES-CONT.

Page

Manning, John F., Lawmaking Made Easy,

10 Green Bag 2d 191 (2007) . . . . . . . . . . . . . . . . 7

Posner, Richard A., Theories of Economic Regulation,

5 Bell J. Econ. & Mgmt. Sci. 335 (1974) . . . . . . 22

State Necessity Considered as a Question of Law,

6 (London:1766) . . . . . . . . . . . . . . . . . . . . . . 22-23

Stigler, George J., The Theory of Economic

Regulation,

2 Bell J. Econ. & Mgmt. Sci. 3 (1971) . . . . . . . . 22

Sunstein, Cass R., Law and Administration After

Chevron,

90 Colum. L. Rev. 2071 (1990) . . . . . . . . . . . . . . 8

The Federalist (Michael L. Chadwick ed., 1987)

No. 10 (J. Madison) . . . . . . . . . . . . . . . . . . . . . . 22

No. 47 (J. Madison) . . . . . . . . . . . . . . . . . . . . . . . 5

No. 51 (J. Madison) . . . . . . . . . . . . . . . . . . . . . . . 4

No. 78 (A. Hamilton) . . . . . . . . . . . . . . . . . . 10, 23

No. 84 (A. Hamilton) . . . . . . . . . . . . . . . . . . . . . . 5

-1INTEREST OF THE AMICUS CURIAE

Since 1968, the National Right to Work Legal

Defense Foundation, Inc.,1 has been the nation’s

leading litigation advocate for employee free choice

concerning unions. Foundation staff attorneys have

represented workers in almost all of the compulsory

union fee cases considered by this Court, most recently

in Janus v. AFSCME Council 31, 138 S. Ct. 2448

(2018), Harris v. Quinn, 134 S. Ct. 2618 (2014), and

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012).2

The Foundation’s particular interest in this case

arises because its staff attorneys frequently represent,

and are currently representing, private-sector

employees whose free choice to refrain from forced

union association and monopoly bargaining depends

upon the National Labor Relations Board’s (“NLRB” or

“Board”) proper implementation of the National Labor

Relations Act (“NLRA”), 29 U.S.C. § 141 et seq. In

several cases involving the rights of employees subject

to the NLRA, U.S. Circuit Courts of Appeals have

applied the deference mandated by Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984),

1

Supreme Court Rule 37 statement: Petitioner’s counsel

has lodged with the Clerk a letter granting blanket consent to the

submission of amicus briefs. Respondents’ counsel was timely

notified and consented to the filing of this brief. Amicus certifies

that no party’s counsel authored this brief in whole or part, and

amicus alone funded its preparation and submission.

2

See Foundation Supreme Court Cases, http://www.nrtw.

org/en/foundation-cases.htm (last visited 12 Dec. 2022).

-2in reviewing NLRB decisions on appeal.3 For that

reason, the fate of the Chevron doctrine is important to

the Foundation’s mission and those it serves.

The Foundation submits this brief to urge this

Court to grant the Petition to consider whether the

Chevron doctrine should be overruled or limited. The

Foundation takes no position on the First Question

Presented, except to note that narrowly considering

only the first Question would perpetuate the

deficiencies in the Chevron doctrine’s constitutional

underpinnings and application discussed herein.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Court need not decide here whether

administrative agencies are entitled to judicial

deference under Chevron. As Petitioners forcefully

argue, MSA’s plain meaning unambiguously bars

NMFS’s statutory construction. Thus, this Court

should reverse the D.C. Circuit’s decision. See Petition

(“Pet.”) 16-28. But if this Court determines Chevron

deference grants NMFS the massive power to alter a

federal statute based upon “ambiguity” divined from

silence to shift enforcement costs to the regulated, then

the Court should confront whether Chevron “is overdue

for ... a reboot or an overruling.” Id. at 29-33.

3

See, e.g., Pirlott v. NLRB, 522 F.3d 423, 433-34 (D.C. Cir.

2008) (“The general chargeability issue is a matter for the Board

to decide in the first instance.”); UFCW, Local 1036 v. NLRB, 307

F.3d 760, 766 (9th Cir. 2002) (en banc) (“Courts are required to

defer to the NLRB on statutory interpretation under Chevron”);

IAM v. NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998).

-3The second Question Presented explicitly asks the

Court to reconsider Chevron. Id. Amicus agrees that

it should. Chevron requires courts to uphold an

agency’s interpretation of a statute—even if not the

best interpretation—so long as that interpretation is

reasonable. This approach forces courts to defer to

agencies on legal questions, thus requiring the

judiciary to shirk its duty to say what the law is. Time

and again, Chevron forces judges to uphold inter

pretations that they believe are wrong. Indeed,

“Chevron teaches that a court’s opinion as to the best

reading of an ambiguous statute an agency is charged

with administering is not authoritative.” Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 983 (2005). This approach significantly shifts

power from the judiciary to administrative agencies

and violates the separation of powers.

Chevron also violates basic due process principles

because it gives the federal government an improper

advantage by requiring deference to an agency’s

“reasonable” interpretation, in effect tipping the scales

of justice.

Worse still, this Court and the lower courts are

misaligned on Chevron’s application. This Court has

carved away at Chevron’s reach, providing an everexpanding list of exceptions to its application. The

Court has also applied other deference doctrines when

Chevron would seemingly apply. And scholarly studies

demonstrate that this Court often ignores Chevron,

while the lower courts routinely apply it.

This has generated confusion among the lower

courts about Chevron’s application, confusion that

-4warrants review. Ultimately, “[i]f Chevron matters, we

should consider whether it is functioning properly.”

Kent Barnett & Christopher J. Walker, Chevron in the

Circuit Courts, 116 Mich. L. Rev. 1, 71 (2017). But

there is no reason Chevron should continue to govern

lower courts while this Court shuns it. The Court

should grant the petition, reconsider Chevron, and

reverse the decision below.

ARGUMENT

I.

Chevron violates the separation of powers

and basic due process principles, and should

be overruled.

The Framers constructed the Constitution to

safeguard the people’s liberty by separating

governmental powers.4 This design emerged from

“centuries of political thought and experiences,” Perez

v. Mortg. Bankers Ass’n, 575 U.S. 92, 116 (2015)

(Thomas, J., concurring) (citation omitted), that taught

the Framers that delegating to separate federal

branches limited, specified, and distinct powers would

protect the republic and its citizens better than any

enumeration of rights ever could.5

Hamilton

4

See The Federalist No. 51 at 283 (Michael L. Chadwick

ed. 1987) (J. Madison) (“In the compound republic of America, the

power surrendered by the people is first divided between two

distinct governments, and then the portion allotted to each

subdivided among distinct and separate departments. Hence a

double security arises to the rights of the people”).

5

NLRB v. Noel Canning, 573 U.S. 513, 570-71 (2014)

(continued...)

-5recognized from the outset that the separation of

powers was the primary weapon to protect individual

liberty against a tyrannical federal government: “[T]he

Constitution is itself, in every rational sense, and to

every useful purpose, A BILL OF RIGHTS.” The

Federalist No. 84 at 466 (A. Hamilton). Indeed,

abandonment of separation of powers, the Framers

knew, would lead directly to the “loss of due process

and individual rights.”6 Chevron deference is anathema to this design and undermines individual

liberty. Thus, this Court should abandon it.

1. When the people ratified the Constitution, they

delegated “[a]ll” legislative power to Congress, not

some. “All.”7 Ideally, Article I’s plain meaning would

prevent the legislative branch from sub-delegating its

5

(...continued)

(Scalia, J., concurring) (“[T]he Constitution’s core, governmentstructuring provisions are no less critical to preserving liberty

than are the later adopted provisions of the Bill of Rights. Indeed,

so convinced were the Framers that liberty of the person inheres

in structure that at first they did not consider a Bill of Rights

necessary”) (cleaned up).

6

Rebecca L. Brown, Separated Powers and Ordered

Liberty, 139 U. Pa. L. Rev. 1513, 1538 (1991); see also The

Federalist No. 47 at 260-61 (J. Madison) (“No political truth is...

stamped with the authority of more enlightened patrons of liberty”

than dividing the powers of government because “[t]he

accumulation of all powers, legislative, executive, and judiciary in

the same hands ... may justly be pronounced the very definition of

tyranny.”).

7

See U.S. Const. art. I, § 1; Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472 (2001) (“Article I, § 1... permits no

delegation of those powers”) (citations omitted).

-6legislative power to another branch.8 Even so, this

Court has rarely policed that line. Dep’t of Transp. v.

Ass’n of Am. R.Rs., 575 U.S. 43, 84 (2015) (Thomas, J.,

concurring).

Chevron is the inevitable consequence of

abandoning Article I’s text. This Court created

Chevron deference based on a legal fiction, assuming

Congress implicitly delegates legislative power through

ambiguous or nonexistent statutory language so that

an administrative agency can make legislative rules.9

The effect is that a law’s meaning is never fixed but

becomes a malleable standard that the executive

branch can change on a dime.

The Chevron regime undercuts the Framers’ design

to prevent excessive lawmaking, which the Framers

thought was one of the “diseases to which our

governments are most liable.” Gundy, 139 S.Ct. at

2134 (footnote omitted). Article I requires a law to

“win the approval of two Houses of Congress— elected

at different times, by different constituencies, and for

different terms in office—and either secure the

President’s approval or obtain enough support to

8

See Gundy v. United States, 139 S.Ct. 2116, 2133 (2019)

(Gorsuch, J., dissenting); see also Gary Lawson, Delegation and

Original Meaning, 88 Va. L. Rev. 327, 336-37 (2002).

9

See Chevron, 467 U.S. at 844; see also Michigan v. EPA,

135 S.Ct. 2699, 2713 (2015) (Thomas, J., concurring) (“Statutory

ambiguity ... becomes an implicit delegation of rule-making

authority, and that authority is used not to find the best meaning

of the text, but to formulate legally binding rules to fill in gaps

based on policy judgments made by the agency rather than

Congress”).

-7override his veto.” This gauntlet, the Framers thought,

was a “bulwark[ ] of liberty.” Id.10

When the judicial branch no longer enforces this

framework, and makes lawmaking easy through

congressional delegation, the regulated public is

susceptible to having life, liberty, or property taken

without fair notice. A fundamental tenet of due

process requires that laws “which regulate persons or

entities must give fair notice of conduct that is

forbidden or required.” FCC v. Fox Television Stations,

Inc., 567 U.S. 239, 253 (2012) (citations omitted). A

punishment will thus violate due process when a

“regulation under which it is obtained fails to provide

a person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.” Id.

(cleaned up). Yet Chevron upends this fundamental

principle, because an executive agency can decide what

an ambiguous law means after a person has acted and

hail that person into court.

2. Chevron likewise violates Article III and

creates serious due process problems. Judicial review

is essential to the broader “liberal tradition, which is

the dominant tradition in American constitutional law,

‘emphasiz[ing] limited government, checks and

balances, and strong protection of individual rights.’”

Douglas H. Ginsburg & Steven Menashi, Our Illiberal

10

Indeed, it is a feature and not a bug of our constitutional

structure that laws are hard to enact. See John F. Manning,

Lawmaking Made Easy, 10 Green Bag 2d 191, 202 (2007); see also

Ass’n of Am. R.Rs., 575 U.S. at 60-61 (Alito, J., concurring).

-8Administrative Law, 10 N.Y.U.J.L. & Liberty 475, 477

(2016) (cleaned up).

The Framers thus entrusted judges with judicial

power under Article III. Thus, the familiar words of

the Great Chief Justice, John Marshall, echo to this

day: “[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). This

power, in turn, came with a judicial duty to “exercise

its independent judgment in interpreting and expounding upon the laws.” Perez, 575 U.S. at 118-19

(Thomas, J., concurring); see also Philip Hamburger,

Law and Judicial Duty 316-26 (2008).

Yet Chevron—which often requires judges to defer

to an agency’s judgment on questions of law—forces

judges to shirk this duty. Unsurprisingly, scholars

have described Chevron deference as “counterMarbury.” Cass R. Sunstein, Law and Administration

After Chevron, 90 Colum. L. Rev. 2071, 2074-75 (1990).

Under Chevron, judges do not and are not permitted to

“say what the law is.” Instead, this duty is abdicated

to administrative agencies, violating the separation of

powers.11

The Federal judiciary has virtually

abandoned its duty to check the legislative and

executive branches. Federal courts reflexively defer to

agencies under Chevron and give one party an

advantage over the other in litigation. See Pereira v.

Sessions, 138 S.Ct. 2105, 2120-21 (2018) (Kennedy, J.,

11

See, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087

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

must accept that construction under Chevron, even if we believe

the agency’s reading is not the best statutory interpretation”).

-9concurring); see also Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187, 1209-10 (2016).

This abandonment of judicial duty has real effects.

For one, it undermines our legal system’s political

legitimacy.12 Frequently, Chevron forces judges to

uphold interpretations they believe to be wrong.13 And

sometimes courts are required to uphold interpretations previously rejected.14 In fact, “Chevron

teaches that a court’s opinion as to the best reading of

an ambiguous statute an agency is charged with

administering is not authoritative.” Brand X Internet

Servs., 545 U.S. at 983.

Chevron thus significantly shifts power from the

judiciary to administrative agencies. When agencies

interpret the law, they exercise “[t]he judicial Power of

the United States.” Art. III, § 1. But Article III vests

“[t]he judicial Power of the United States” in the

Federal courts alone. That division of power was

12

See Hamburger, Chevron Bias, id. at 1236

(“[I]ndependent judgment of unbiased judges is the basis of the

government’s political legitimacy ... especially [in] those [cases]

concerning the power of government or the rights of the people, it

is essential that the people have confidence that the judges are not

biased toward government, but are exercising independent

judgment”) (footnote omitted).

13

See, e.g., Kennedy v. Butler Fin. Sols., LLC, 2009 WL

290471 *4 (N.D. Ill. Feb. 4, 2009) (“The FTC’s regulation strikes

the Court as reasonable, though perhaps not the best

interpretation of the law”).

14

See, e.g., Padilla-Caldera v. Holder, 637 F.3d 1140,

1147-52 (10th Cir. 2011) (holding that under Chevron, the court is

obligated to discard its earlier statutory interpretation and defer

to the agency’s).

-10intentional. The Framers believed that “the general

liberty of the people can never be endangered ... so long

as the judiciary remains truly distinct from both the

legislature and Executive.” The Federalist No. 78 at

421 (A. Hamilton). Chevron warps this scheme and

invites executive agencies to take on the role of

independent judges. Yet neither Congress nor the

courts have constitutional authority to transfer judicial

power to agencies. See Aditya Bamzai, The Origins of

Judicial Deference to Executive Interpretation, 128

Yale L. J. 908 (2017). Indeed, the Constitution does

not contemplate such “undifferentiated governmental

power.” Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S.

at 67 (Thomas, J., concurring in judgment) (internal

quotation marks omitted).

In addition to violating the separation of powers,

Chevron violates basic due process principles. As thenJudge Gorsuch observed, “[t]ransferring the job of

saying what the law is from the judiciary to the

executive unsurprisingly invites the very sort of due

process (fair notice) and equal protection concerns the

[F]ramers knew would arise if the political branches

intruded on judicial functions.” Gutierrez-Brizuela v.

Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch,

J., concurring).15

Chevron gives the federal government an unfair

advantage by tipping the scales in its favor. Any

interpretation—even if not the best, most likely, or

most sensible interpretation—will be upheld by courts

15

See also Hamburger, Chevron Bias, 84 Geo. Wash. L.

Rev. at 1239 (“Precedents such as Chevron ... require judges to

give up their role as judges and ... violate the due process of law”).

-11so long as it is “reasonable.” And reasonable is defined

very generously. This arrangement gives the federal

government a clear advantage in nearly every case.

See Hamburger, supra at 1250 (“[J]udges defer to

administrative interpretation, thus often engaging in

systematic bias for the government and against other

parties”). Chevron requires courts to defer to an

agency’s interpretation even when the agency itself is

a litigant in the case at hand. In no other context does

a court simply defer to one of the parties.

At bottom, Chevron is incompatible with the

Constitution’s most fundamental structural

safeguards. It is “contrary to the roles assigned to the

separate branches of government” and “require[s]

[judges] at times to lay aside fairness and [their] own

best judgment and instead bow to the nation’s most

powerful litigant, the government, for no reason other

than that it is the government.” Egan v. Delaware

River Port Auth., 851 F.3d 263, 278 (3d Cir. 2017)

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

should grant the petition, revisit Chevron, and reverse

the decision below.

II. This Court’s application of Chevron creates

inconsistencies among the lower courts.

In King v. Burwell, 576 U.S. 473 (2015), this Court

stated that “[w]hen analyzing an agency’s

interpretation of a statute, we often apply the two-step

framework announced in Chevron.” Id. at 485.

“Often,” however, appears to overstate this Court’s use

of Chevron. See William N. Eskridge, Jr. & Lauren E.

Baer, The Continuum of Deference: Supreme Court

-12Treatment of Agency Statutory Interpretations from

Chevron to Hamdan, 96 Geo. L. J. 1083, 1124-25

(2008). A study of cases reveals that this Court applied

the Chevron framework in barely more than a quarter

of the cases in which Chevron (by its own terms)

appears applicable. Id. Rather than applying Chevron

in those many cases, the Court has announced an

ever-expanding list of exceptions to Chevron and

employed many substitute deference doctrines in its

place.

Meanwhile, the circuit courts are nearly the

opposite in their application. Based on a similar study,

they apply the Chevron framework more than threequarters of the time in which Chevron theoretically

should apply. Barnett & Walker, supra at 5-6. Put

simply, the Court’s Chevron jurisprudence has

generated confusion among the lower courts. This

confusion makes one thing clear: this Court should

revisit Chevron.

A. This Court and the lower courts are at

odds over Chevron’s application.

Generally, this Court applies Chevron far less

frequently than the circuit courts. As Petitioners aptly

explain, “This Court has shied away from giving

agencies deference under Chevron in recent years for

good reason.” Pet. 15. As one treatise explains, the

Court sometimes “gives Chevron powerful effect,”

sometimes “ignores Chevron,” and sometimes

-13“characterizes the Chevron test in strange and

inconsistent ways.”16

In another study, scholars analyzed this Court’s

deference cases from Chevron to Hamdan. They

identified 267 cases in which “the agency

interpretation was pursuant to a congressional

delegation of lawmaking authority,” cases where “the

Chevron two-step inquiry would theoretically govern.”

Eskridge & Baer, supra at 1124. Out of those 267

cases, the Court applied the Chevron framework in 76.

Id. That meant that the Court did “not apply the

Chevron framework in nearly three-quarters of the

cases where it would appear applicable.” Id. at 1125.

Indeed, this Court routinely overturns lower court

Chevron decisions without applying the Chevron

framework at all. In Loos v. BNSF Ry. Co., 139 S.Ct.

893 (2019), for example, this Court never mentioned

Chevron or its two-step process, even though the

Eighth Circuit applied it below. The Eighth Circuit

stopped at step one after concluding that the agency’s

interpretation deserved “no deference under Chevron,

because ‘the agency must give effect to the

unambiguously expressed intent of Congress.’” Loos v.

BNSF Ry. Co., 865 F.3d 1106, 1119 (8th Cir. 2017). It

is unclear, however, whether this Court agreed with

the Eighth Circuit’s Chevron analysis or something

16

Kristin Hickman & Richard Pierce, Jr., Administrative

Law Treatise §§ 3.5.6, 3.6.10 (6th ed. updated Nov. 1, 2021)

(surveying how the Court has treated Chevron in seemingly

eligible cases over the last decade); see also Pereira v. Sessions,

138 S.Ct. at 2121 (Alito, J., dissenting) (“I can only conclude that

the Court, for whatever reason, is simply ignoring Chevron”).

-14else entirely because the Court did not discuss Chevron

and simply analyzed the statute without identifying

any deference doctrine.

Similarly, in Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, the D.C. Circuit had held,

without hesitation, that Chevron applied when the

Bureau had reinterpreted a statute to define a bump

stock as a machine gun for purposes of criminal

prosecution. Justice Gorsuch, however, declared

Chevron out of bounds while agreeing that the case’s

interlocutory posture did not merit the Court’s

immediate review: “But at least one thing should be

clear. Contrary to the court of appeals’ decision in this

case, Chevron [ ] has nothing to say about the proper

interpretation of the law before us.” 140 S.Ct. 789

(2020) (Gorsuch, J., respecting the denial of certiorari).

In recent years, this Court has narrowed the

Chevron doctrine after reflexive applications of the

framework in circuit courts. For example, in Encino

Motorcars, LLC v. Navarro, the Court declined to apply

Chevron deference “where the regulation is

‘procedurally defective.’” 579 U.S. 211, 220 (2016)

(citing U.S. v. Mead Corp., 533 U.S. 218, 227 (2001)).

Below, however, the Ninth Circuit had “conduct[ed] the

familiar two-step inquiry to determine whether to defer

to the agency’s interpretation.” Encino Motorcars, LLC

v. Navarro, 780 F.3d 1267, 1271 (9th Cir. 2015).

And in Burwell, this Court invoked the major

questions doctrine, explaining that “‘[i]n extraordinary

cases, ... there may be reason to hesitate before

concluding that Congress has intended such an implicit

delegation.’” 576 U.S. at 485 (quoting FDA v. Brown &

-15Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).

It thus declined to apply the Chevron framework. The

Fourth Circuit, however, had not prepared for this

Chevron carveout. Instead, it “viewed the Act as

‘ambiguous and subject to at least two different

interpretations.’” Id. at 484 (citing King v. Burwell,

759 F.3d 358, 372 (4th Cir. 2014)). “The court [had]

therefore deferred to the IRS’s interpretation under

Chevron.” Id.

Still other decisions of this Court have ignored a

lower court’s Chevron application for unspecified forms

of deference. See New York v. FERC, 535 U.S. 1, 28

(2002) (“[W]e nevertheless conclude that the agency

had discretion to decline to assert such jurisdiction in

this proceeding in part because of the complicated

nature of the jurisdictional issues”); U.S. v. LaBonte,

520 U.S. 751, 757 (1997). The Second Circuit, before

the Court’s ruling in New York v. FERC, stated that

“the deferential standard of Chevron ... governs our

review of FERC’s interpretation of [the statute].”

Transmission Access Pol’y Study Grp. v. FERC, 225

F.3d 667, 687 (D.C. Cir. 2000).

While this Court has disregarded or narrowed the

Chevron doctrine, lower courts apply Chevron regularly

and expansively. Indeed, a 2017 study surveying

Chevron in the circuit courts analyzed 1,558 agency

interpretation cases. Of those, the circuit courts

applied the Chevron framework in 1,166 cases, or

nearly three-quarters. Barnett & Walker, supra at 32.

“Consistent with prior studies, the vast majority of

agency interpretations (817 interpretations, or 70.0%)

made it to step two. And an even greater percentage of

-16interpretations that made it to step two (766

interpretations, or 93.8%) were upheld.” Id. at 33.

Because of this dichotomy, while “the choice to

apply Chevron deference may not matter that much at

the Supreme Court, it seems to matter in the circuit

courts.” Id. at 6. Such a scheme leaves this Court and

the lower courts at odds, as well as leaving the lower

courts at odds with each other. Furthermore, the 2017

study found that the circuit courts “varied considerably

as to ... [the] application of Chevron. Id. at 7.

This Court’s application—or rather, its nonapplication—of Chevron leaves the lower courts with

uncertain guidance. In the end, “[i]f Chevron matters,

we should consider whether it is functioning properly.”

Barnett & Walker, supra, 71. However, that Chevron

continues to be crucial in lower courts while this Court

shuns it is a serious conflict.

B. This Court applies other forms of

deference where Chevron would appear

to apply by its terms.

This Court often applies other deference doctrines

in many cases where Chevron appears to apply. And it

is often unclear why. The Court has explicitly applied

other deference standards in the context of labor,

immigration, treaties, sentencing, energy, securities,

communications, and other regulated industries.

Labor law cases, for example, often employ “Beth

Israel” deference, a “pre-Chevron test permitting

reasonable interpretations that are consistent with the

statute.” Eskridge & Baer, supra at 1090. While

somewhat similar to the Chevron framework, the Court

-17applied Beth Israel deference nearly 50 times after

Chevron was decided. Id. at 1107. And in most of those

cases, application of “Chevron would have been

appropriate.” Id. at 1108. This Court has repeatedly

employed Beth Israel to defer to the NLRB’s statutory

interpretations.17 Nowhere do those cases indicate

why they chose not to apply the Chevron framework.

Nor have scholars identified a principled explanation.

Some speculate that “[p]erhaps the most likely reason”

the Court applies Beth Israel deference is simply

because “specialized practices—such as labor ...

—prefer their particular deference precedents and

continue to cite them....” Eskridge & Baer, supra at

1108. But that provides little guidance to the lower

courts.

Immigration law also operates with a Chevron

alternative, employing a “reasonable foundation”

17

See, e.g., NLRB v. Kentucky River Cmty. Care, Inc., 532

U.S. 706, 711-12 (2001) (citing NLRB v. Transp. Mgmt. Corp., 462

U.S. 393, 402-403 (1983)) (“We find that the Board’s rule for

allocating the burden of proof is reasonable and consistent with

the Act, and we therefore defer to it”); Allentown Mack Sales &

Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998) (citations omitted)

(“Courts must defer to the requirements imposed by the Board if

they are ‘rational and consistent with the Act,’ [ ] and if the

Board’s ‘explication is not inadequate, irrational or arbitrary’”);

Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 787-88 (1996)

(citations omitted) (“To affirm its rule of decision in this case,

indeed, there is no need to invoke the full measure of the

‘considerable deference’ that the Board is due [ ] by virtue of its

charge to develop national labor policy, [ ] through interstitial

rulemaking that is ‘rational and consistent with the Act’”).

-18deference rule. Id.18 Treaty law instructs judges to

give “great weight” and “respect” to the executive

branch. 19 Sentencing law, too, has its own “significant

discretion” deference regime.20 This Court has even

applied “an unspecified but deferential mode of review

to the Sentencing Commission’s interpretation of its

Guidelines.” Eskridge & Baer, supra at 1108 (citing

Melendez v. United States, 518 U.S. 120, 129-30

(1996)).

Different deference standards apply in other

regulated industries as well. Those include energy, see

New York v. FERC, 535 U.S. at 28; securities law, see

Basic Inc. v. Levinson, 485 U.S. 224, 239 n.16 (1988)

18

See Reno v. Flores, 507 U.S. 292 (1993) (citing Carlson

v. Landon, 342 U.S. 524, 541 (1952)) (“Respondents contend that

the regulation goes beyond the scope of the Attorney General’s

discretion ... under 8 U.S.C. § 1252(a)(1). That contention must be

rejected if the regulation has a ‘reasonable foundation’ that is, if

it rationally pursues a purpose that it is lawful for the INS to

seek”).

19

See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 355

(2006)

(“In addition, ‘while courts interpret treaties for

themselves, the meaning given them by the departments of

government particularly charged with their negotiation and

enforcement is given great weight’”) (citing Kolovrat v. Oregon,

366 U.S. 187, 194 (1961)); El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155, 168 (1999) (“Respect is ordinarily due the

reasonable views of the Executive Branch concerning the meaning

of an international treaty”) (citing Sumitomo Shoji America, Inc.

v. Avagliano, 457 U.S. 176, 184-185 (1982)).

20

See, e.g., LaBonte, 520 U.S. at 757 (quoting Mistretta v.

U.S., 488 U.S. 361, 377 (1989) (“Congress has delegated to the

[Sentencing] Commission ‘significant discretion in formulating

guidelines’ for sentencing convicted federal offenders”).

-19(citing TSC Indus., Inc. v. Northway, Inc., 426 U.S.

438, 449 (1976)) (“[t]he SEC’s insights are helpful, and

we accord them due deference”); communications law,

see City of New York v. FCC, 486 U.S. 57, 64 (1988) (“it

has long been recognized that many of the

responsibilities conferred on federal agencies involve a

broad grant of authority to reconcile conflicting

policies”); and other regulated industries.

These legal fields all have unique deference

doctrines where Chevron should have fit the

definitional bill. Yet none delivers an instructive

formulation nor explains why Chevron was neither

applied nor addressed. But these cases are just the tip

of the iceberg. The Court has applied numerous other

deference regimes in a variety of circumstances. See,

e.g., Eskridge & Baer, supra at 1100 (collecting cases

applying Skidmore, Seminole Rock, and Curtiss-Wright

deference regimes as well as “consultative deference”

regimes in which the Court “relies on some input from

the agency” like an amicus brief “without invoking a

named deference regime,” and anti-deference regimes

like the rule of lenity). Such a disjointed scheme offers

little guidance to the lower courts.

C. Deference to administrative agencies like

the NLRB is particularly unjustified.

Chevron deference has allowed administrative

agencies like the NLRB to make federal law—

sometimes retroactively— for years based on political

considerations. One of the primary rationales for

Chevron deference is that agency “experts” are better

equipped than courts to determine the nation’s

evolving policy. See Chevron, 467 U.S. at 865. But the

-20lawmaking in which administrative agencies like the

NLRB engage is often not based on “expertise.”

Indeed, the definitions of labor law terms are

frequently legal rather than scientific questions. What

the NLRB engages in is not “expertise” so much as

political will. This puts the law’s status in constant

flux without going through the constitutionallyprescribed law-making process.

As two federal judges have highlighted, in many

cases, “the [agency’s] claim to expertise is entirely

fraudulent.” Ginsburg & Menashi, Our Illiberal

Administrative Law, 10 N.Y.U. J.L. & Liberty at 482

(footnote omitted). The NLRB is notorious for this,

where “the partisan majority ... routinely displaces the

previous majority’s psychological assertions about

what employer tactics do or do not coerce workers

when they are deciding whether to vote for union

representation.” Yet that claim to expertise is often “a

euphemism for policy judgments.” Although some

agency staff might have varying levels of technical

expertise, agency heads are political actors. Indeed,

“the agency’s ultimate decisions are made by the

experts’ political masters, who have sufficient

discretion that they can make decisions based upon

their own policy preferences, fearing neither that the

expert staff will not support them nor that a court will

undo their handiwork.” Id. at 482-83.

Take UC Health v. NLRB, 803 F.3d 669 (D.C. Cir.

2015), in which the D.C. Circuit upheld a Regional

Director’s authority to direct and certify a union

election although the NLRB itself did not have the

statutorily required quorum. Citing Chevron’s second

step, the majority found the term “quorum” was

-21ambiguous because the statute neither defined the

term nor spoke to the case’s exact and unlikely

circumstances. But instead of using traditional tools of

statutory analysis and construction, the majority

deferred to one litigant’s view of the law, even though

“the structure of the statute supports the [NLRB’s]

interpretation just as well as it might support UC

Health’s construction.” Id. at 675. Tie goes to the

home team.

Judge Silberman, dissenting, recognized the

NLRB’s statutory interpretation was “flatly”

unreasonable and incompatible with the statute. See

id. at 687. In finding the NLRB’s construction

unreasonable, the dissent cautioned, “[w]e must bear

in mind that even if we are following Chevron’s second

step, we are construing a Congressional act—the

second step is not open sesame for the Agency.” Id.

Yet, often, that is exactly how courts treat agency

interpretations.

To be sure, granting agencies like the NLRB

deference may prevent “ossification of large portions of

our statutory law.” U.S. v. Mead Corp., 533 U.S. 218,

247-48 (2001) (Scalia, J., dissenting). However, the

cost is not worth the reward. Besides imperiling our

constitutional structure, agency discretion (granted

deference by the courts) lends itself to temptations that

threaten individual liberty and legislative prerogative.

Simply put, agency deference undermines statutory

law; it does not protect it. Statutes mean little when

(government) litigants may alter them at will to fit

their interests.

-22Regulatory capture in particular genuinely

threatens the rule of law and undermines justifications

for agency deference. Regulatory capture occurs when

commercial, ideological, or political interests—be it by

an industry, profession, geographic area, or political

group—conscript a regulatory agency to implement a

preferred policy outcome.21 Agency capture permits

special interests outsized influence in the regulatory

process, or to borrow from Madison, regulation becomes

subject to the “mischiefs of faction.”22

Though

regulatory capture does not explain every incident of

agency action, the possibility of undue and

undemocratic influence predicted by this economic

theory warns against the deferential attitude Chevron

condones.

Deferring to special interests or factions violates

the first principle of neutrality Article III requires as

part of the exercise of judicial power. Hamburger, Law

and Judicial Duty 316-26 (2008). One early observer

noted the simplest definition of constitutional

government is “comprised in three words, government

by law.” State Necessity Considered as a Question of

21

Ernesto Dal Bo, Regulatory Capture: A Review, 22

Oxford Rev. Econ. Pol’y 203 (2006); George J. Stigler, The Theory

of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 13-17

(1971); Richard A. Posner, Theories of Economic Regulation, 5 Bell

J. Econ. & Mgmt. Sci. 335, passim (1974).

22

See The Federalist No. 10 (J. Madison) at 46 (explaining

faction as “a number of citizens, whether amounting to a majority

or a minority of the whole, who are united and actuated by some

common impulse of passion, or of interest, adverse to the rights of

other citizens, or to the permanent and aggregate interests of the

community”).

-23Law, 6 (London: 1766). In contrast, the exercise of

arbitrary, lawless power is the “erroneous will of one

man, or a few men, in whom the executive power

resides” which “is substituted instead of law.” Id.

Government by law protects against arbitrary

conduct benefitting the few able to leverage

government in their favor. Hamilton stressed the

importance of the judiciary in maintaining the law. He

explained “that inflexible and uniform adherence to the

rights of the Constitution, and of individuals, [i]s

indispensable in the courts of justice,” i.e., “a reliance

that nothing would be consulted but the constitution

and the laws.” See The Federalist No. 78 (A. Hamilton)

at 425. Deference to administrative agencies like the

NLRB via Chevron violates these principles and

prevents courts from serving as “an intermediate body”

that interprets the law as their “proper and peculiar

province.” Id. The regulated public bears the cost of

this to the benefit of the few.

At bottom, Chevron deference allows agencies

throughout the federal government—like the NLRB—

to change abruptly legal and policy positions on major

issues affecting the regulated public’s liberty. Agencies

have done so not by using the statute Congress passed,

but by using supposedly ambiguous statutory language

to instill and affectuate their political preferences,

enacted without going through the inconvenience of the

democratic processes prescribed by the Constitution.

This undermines a fundamental underpinning of the

rule of law and the Constitution’s separation of powers,

which requires that only Congress, acting through

Article I, change the law.

-24As Petitioner explains at greater length,“Nearly

four decades of judicial experience with Chevron have

demonstrated that courts are incapable of applying its

two-step Chevron framework in a consistent manner.”

Pet. 32. Chevron violates the separation of powers and

due process and continues to sow confusion in the

lower courts. Accordingly, the Court should revisit the

Chevron doctrine and put an end to this “atextual

invention by courts.” Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150

(2016). As Justice Gorsuch has colorfully observed,“No

measure of silence (on this Court’s part) and no

number of separate writings (on my part and so many

others) will protect [Americans]. At this late hour, the

whole [Chevron] project deserves a tombstone no one

can miss.” Buffington v. McDonough, 143 S.Ct. 14, 22

(2022) (Gorsuch, J., dissenting from the denial of

certiorari).

-25CONCLUSION

For the reasons stated above, the Court should

grant the petition and reverse the decision below.

Respectfully submitted,

W. JAMES YOUNG

Counsel of Record

JAMES C. DEVEREAUX

BLAINE L. HUTCHINSON

c/o NATIONAL RIGHT TO WORK LEGAL

DEFENSE FOUNDATION, INC.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

wjy@nrtw.org

Counsel for Amicus Curiae

December 2022