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

Supreme Court briefDec 15, 2022

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No. 22-451

IN THE

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, INC., ET AL.,

Petitioners,

GINA RAIMONDO,

SECRETARY OF COMMERCE, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Braden H. Boucek

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd.

Suite 104

Roswell, GA 30075

(770) 977-2131

Thomas R. McCarthy

Counsel of Record

J. Michael Connolly

Tiffany H. Bates

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

December 15, 2022

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF THE

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

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

I. Allowing agencies to design regulatory

programs and require regulated parties to

fund them beyond congressional appropriations

violates the separation of powers .......................... 4

II. This Court should overrule Chevron because

it violates the separation of powers and basic

principles of due process ........................................ 8

A. Chevron violates the separation of powers ...... 9

B. Chevron violates basic due process

principles......................................................... 12

CONCLUSION .......................................................... 16

TABLE OF AUTHORITIES

Cases

Buffington v. McDonough,

143 S. Ct. 14 (2022)........................ 10, 13, 14, 15, 16

Clinton v. City of N.Y.,

524 U.S. 417 (1998)............................................ 9, 12

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

575 U.S. 43 (2015)............................................ 11, 12

Egan v. Delaware River Port Auth.,

851 F.3d 263 (3d. Cir. 2017) .............................. 3, 16

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

561 U.S. 477 (2010)................................................ 12

Fuentes v. Shevin,

407 U.S. 67 (1972).................................................. 15

Goldberg v. Kelly,

397 U.S. 254 (1970)................................................ 13

Guthrie v. Wisconsin Emp. Rels. Comm’n,

111 Wis. 2d 447 (1983)........................................... 13

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016).............................. 12

Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013)................................ 10

Kennedy v. Butler Fin. Sols., LLC,

2009 WL 290471 (N.D. Ill. Feb. 4, 2009) .............. 11

Kisor v. Wilkie,

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

iii

Marbury v. Madison,

5 U.S. 137 (1803).................................................... 10

Metro. Washington Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc.,

501 U.S. 252 (1991).................................................. 9

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

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

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

Internet Servs., 545 U.S. 967 (2005).................. 3, 11

Padilla-Caldera v. Holder,

637 F.3d 1140 (10th Cir. 2011).............................. 11

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) .................................. 12

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020)........................................ 9, 12

Serono Lab’ys, Inc. v. Shalala,

158 F.3d 1313 (D.C. Cir. 1998) ........................ 13, 14

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

382 Wis. 2d 496 (2018)........................................... 15

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

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

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

310 U.S. 534 (1940)................................................ 10

United States v. Havis,

907 F.3d 439 (6th Cir. 2018).................................. 14

Util. Air Regulatory Grp. v. EPA,

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

Williams v. Pennsylvania,

579 U.S. 1 (2016).................................................... 15

Constitution and Statutes

U.S. Const. art. I, §9, cl. 7 ........................................... 5

U.S. Const., art. III, §1 .............................................. 10

31 U.S.C. §1341(a)(1) .................................................. 4

31 U.S.C. §3302(b) ....................................................... 4

Other Authorities

A. Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L. J. 908

(2017)...................................................................... 13

Todd Garvey & Daniel J. Sheffner, Congress’s

Authority to Influence and Control Executive

Branch Agencies, Cong. Research Serv.,

R45442 (May 12, 2021) ........................................ 6, 7

Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) ........... 12, 13, 14

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016) ...... 16

Zachary S. Price, Funding Restrictions and

Separation of Powers, 71 Vand. L. Rev. 357

(2018) ........................................................................ 7

Sean M. Stiff, Congress’s Power Over

Appropriations: Constitutional and Statutory

Provisions, Cong. Research Serv., R46417

(June 16, 2020)......................................................... 6

Kate Stith, Appropriations Clause, Nat’l Const.

Ctr., perma.cc/T7EW-S5BM .................................... 5

Kate Stith, Congress’ Power of the Purse,

97 Yale L.J. 1343 (1988) .................................. 2, 7, 8

3 Joseph Story, Commentaries on the

Constitution of the United States (1833) ................ 7

Cass R. Sunstein, Law and Administration After

Chevron, 90 Colum. L. Rev. 2071 (1990)............... 10

The Federalist No. 10 (J. Madison) .......................... 15

The Federalist No. 47 (J. Madison) ............................ 9

The Federalist No. 51 (J. Madison) .......................... 11

The Federalist No. 58 (J. Madison) ............................ 5

The Federalist No. 78 (A. Hamilton) .................... 9, 12

Laurence H. Tribe, American Constitutional Law

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

U.S. Jud. Conduct Code, Canon 1............................. 14

U.S. Jud. Conduct Code, Canon 3............................. 14

INTEREST OF AMICUS CURIAE 1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates for constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion. In

particular, SLF advocates to protect individual rights

and the framework set forth to protect such rights in

the Constitution. This aspect of its advocacy is

reflected in the regular representation of those

challenging overreaching governmental and other

actions in violation of the constitutional framework.

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

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

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

curiae briefs with this Court about issues of agency

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

S. Ct. 2400 (2019).

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

curiae certifies that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amicus curiae or its counsel has made a monetary

contribution to the preparation or submission of this brief.

Parties received timely notice of this brief and have consented to

its filing.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

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

of 1976 (MSA) has authorized the National Marine

Fisheries Service to require commercial herring

fisherman to carry third-party monitors on board to

monitor their compliance with federal fishing

regulations. But when the agency ran out of money for

the monitors, it shifted the responsibility of paying an

estimated $700 per day for them to the fishermen

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

power over the purse and its ability to limit agency

programming through appropriations.

That scheme raises significant separation of

powers issues. The power of the purse is an important

check on federal agencies. And “absent express

statutory authority … agencies can only spend as

much money as Congress appropriates.” App. 23

(Walker, J., dissenting). They simply may not “resort

to nonappropriation financing” without express

authority to do so. Kate Stith, Congress’ Power of the

Purse, 97 Yale L.J. 1343, 1356 (1988). If an agency

“could avoid limitations imposed by Congress in

appropriations

legislation[]

independently

financing its activities,” it “would vitiate the

foundational Constitutional decision to empower

Congress to determine what actions shall be

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

the Fisheries Service “attempted a workaround” those

constraints here. App. 23 (Walker, J.). And this Court

should not allow it to do so.

This case also asks the Court to reconsider

Chevron. 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 questions of law,

thus requiring the judiciary to shirk its duty to say

what the law is. Time and again, Chevron forces

judges to uphold interpretations that they believe are

wrong. Indeed, “Chevron teaches that a court’s opinion

as to the best reading of an ambiguous statute an

agency is charged with administering is not

authoritative.” Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 983 (2005).

That approach represents a significant shift of power

from the judiciary to administrative agencies and

violates the separation of powers.

Chevron also violates basic principles of due

process of law. Among other concerns, Chevron

systematically tips the scales in the government’s

favor, allows agencies to act as their own judge, and

deprives non-agency parties of fair notice. That

scheme is incompatible with the Constitution’s most

fundamental safeguards. Indeed, it is “contrary to the

roles assigned to the separate branches of

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

aside fairness and [their] own best judgment and

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

government, for no reason other than that it is the

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

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

the judgment).

The Court should grant the petition and reverse

the decision below.

ARGUMENT

Allowing agencies to design regulatory

programs and require regulated parties to

fund

them

beyond

congressional

appropriations violates the separation of

powers.

For at least the last decade, “the Fisheries Service

has had trouble affording its preferred monitoring

programs with just its congressionally appropriated

funds.” App. 22-23 (Walker, J., dissenting). This

presented a serious problem for the agency. “[A]bsent

express statutory authority … agencies can only

spend as much money as Congress appropriates.” Id.

at 23; see e.g., 31 U.S.C. §1341(a)(1) (“An officer or

employee of the United States Government or of the

District of Columbia government may not— (A) make

or authorize an expenditure or obligation exceeding

an amount available in an appropriation or fund for

the expenditure or obligation”). And “Congress

generally prohibits an agency from collecting fees and

keeping the money from those fees for the agency’s

own purposes.” App. 23 (Walker, J.); see 31 U.S.C.

§3302(b) (barring agencies from collecting fees and

keeping that money to fund the agency itself; and

requiring government officials “receiving money …

from any source” to “deposit the money in the

Treasury as soon as practicable” unless Congress

establishes an exception).

So the Fisheries Service “attempted a

workaround.” App. 23 (Walker, J.). “It decided to make

fishing companies, like Loper Bright Enterprises, hire

and pay for their own at-sea monitors.” Id. While the

agency itself acknowledged that claiming this power

to force the regulated community pay for the

government’s monitoring efforts was “highly

sensitive,” see Pet. 22; CADC App. 293, it claimed that

power nevertheless. It simply classified the burden of

contracting $700 a day third-party monitors as a

reasonable compliance cost, thereby evading

Congress’s power of the purse and its ability to limit

agency programming through appropriations. But by

interpreting the Magnuson-Stevens Act to allow the

agency to circumvent that process, this scheme raises

serious separation-of-powers concerns.

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

foundation of our Constitution’s separation of powers,

a constitutionally mandated check on Executive

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

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

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

Treasury, but in Consequence of Appropriations made

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

power of the purse to Congress alone as a key

structural curb on executive authority. See The

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

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

and effectual weapon with which any constitution can

arm the immediate representatives of the people, for

obtaining a redress of every grievance, and for

carrying into effect every just and salutary

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

Constitution’s separation of powers among the three

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

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

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

For decades, however, executive agencies abused

the appropriations process. See Sean M. Stiff,

Congress’s Power Over Appropriations: Constitutional

and Statutory Provisions, Cong. Research Serv.,

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

their own budgets by retaining and using public

money; obligated an appropriation beyond its purpose;

wrested greater funding from Congress by spending

all that Congress had appropriated previously or

obligated for purposes not permitted by the

appropriation; and refused to obligate funds to

advance policies with which a President disagreed.”).

In response, “Congress adopted a series of generally

applicable ‘fiscal control’ statutes designed to” reclaim

its power over appropriations and to “tighten its hold

on the purse strings.” Id.; see supra 4; App. 22-23

(Walker, J.).

Today, the power of the purse remains an

important check on federal agencies. Indeed, as

Petitioners explain, it remains “one of the few

practical constraints on overregulation.” Pet. 22.

“Congress exercises virtually plenary control over

agency funding.” Todd Garvey & Daniel J. Sheffner,

Congress’s Authority to Influence and Control

Executive Branch Agencies, Cong. Research Serv.,

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

used to control agency priorities, prohibit agency

action by denying funds for a specific action, or force

agency action by either explicitly appropriating funds

for a program or activity or withholding agency

funding until Congress’s wishes are complied with.”

Id.; see also Laurence H. Tribe, American

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

may simply refuse to appropriate funds for policies it

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

tool for Congress because, unlike legislation, a

President cannot veto the absence of an appropriation.

See Zachary S. Price, Funding Restrictions and

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

(2018) (“Congress has ensured that presidents must

always come back every year seeking money just to

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

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

appropriations power “is particularly important as a

restraint on Executive Branch officers.”).

Yet the “attempted [] workaround” here, App. 23

(Walker, J.), essentially allows the agency to

independently

fund

its

operations

without

congressional authorization. That scheme undercuts

the constitutional safeguards provided by the

Congressional appropriations process. See Stith,

Congress’ Power of the Purse, supra, 1356.

Under the government’s theory, any agency could

evade congressional oversight by designing a

regulatory program that simply transferred the

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

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

Joseph Story, Commentaries on the Constitution of

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

the Appropriations Clause, ‘the executive would

possess an unbounded power over the public purse of

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

below, the agency’s theory could allow it—or other

agencies—to evade Congressional oversight all

together. App. 32 (Walker, J.) (“[W]hat if Congress

were to entirely defund the compliance mechanisms of

the Fisheries Service—could the agency continue to

operate by requiring the industry to fund [the

agency]? That … could undermine Congress’s power

of the purse.”). That theory would fundamentally

undermine the separation of powers.

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

nonappropriation financing.” Stith, Congress’ Power of

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

authorized only to the extent of their appropriations.”

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

appropriations process without express statutory

authority, it presents serious separation-of-powers

concerns. This Court should not overlook those

concerns. It should grant the petition and reverse the

decision below.

II. This Court should overrule Chevron because

it violates the separation of powers and

basic principles of due process.

This case also asks the Court to reconsider

Chevron. Amicus agrees that it should, because

Chevron violates the separation of powers and basic

principles of due process.

A. Chevron violates the separation of powers.

The separation of powers is an “essential

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

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

separation of powers “is to protect the liberty and

security of the governed.” Metro. Washington Airports

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

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

stake when one or more of the branches seek to

transgress the separation of powers.” Clinton v. City

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

concurring). Because the “accumulation of all powers,

legislative, executive, and judiciary, in the same

hands, … may justly be pronounced the very

definition of tyranny,” the Framers formed a

government that would keep those powers “separate

and distinct.” The Federalist No. 47, supra. Thus they

adopted a Constitution that “set[] out three branches

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

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

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

concurring in part).

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

States” in the federal courts alone. That division of

power was intentional. The Framers believed that

“the general liberty of the people can never be

endangered … so long as the judiciary remains truly

distinct from both the legislative and executive.” The

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

often requires judges to defer to an agency’s judgment

on questions of law—reallocates considerable judicial

power to federal agencies.

When agencies interpret the law, they exercise

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

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

of statutes, as applied to justiciable controversies, is

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

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

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

emphatically the province and duty of the judicial

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

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

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

scholars have described Chevron deference as

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

Administration After Chevron, 90 Colum. L. Rev.

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

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

to an agency, violating the separation of powers.

Chevron invites executive agencies to take on the

role of independent judges. It conflicts with the

“traditional rule that judges must exercise

independent judgment about the law’s meaning.”

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

(Gorsuch, J., dissenting from denial of cert.). And it

instructs judges to “bypass[] any independent review

of the relevant statutes.” Id. at 14; see, e.g., HenriquezRivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013)

(“If the [agency’s] construction is reasonable, we must

accept that construction under Chevron, even if we

believe the agency’s reading is not the best statutory

interpretation.”). Yet neither Congress nor the courts

have constitutional authority to transfer the judicial

power to agencies. Indeed, the “Vesting Clauses are

exclusive” and “the branch in which a power is vested

may not give it up or otherwise reallocate it.” Dep’t of

Transp. v. Ass’n of American Railroads, 575 U.S. 43,

74 (2015) (Thomas, J., concurring in the judgment).

The Framers “were concerned not just with the

starting allocation, but with the ‘gradual

concentration of the several powers in the same

department.’” Id. (quoting The Federalist No. 51 (J.

Madison)). On top of that, agency bureaucrats—who

are responsive to political pressures, budgetary

concerns, and potential removal—make poor

substitutes for independent judges who enjoy tenure

and salary protections.

Over and over, Chevron forces judges to uphold

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

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

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

strikes the Court as reasonable, though perhaps not

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

courts are required to uphold an interpretation that

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

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

obligated

discard

its

earlier

statutory

interpretation

and

defer

the

agency’s

interpretation). In fact, “Chevron teaches that a

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

statute an agency is charged with administering is not

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

983.

Chevron thus shifts substantial power from the

judiciary to administrative agencies, disrupting the

Constitution’s careful allocation of power amongst the

three branches. From the start, the Framers

identified the judiciary as “the weakest of the three

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

But under Chevron, courts are made even weaker.

Indeed, Chevron effectively renders the judiciary a

rubber stamp for agencies that “wield[] vast power

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

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

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

threat to individual liberty and to the constitutional

system of separation of powers and checks and

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

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

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

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

responsibility is not part of the constitutional design.”

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

The Constitution simply does not contemplate such

“undifferentiated governmental power.” Ass’n of

American Railroads, 575 U.S. at 67 (Thomas, J.,

concurring in judgment) (cleaned up).

B. Chevron violates

principles.

basic

due

process

Chevron also violates basic principles of due

process.

then-Judge

Gorsuch

observed,

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

the judiciary to the executive unsurprisingly invites

the very sort of due process … concerns the framers

knew would arise if the political branches intruded on

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

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

concurring); see also Philip Hamburger, Chevron Bias,

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

such as Chevron … require judges to give up their role

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

Among other problems, Chevron systematically tips

the scales in the government’s favor, allows agencies

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

parties of fair notice.

To start, Chevron “introduce[s] into judicial

proceedings a ‘systematic bias toward one of the

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

(quoting Hamburger, supra, 1212). But Americans

expect courts to “resolve disputes about their rights

and duties under law without fear or favor to any

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

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

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

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

process”

includes

fair

and

impartial

decisionmaker.” Guthrie v. Wisconsin Emp. Rels.

Comm’n, 111 Wis. 2d 447, 453 (1983) (citing Goldberg

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

But Chevron undermines the promise of a neutral

decisionmaker. Under Chevron, judges must abandon

their independent judgment and defer to an agency’s

interpretation of law. That means when judges defer

to these administrative interpretations, they often

simply “adopt[] the interpretation or legal position of

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

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

reasonable, “regardless [of] whether there may be

other reasonable, or even more reasonable, views.”

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

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

“systematically biased judgment” in favor of one

party. Hamburger, supra, 1211.

In no other context does a court simply defer to

one of the parties. At least one federal judge has

suggested that such extreme deference may violate

judicial canons requiring independence. See United

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

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

n.1 (6th Cir. 2019) (explaining that “if judges are

predisposed to defer when the government is involved,

then that pre-commitment is ‘systemic bias.’ And that

bias violates both the first and third canon of judicial

conduct. See U.S. Jud. Conduct Code, Canon 1

(requiring an independent judiciary for a just society);

Canon 3 (requiring judges to recuse if a judge has a

bias in favor or against a party).”). Instead of

recognizing the judge as an impartial decisionmaker,

Chevron requires the judge to systematically favor one

party.

And not just any party. This scheme favors the

federal government—“the most powerful of litigants.”

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

Chevron gives the federal government an unfair

advantage by tipping the scales in its favor. See

Hamburger, supra, 1250. Such deference conflicts

with American courts’ historic commitment to “favor

individual liberty” and to construe certain ambiguities

in law “against the government and with lenity

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

(Gorsuch, J.).

Chevron also undermines due process because it

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

administrative agency interprets and applies the law

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

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

v. Wisconsin Dep’t of Revenue, 382 Wis. 2d 496, 555

(2018). But it is a “basic requirement of due process,”

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

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

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

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

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

“interest would certainly bias his judgment, and, not

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

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

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

function as a ‘fair and impartial decisionmaker’ as it

authoritatively tells the court how to interpret and

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

Inc., 382 Wis. 2d at 556.

Finally, Chevron violates notions of fair notice.

The “central meaning of procedural due process” is the

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

meaningful

time

and

meaningful

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

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

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

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

“reasonable” interpretation to another, “individuals

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

This uncertainty makes it difficult for individuals,

especially ordinary Americans, to structure their

personal affairs. They are simply “left to guess what

some executive official might ‘reasonably’ decree the

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

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

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

best interpretation of the law, each new iteration still

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

Kavanaugh, Fixing Statutory Interpretation, 129

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

agencies to shift the meaning of binding laws denies

Americans fair notice.

At bottom, Chevron is incompatible with the

Constitution’s most fundamental safeguards. It is

“contrary to the roles assigned to the separate

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

times to lay aside fairness and [their] own best

judgment and instead bow to the nation’s most

powerful litigant, the government, for no reason other

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

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

should grant the petition, revisit Chevron, and put an

end to this “atextual invention by courts.” Kavanaugh,

129 Harv. L. Rev. at 2150.

CONCLUSION

For these reasons, the Court should grant the

petition and reverse the decision below.

Respectfully submitted,