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

Supreme Court briefJul 19, 2023

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No. 22-451

In the Supreme Court of the United States

__________

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS

SECRETARY OF COMMERCE, ET AL.,

Respondents.

__________________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA

___________________________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

__________

GENE P. HAMILTON

CHRISTOPHER E. MILLS

REED D. RUBINSTEIN

Counsel of Record

ANDREW J. BLOCK

Spero Law LLC

America First Legal

557 East Bay Street

Foundation

#22251

611 Pennsylvania Ave.

Charleston, SC 29413

S.E. #231

(843) 606-0640

Washington, DC 20003

cmills@spero.law

(202) 964-3721

Counsel for Amicus Curiae

QUESTION PRESENTED

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.

TABLE OF CONTENTS

Page

Question Presented....................................................... i

Table of Authorities .................................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument .......................................... 2

Argument ..................................................................... 4

Statutory silence does not equal ambiguity. ....4

II. Chevron should not apply outside of noticeand-comment rulemaking. .............................. 15

A. Limiting Chevron to notice-and-comment

rulemaking alleviates its constitutional

problems. .................................................... 16

B. Limiting Chevron’s presumption to noticeand-comment rulemaking makes

interpretive sense. ..................................... 20

III. Deference to Article II powers does not

translate to Chevron deference to agency

policymaking. .................................................. 25

A. Courts appropriately defer to certain

executive exercises of Article II power...... 26

B. Chevron should not apply to policymaking

governing private entities under the

Commerce Clause. ..................................... 28

Conclusion .................................................................. 30

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) .............................................. 13

Adirondack Med. Ctr. v. Sebelius,

740 F.3d 692 (D.C. Cir. 2014) .............................. 11

Am. Bus Ass’n v. Slater,

231 F.3d 1 (D.C. Cir. 2000) ...................... 5, 6, 9, 30

Am. Petroleum Inst. v. EPA,

52 F.3d 1113 (D.C. Cir. 1995) .............................. 11

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) .......................................... 18

Baldwin v. United States,

140 S. Ct. 690 (2020) ........................................ 8, 20

Bayou Lawn & Landscape Servs. v. Sec’y of Lab.,

713 F.3d 1080 (11th Cir. 2013) .............................. 9

Biden v. Nebraska,

600 U.S. ___ (2023) ................................... 12, 15, 22

Biden v. Texas,

142 S. Ct. 2528 (2022) .......................................... 27

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) .......................................... 19

Bowsher v. Synar,

478 U.S. 714 (1986) ................................................ 7

Bradley v. Sebelius,

621 F.3d 1330 (11th Cir. 2010) ............................ 24

Chamber of Commerce v. NLRB,

721 F.3d 152 (4th Cir. 2013) .................................. 9

Cheney R.R. Co., Inc. v. I.C.C.,

902 F.2d 66 (D.C. Cir. 1990) ................................ 11

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc.,

467 U.S. 837 (1984) ................ 2–5, 8–25, 28, 29, 30

Chi. & S. Air Lines v. Waterman S. S. Corp.,

333 U.S. 103 (1948) .............................................. 27

Christensen v. Harris County,

529 U.S. 576 (2000) ........................................ 15, 16

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) .............................................. 17

City of Arlington v. FCC,

569 U.S. 290 (2013) .................. 6, 10, 13, 20, 21, 23

Coffelt v. Fawkes,

765 F.3d 197 (3d Cir. 2014) .................................... 9

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) .......................................... 18

Dep’t of Navy v. Egan,

484 U.S. 518 (1988) ........................................ 26, 27

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

575 U.S. 43 (2015) ................................................ 17

Dunn v. CFTC,

519 U.S. 465 (1997) ........................................ 20, 21

Edmond v. United States,

520 U.S. 651 (1997) .............................................. 28

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ........................................ 10, 12

Field v. Clark,

143 U.S. 649 (1892) ................................................ 7

Ford v. Wainwright,

477 U.S. 399 (1986) ........................................ 27, 28

Freeman v. Quicken Loans, Inc.,

626 F.3d 799 (5th Cir. 2010) ................................ 24

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................ 14, 16, 17, 22

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .............................................. 27

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) .............................................. 27

INS v. Chadha,

462 U.S. 919 (1983) ................................................ 7

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ............................................ 29

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) .............................................. 17

Lopez v. Terrell,

654 F.3d 176 (2d Cir. 2011) .................................. 23

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................................ 6

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................ 8, 28

Marlow v. New Food Guy, Inc.,

861 F.3d 1157 (10th Cir. 2017) ............................ 13

Merck Sharpe & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) ........................................ 6, 7

Michigan v. EPA,

576 U.S. 743 (2015) .......................... 4, 5, 12, 18, 29

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 17

Morrison v. Nat’l Austl. Bank Ltd.,

561 U.S. 247 (2010) .............................................. 23

Mylan Labs., Inc. v. Thompson,

389 F.3d 1272 (D.C. Cir. 2004) ............................ 24

Nat. Res. Def. Council v. Reilly,

983 F.2d 259 (D.C. Cir. 1993) .............................. 14

NLRB v. Noel Canning,

573 U.S. 513 (2014) .............................................. 28

vii

New York v. FERC,

535 U. S. 1 (2002) ................................................... 6

Oregon Rest. & Lodging Ass’n v. Perez,

816 F.3d 1080 (9th Cir. 2016) .............................. 13

Oregon Rest. & Lodging Ass’n v. Perez,

843 F.3d 355 (9th Cir. 2016) .............................. 8, 9

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................ 8, 17, 18, 19

Regan v. Wald,

468 U.S. 222 (1984) .............................................. 67

Ry. Lab. Execs. ’ Ass’n v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir.), amended, 38 F.3d 1224

(D.C. Cir. 1994) (en banc) ................................... 8, 9

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) .......................................... 28

Sierra Club v. EPA,

311 F.3d 853 (7th Cir. 2002) .................................. 9

Smiley v. Citibank,

517 U.S. 735 (1996) .......................................... 4, 20

Solesbee v. Balkcom,

339 U.S. 9 (1950), abrogated on other grounds by

Ford v. Wainwright, 477 U.S. 399 (1986) ...... 27, 28

Stark v. Wickard,

321 U.S. 288 (1944) ................................................ 6

viii

Swaim v. United States,

165 U.S. 553 (1897) .............................................. 27

Texas v. United States,

809 F.3d 134 (5th Cir. 2015), aff'd, 579 U.S 547

(2016) ...................................................................... 9

United States v. Comstock,

560 U.S. 126 (2010) ................................................ 6

United States v. Curtiss–Wright Exp. Corp.,

299 U.S. 304 (1936) .............................................. 27

United States v. Le Baron,

60 U.S. (19 How.) 73 (1856) ................................ 28

United States v. Mead Corp.,

533 U.S. 218 (2001) .......................... 3, 5, 15, 21–24

United States v. Morrison,

529 U.S. 598 (2000) ............................................ 6, 7

United States v. Nixon,

418 U.S. 683 (1974) .............................................. 26

U.S. Telecom Ass’n v. FCC,

359 F.3d 554 (D.C. Cir. 2004) ................................ 6

Vill. Of Barrington v. Surface Transp. Bd.,

636 F.3d 650 (D.C. Cir. 2011) .............................. 24

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) .......................................... 10

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .................................... 15, 22

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 12

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .......................................... 7, 30

CONSTITUTION AND STATUTES

5 U.S.C. § 551............................................................. 25

5 U.S.C. § 553............................................................. 17

8 U.S.C. § 1103(a) ...................................................... 26

16 U.S.C. § 1858(g) .................................................... 25

U.S. Const. amend. X................................................... 6

U.S. Const. art. I .......................................................... 9

U.S. Const. art. I, § 1 ....................................... 6, 16, 22

U.S. Const. art. I, § 8, cl. 3 .................................. 25, 29

U.S. Const. art. I, § 8, cl. 11–16........................... 28, 29

U.S. Const. art. II, § 2, cl. 1 ....................................... 29

U.S. Const. art. II, §§ 2–3 .......................................... 26

OTHER AUTHORITIES

1 The Records of the Federal Convention of 1787 70

(Max Farrand ed., 1911) (King’s Notes, June 1,

1787)...................................................................... 26

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) ............................. 10

Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev.

187 (2006) ............................................................. 19

E. Garrett West, A Youngstown for the

Administrative State, 70 Admin. L. Rev. 629

(2018) .................................................................... 28

John Locke, Second Treatise of Civil Government

(J. Gough ed. 1947) ............................................... 17

Michael Herz, Deference Running Riot: Separating

Interpretation and Lawmaking Under Chevron, 6

Admin. L.J. Am. U. 187 (1992) ...................... 10, 11

Nathan Alexander Sales & Jonathan H. Adler, The

Rest Is Silence: Chevron Deference, Agency

Jurisdiction, and Statutory Silences, 2009 U. Ill.

L. Rev. 1497 (2009) ............................................... 10

The Federalist No. 47 (Madison)

(J. Cooke ed. 1961) ........................................... 7, 20

The Federalist No. 51 (Madison) ................................. 7

Thomas W. Merrill & Kristin E. Hickman, Chevron’s

Domain, 89 Geo. L.J. 833 (2001).............. 19, 21, 29

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States by preventing executive overreach,

ensuring due process and equal protection for every

American citizen, and encouraging understanding of

the law and individual rights guaranteed under the

Constitution and laws of the United States. Because of

this case’s implications for the constitutional

separation of powers, America First Legal has a

substantial interest in it. 1

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

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than amicus curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

SUMMARY OF THE ARGUMENT

Judicial deference to agency legal interpretations

sits uncomfortably with the Constitution’s separation

of powers. The power to make the law is vested in

Congress by Article I, the power to interpret the law is

vested in the judiciary by Article III, and the power to

enforce the law is vested in the Executive by Article II.

The legislative power was long considered the most

dangerous. But increasingly, executive agencies make

policy and law under the guise of interpreting statutes.

When courts defer to agency interpretations, they

bless a union of legislative and executive power that

unhinges the Constitution, simultaneously ceding

both Article I and Article III power to the Executive.

Several solutions have been proposed to address

this problem. One—for another case—is to take

seriously the Article I limits on delegating power to the

Executive. Another—for this case—is to at least

narrow the rule of deference by Article III courts that

this Court developed in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984).

This brief proposes three clarifications to Chevron.

First, the Court should clarify that statutory silence

does not equal ambiguity justifying Chevron

deference. In general, statutory silence means both

that the national government has not asserted its

limited powers to regulate the people and that

Congress has not delegated such power to an agency.

Therefore, absent an affirmative delegation of

authority, the presumption should be that statutory

silence means that an agency has no authority to limit

freedom. But the presumption increasingly used by the

D.C. Circuit—departing from a long line of contrary

cases—is that broad statutory schemes let the agency

regulate willy-nilly across the whole subject area, not

just in the “gaps.” Not only does this presumption

exacerbate the tension between the Constitution and

Chevron, it also disregards this Court’s repeated

instructions to use traditional tools of statutory

interpretation—including canons like expressio

unius—before finding an ambiguity to interpret or a

gap to be filled by the agency. The Court should correct

this error.

Second, Chevron should not apply outside of noticeand-comment rulemakings specifically authorized by

Congress. Notice-and-comment procedures ensure the

involvement of the people in lawmaking, thereby

alleviating the constitutional problem of agency

policymaking outside of Article I’s strictures. And

requiring these procedures makes sense as an

interpretive matter, as Congress is more likely to have

delegated authority when it knows that the agency

will be required to follow adequate procedures

ensuring reasoned consideration. This Court has

already gone most of the way in imposing this Chevron

prerequisite, see United States v. Mead Corp., 533 U.S.

218, 227–28 (2001), and it should finish the job here.

Third, the Court should recognize that Chevron

deference is quite different from the proper deference

shown to the Executive’s exercise of its traditional

Article II powers over foreign affairs, the military,

immigration, and the like—especially when Chevron

enables agencies to impose policy regulations on

private entities under the guise of Congress’s

Commerce Clause power. The Constitution assigns

Congress, not the Executive, power over interstate

commerce. But too often, private entities find

themselves governed by agency policymaking

regulations rather than congressional statutes. The

Court should clarify this important distinction and

adopt a presumption against deference to agency

policymaking regulations issued under Congress’s

Commerce Clause authority.

ARGUMENT

I. Statutory silence does not equal ambiguity.

Chevron famously addressed the tension between

implementing agencies and reviewing courts over

statutory interpretation by propounding a two-step

test. If Congress has spoken unambiguously, “that is

the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously

expressed intent of Congress.” Chevron, 467 U.S. at

842–43. But “if the statute is silent or ambiguous with

respect to the specific issue, the question for the court

is whether the agency’s answer is based on a

permissible construction of the statute.” Id. at 843

(emphasis added).

As a linguistic matter, Chevron does not teach that

silence equals ambiguity, as it refers to statutes that

are “silent or ambiguous.” The “silence” Chevron

contemplated was very different from the silence

embraced by the decision below and many other

decisions. Chevron’s “silence” was based on an

understanding that agencies would make necessary

choices in implementing the details of congressional

commands. “Chevron deference is premised on a

‘presumption that Congress, when it left ambiguity in

a statute . . . desired the agency (rather than the

courts) to possess whatever degree of discretion the

ambiguity allows.’” Michigan v. EPA, 576 U.S. 743,

761 (2015) (Thomas, J., concurring) (quoting Smiley v.

Citibank, 517 U.S. 735, 740–41 (1996)). These details

incident to the implementation of congressional

commands are addressed by an agency when it

resolves “ambiguity in the statute or fills a space in the

enacted law.” Id. (quoting Mead, 533 U.S. at 229).

Accordingly, Chevron’s “silence” refers only to

necessary statutory gaps about the details of the

statutory scheme.

The decision below, however, read Chevron to mean

that the lack of a prohibition on agency action amounts

to a congressional grant of authority that warrants

deference. According to the majority below, “[w]hen

Congress has not ‘directly spoken to the precise

question at issue,’ the agency may fill this gap with a

reasonable interpretation of the statutory text.” App.

6 (quoting Chevron, 467 U.S. at 842). Applying that

rule here, the court below said that because the statute

“expressly envisions that monitoring programs will be

created and, through its silence, leaves room for

agency discretion as to the design of such programs,”

the agency’s mandate—requiring the fishery to pay for

such programs—required Chevron deference. App. 12

(emphasis added); see App. 6 (explaining that the

statute’s “text makes clear the Service may direct

vessels to carry at-sea monitors but leaves unanswered

whether the Service must pay for those monitors or

may require industry to bear the costs of at-sea

monitoring” (emphasis added)).

This mode of analysis disregards constitutional

limitations on agency authority. Any authority to fill

statutory gaps does not and cannot confer authority to

supply binding answers to any and all questions not

raised or addressed by Congress. “[T]hat statutory

silences are not Chevron-triggering ambiguities

follows from the very nature of administrative

agencies.” Am. Bus Ass’n v. Slater, 231 F.3d 1, 9 (D.C.

Cir. 2000) (Sentelle, J., concurring). “[A]n agency

literally has no power to act . . . unless and until

Congress confers power upon it.” Merck Sharpe &

Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1679 (2019)

(quoting New York v. FERC, 535 U. S. 1, 18 (2002)).

“[S]tatutory ‘silence’ simply leaves that lack of

authority untouched.” U.S. Telecom Ass’n v. FCC, 359

F.3d 554, 566 (D.C. Cir. 2004). And when Congress

does “pass[] an Act empowering administrative

agencies to carry on governmental activities, the

power of those agencies is circumscribed by the

authority granted.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 577 (1992) (quoting Stark v. Wickard, 321

U.S. 288, 309 (1944)). “Both their power to act and how

they are to act is authoritatively prescribed by

Congress.” City of Arlington v. FCC, 569 U.S. 290, 297

(2013).

These principles, in turn, follow from the limited

authority granted to the federal government to

regulate the people—authority that may be exercised

only according to the Constitution’s strictures,

including its delegation of “legislative Powers herein

granted” to Congress. See U.S. Const. art. I, § 1. From

its inception, ours has been a government of delegated

powers. See, e.g., U.S. Const. amend. X (“The powers

not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the

States respectively, or to the people.”); United States v.

Comstock, 560 U.S. 126, 153 (2010) (Kennedy, J.,

concurring) (“The Constitution delegates limited

powers to the National Government and then reserves

the remainder for the States (or the people), not the

other way around . . . .”); id. at 159 (Thomas, J.,

dissenting) (“Congress has no power to act unless the

Constitution authorizes it to do so.”) (citing United

States v. Morrison, 529 U.S. 598, 607 (2000)); Albrecht,

139 S. Ct. at 1679.

The founders recognized that unchecked

government power poses a danger to the people. They

responded to this danger by constraining the federal

government, including through the separation of its

limited powers: “The declared purpose of separating

and dividing the powers of government, of course, was

to ‘diffus[e] power the better to secure liberty.’”

Bowsher v. Synar, 478 U.S. 714, 721 (1986) (quoting

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

635 (1952) (Jackson, J., concurring)). Of the three

branches, the legislative power was understood as the

most potent—and most necessary to contain. See INS

v. Chadha, 462 U.S. 919, 947 (1983) (discussing “the

profound conviction of the Framers that the powers

conferred on Congress were the powers to be most

carefully circumscribed”); see also The Federalist No.

51 (Madison). The union of legislative with executive

power was thus especially to be avoided: “[T]here can

be no liberty where the legislative and executive

powers are united in the same person, or body of

magistrates.” Bowsher, 478 U.S. at 721–22 (quoting

The Federalist No. 47, at 325 (Madison) (J. Cooke ed.

1961)).

Thus, the national government’s powers are

limited, and Congress must exercise the lawmaking

component of those powers. “That Congress cannot

delegate legislative power to the President is a

principle universally recognized as vital to the

integrity and maintenance of the system of

government ordained by the Constitution.” Field v.

Clark, 143 U.S. 649, 692 (1892); id. at 693 (describing

the President’s limited “discretion” which was “simply

in execution of the act of Congress”). The rule of

delegated or enumerated powers, then, flows from the

national government to Congress to administrative

agencies. As Judge O’Scannlain explained, “a statute’s

deliberate non-interference with a class of activity is

not a ‘gap’ in the statute at all; it simply marks the

point where Congress decided to stop authorization to

regulate.” Oregon Rest. & Lodging Ass’n v. Perez, 843

F.3d 355, 360 (9th Cir. 2016) (dissenting from denial

of rehearing en banc).

The “practice” of “accord[ing] controlling weight” to

agency interpretations of statutory silence “turns on

its head the principle that the United States is ‘a

government of laws, and not of men.’” Perez v. Mortg.

Bankers Ass’n, 575 U.S. 92, 127 (2015) (Thomas, J.,

concurring) (quoting Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803)) (cleaned up). It also abdicates

the duty of the judiciary to “check” the other branches

by “apply[ing] the law in cases or controversies

properly before it.” Baldwin v. United States, 140 S.

Ct. 690, 692 (2020) (Thomas, J., dissenting from denial

of certiorari). Administrative agencies do not have

plenary authority over the entire subject area in which

they are involved. All authority must be delegated to

the agency by Congress.

Any suggestion that Chevron is “implicated any

time a statute does not expressly negate the existence

of a claimed administrative power (i.e. when the

statute is not written in ‘thou shalt not’ terms)” would

be “flatly unfaithful to” these constitutional principles.

Ry. Lab. Execs.’ Ass’n v. Nat’l Mediation Bd., 29 F.3d

655, 671 (D.C. Cir.), amended, 38 F.3d 1224 (D.C. Cir.

1994) (en banc) (Edwards, J.). As the D.C. Circuit used

to understand, “[w]ere courts to presume a delegation

of power absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony, a

result plainly out of keeping with Chevron and quite

likely with the Constitution as well.” Id. 2

Moreover, such an interpretation would give rise to

just the sort of blank checks the court below found in

this case, in which the authority to “create[]” a

“monitoring program[]” to implement Congress’

avowed intent became a limitless grant of power. App.

12. “After all, it is the norm for statutes to be silent on

whether they grant various powers to agencies.”

Slater, 231 F.3d at 9 (Sentelle, J., concurring). If such

silence is enough to trigger Chevron deference,

agencies “become the nation’s principal lawmakers.”

Id.; contra U.S. Const., art. I. This would only further

Other courts of appeals have agreed with the D.C. Circuit’s

former view. See, e.g., Coffelt v. Fawkes, 765 F.3d 197, 202 (3d Cir.

2014) (“Even where a statute is ‘silent’ on the question at issue,

such silence ‘does not confer gap-filling power on an agency unless

the question is in fact a gap—an ambiguity tied up with the

provisions of the statute.”’); Chamber of Commerce v. NLRB, 721

F.3d 152, 160 (4th Cir. 2013) (“[W]e do not presume a delegation

of power simply from the absence of an express withholding of

power.’); Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015)

(“The dissent repeatedly claims that congressional silence has

conferred on DHS the power to act. To the contrary, any such

inaction cannot create such power.” (citation omitted)), aff’d, 579

U.S. 547 (2016); Sierra Club v. EPA, 311 F.3d 853, 861 (7th Cir.

2002) (“Courts ‘will not presume a delegation of power based

solely on the fact that there is not an express withholding of such

power.”’); Bayou Lawn & Landscape Servs. v. Sec’y of Lab., 713

F.3d 1080, 1085 (11th Cir. 2013) (“[I]f congressional silence is a

sufficient basis upon which an agency may build a rulemaking

authority, the relationship between the executive and legislative

branches would undergo a fundamental change.”); see also Oregon

Rest. & Lodging, 843 F.3d at 362–63 (O’Scannlain, J., dissenting

from denial of rehearing en banc) (“[O]ur sister circuits . . . have

echoed again and again the basic reality that silence . . . often

reflects Congress’s decision not to regulate in a particular area at

all, a decision that is binding on the agency.”).

“encourage[] the Executive Branch (whichever party

controls it) to be extremely aggressive in seeking to

squeeze its policy goals into ill-fitting statutory

authorizations and restraints.” Brett M. Kavanaugh,

Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2150 (2016). Seemingly, agencies could even

obligate the U.S. Treasury within this space of silence.

The better presumption is, as Judge Walker

explained below, that “silence indicates a lack of

authority.” App. 26 (dissenting opinion). As with “any

field of statutory interpretation,” the Court’s “duty [is]

to respect not only what Congress wrote but, as

importantly, what it didn’t write.” Virginia Uranium,

Inc. v. Warren, 139 S. Ct. 1894, 1900 (2019) (plurality

opinion). The relevant question is “whether the

statutory text” sanctions “the agency’s assertion of

authority.” City of Arlington, 569 U.S. at 301.

To answer this question, just as Judge Walker said,

a court “empt[ies] [its] interpretive toolkit” at

Chevron’s first step. App. 25 (dissenting opinion). Only

if the court finds a legal ambiguity using its traditional

statutory analysis should it proceed to Chevron’s

reasonableness analysis. Statutory silence, however,

will normally signal a lack of delegated authority.

Generally “statutory silence, when viewed in context,

is best interpreted as limiting agency discretion,” not

creating it. Entergy Corp. v. Riverkeeper, Inc., 556 U.S.

208, 223 (2009) (cleaned up); see also Nathan

Alexander Sales & Jonathan H. Adler, The Rest Is

Silence: Chevron Deference, Agency Jurisdiction, and

Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1532

(2009) (“[A] statute delegates the authority it

delegates, and the rest is silence.”); Michael Herz,

Deference Running Riot: Separating Interpretation

and Lawmaking Under Chevron, 6 Admin. L.J. Am. U.

187, 203 (1992) (“Congressional silence should,

therefore, be understood to leave this power—the

power to say what it is that Congress has done—with

the courts, where it has always been.”).

In prior decisions, the D.C. Circuit was faithful to

this principle. In one case, for example, it found that

the “EPA cannot rely on its general authority to make

all rules necessary to carry out its functions when a

specific statutory directive defines the relevant

functions of EPA in a particular area.” Am. Petroleum

Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995); see

also id. (“[T]he general grant of rulemaking power to

EPA cannot trump specific portions of the [Clean Air

Act] and” “EPA cannot use the general rulemaking

authority . . . as justification for adding new factors to

a list of statutorily specified ones.”).

But as the decision below shows, that

interpretation of Chevron has become, for the D.C.

Circuit anyway, a thing of the past. See App. 5

(“Congress has delegated broad authority to an agency

with expertise and experience within a specific

industry, and the agency action is so confined,

claiming no broader power to regulate the national

economy.” (emphasis added)). Part of the problem is

that the D.C. Circuit has abandoned “traditional tools

of statutory construction” like the expressio unius

canon. See Chevron, 467 U.S. at 843 n.9. In a case

relied on below, writing in similarly expansive

language of a “broad grant of authority contained

within the same statutory scheme,” the D.C. Circuit

dismissed expressio unius, calling it “‘a feeble helper in

an administrative setting’” and favoring deference to

the broad grant. Adirondack Med. Ctr. v. Sebelius, 740

F.3d 692, 697 (D.C. Cir. 2014) (quoting Cheney R.R.

Co., Inc. v. I.C.C., 902 F.2d 66, 69 (D.C. Cir. 1990)).

Abandoning ordinary interpretive tools, including

expressio unius, contradicts this Court’s teachings.

Text must be “‘interpreted in its statutory and

historical context,’” and “[t]he relevant ‘statutory

context’ include[s]” the absence of “express[]

authoriz[ation]” found elsewhere in the law. Entergy,

556 U.S. at 223 (cleaned up); accord Biden v.

Nebraska, 600 U.S. ___, ___ (2023) (slip op., at 15)

(“Congress opted to make debt forgiveness available

only in a few particular exigent circumstances”). An

agency “may not construe the statute in a way that

completely nullifies textually applicable provisions

meant to limit its discretion.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 485 (2001).

Under the erroneous rule of default deference to

agencies’ “broad authority,” agencies assert an

“enabling-silence” version of Chevron that looks less

like the power to “fill gaps,” and more like the power

to legislate a plenary regulatory scheme. This errant

interpretation requires repeated corrections. Thus, the

Court was recently forced to remind the Secretary of

Education, who administers the Education Act, that

his authority does not allow him to “rewrite that

statute from the ground up.” Biden, 600 U.S. at ___

(slip op., at 12); see also id., at ___ (slip op., at 14) (“The

Secretary’s new ‘modifications’ of these provisions

were not ‘moderate’ . . . Instead, they created a novel

and fundamentally different . . . program.”). As Justice

Thomas has noted, “agencies ‘interpreting’ ambiguous

statutes typically are not engaged in acts of

interpretation at all. Instead, as Chevron itself

acknowledged, they are engaged in the ‘formulation of

policy.’” Michigan, 576 U.S. at 762 (Thomas, J.,

concurring) (cleaned up). Rather than contained and

finite, the powers asserted by these agencies are

general and expansive. This is not the authority to “fill

gaps.”

So what is the appropriate domain of Chevron’s

“silence”? To the extent Chevron deference is ever

appropriate, the relevant statutory “gaps” must be

contained and finite. Chevron gaps concern

“interstitial lawmaking” or “how best to construe an

ambiguous term in light of competing policy interests.”

City of Arlington, 569 U.S. at 304–05. The need for a

mere “gap” in contradistinction to “silence” was

highlighted in Adams Fruit Co. v. Barrett, in which

this Court rejected the argument that a statute’s

“failure to speak directly” to a question “create[d] a

statutory ‘gap’ within the meaning of Chevron.” 494

U.S. 638, 649 (1990). “A precondition to deference

under Chevron,” the Court explained, “is a

congressional delegation of administrative authority,”

and such a delegation must be “evident in the statute.”

Id. at 649–50. “Although agency determinations

within the scope of delegated authority are entitled to

deference,” silence does not permit an agency to

“bootstrap itself into an area in which it has no”

delegated authority. Id. at 650 (cleaned up).

Accordingly, an agency action must fall within the

delegated authority, not just within the general

subject area: there must be an authentic statutory gap

conveying (explicitly or implicitly) congressional

intent to delegate interpretive authority. “[I]t is only

in the ambiguous ‘interstices’ within the statute where

silence warrants administrative interpretation, not

the vast void of silence on either side of it.” Oregon

Rest. & Lodging Ass’n v. Perez, 816 F.3d 1080,

1094 (9th Cir. 2016) (Smith, J., dissenting); accord

Marlow v. New Food Guy, Inc., 861 F.3d 1157, 1163

(10th Cir. 2017) (“[W]hen the Court has spoken of such

silences or gaps, it has been considering undefined

terms in a statute or a statutory directive to perform a

specific task without giving detailed instructions.”).

In sum, “an agency can fill in statutory gaps where

‘statutory circumstances’ indicate that Congress

meant to grant it such powers.” Gundy v. United

States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J.,

dissenting). And, assuming Chevron ever applies, it

could apply to the agency’s “fill[ing] up the details

within the framework of the policy which the

legislature has sufficiently defined.” Id. at 2138

(cleaned up). But when the traditional tools of

interpretation reveal that Congress has simply

remained silent on a policy choice, the constitutional

presumption must be that it did not intend to delegate

power over that choice to the agency—much less

intend for the courts to defer to the agency’s resulting

policy choice.

Here, the Magnuson-Stevens Act (MSA) in other

provisions expressly authorizes the collection of costs

from those regulated, while not doing so for the

Atlantic herring fishery. App. 9. Congress has the

means to delegate powers it wishes to delegate, and

withhold other powers. See Nat. Res. Def. Council v.

Reilly, 983 F.2d 259, 266 (D.C. Cir. 1993) (“[I]t is only

legislative intent to delegate such authority that

entitles an agency to advance its own statutory

construction for review under the deferential second

prong of Chevron.”). Nothing in the MSA suggests a

legislative intent to delegate to the National Marine

Fisheries Service (NMFS) the power to bypass the

appropriations process to fund its program using the

fishery’s money. Unlike a properly passed legislative

act, “[t]he [NMFS]’s assertion of administrative

authority has ‘conveniently enabled [it] to enact a

program’ that Congress has chosen not to enact itself.”

Biden, 600 U.S. at ___ (slip op., at 21–22) (quoting West

Virginia v. EPA, 142 S. Ct. 2587, 2596 (2022)). At a

minimum, statutory context makes clear that the

collection of costs from the New England herring

fishery is unambiguously not authorized by the MSA.

By replacing traditional statutory interpretation with

a preference for agencies’ “broad authority,” the

decision below went astray.

II. Chevron should not apply outside of noticeand-comment rulemaking.

To the extent the Court retains any form of

Chevron deference, it should minimize the doctrine’s

constitutional implications by limiting it to rules that

the public had an opportunity to weigh in on. In Mead,

this Court held that “administrative implementation

of a particular statutory provision qualifies for

Chevron deference” only “when it appears that

Congress delegated authority to the agency . . . to

make rules carrying the force of law.” 533 U.S. at 226–

27. The Court thus qualified Chevron deference,

reasoning that “[i]t is fair to assume generally that

Congress contemplates administrative action with the

effect of law when it provides for a relatively formal

administrative procedure tending to foster the fairness

and

deliberation

that

should

underlie

pronouncement of such force.” Id. at 230. Mead,

however, declined to provide a bright-line rule:

“[d]elegation of such authority may be shown in a

variety of ways,” as long as there was a sufficient

“indication of” “congressional intent.” Id. at 227. In

Christensen v. Harris County, the Court held that

“opinion letters—like interpretations contained in

policy statements, agency manuals, and enforcement

guidelines, all of which lack the force of law—do not

warrant Chevron-style deference.” 529 U.S. 576, 587

(2000).

Especially given Chevron’s inherent constitutional

liabilities, the Court should at minimum limit Chevron

deference to notice-and-comment rulemaking. First,

this limitation would reduce some of the constitutional

concerns with Chevron by involving the people in any

legislative-type rulemaking that would receive judicial

deference. Second, this limitation would be consistent

with the interpretive presumptions underlying

Chevron: it would make more sense for Congress to

delegate questions to an agency that the public would

have a chance to answer.

A. Limiting Chevron to notice-and-comment

rulemaking alleviates its constitutional

problems.

Under Article I of the Constitution, “[a]ll legislative

Powers herein granted shall be vested in a Congress of

the United States.” § 1. The framers understood this

power “to mean the power to adopt generally

applicable rules of conduct governing future actions by

private persons—the power to prescribe the rules by

which the duties and rights of every citizen are to be

regulated, or the power to prescribe general rules for

the government of society.” Gundy, 139 S. Ct. at 2133

(Gorsuch, J., dissenting) (cleaned up). Because

“[a]ccompanying that assignment of power to Congress

is a bar on its further delegation,” id. at 2123 (majority

opinion), Congress must “make[] the policy decisions

when regulating private conduct,” id. at 2136

(Gorsuch, J., dissenting). By that assignment of power,

the framers protected the individual liberty “‘to have a

standing rule to live by . . . made by the legislative

power,’ and to be free from ‘the inconstant, uncertain,

unknown, arbitrary will of another man.’” Dep’t of

Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 75–76

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

(quoting John Locke, Second Treatise of Civil

Government 13 (J. Gough ed. 1947)).

Though this Court has largely “abandoned all

pretense of enforcing a qualitative distinction between

legislative and executive power,” id. at 84, it still

recognizes that agencies can only regulate pursuant to

a delegation from the people’s representatives in

Congress. As discussed above, legislative “rulemaking

power originates in the Legislative Branch and

becomes an executive function only when delegated by

the Legislature to the Executive Branch.” Mistretta v.

United States, 488 U.S. 361, 386 n.14 (1989). “To

permit an agency to expand its power . . . would be to

grant to the agency power to override Congress.” La.

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374–75

(1986).

Limiting Chevron deference to rules promulgated

after notice and comment would be “in service of the

constitutional rule that Congress may not divest itself

of its legislative power by transferring that power to

an executive agency.” Gundy, 139 S. Ct. at 2142

(Gorsuch, J., dissenting). “Rules issued through the

notice-and-comment process are often referred to as

‘legislative rules’ because they have the ‘force and

effect of law.’” Perez, 575 U.S. at 96 (quoting Chrysler

Corp. v. Brown, 441 U.S. 281, 302–303 (1979)).

In 5 U.S.C. § 553, the Administrative Procedure Act

(APA) lays out a notice and comment process that

must generally be followed when an agency makes a

rule with the force of law pursuant to a congressional

delegation:

First, the agency must issue a “[g]eneral notice

of proposed rule making,” ordinarily by

publication in the Federal Register. § 553(b).

Second, if “notice [is] required,” the agency

must “give interested persons an opportunity to

participate in the rule making through

submission of written data, views, or

arguments.” § 553(c). An agency must consider

and respond to significant comments received

during the period for public comment. Third,

when the agency promulgates the final rule, it

must include in the rule’s text “a concise

general statement of [its] basis and purpose.”

§ 553(c).

Perez, 575 U.S. at 96 (citations omitted). 3

Thus, “[n]otice and comment gives [the public] fair

warning of potential changes in the law and an

opportunity to be heard on those changes.” Azar, 139

S. Ct. at 1816. These are the “procedures by which

federal agencies are accountable to the public.” Dep’t

of Homeland Sec. v. Regents of the Univ. of Cal., 140

S. Ct. 1891, 1905 (2020).

Limiting Chevron deference to rules promulgated

after these notice-and-comment procedures alleviates

some of the constitutional problems underlying this

Court’s administrative law precedents. To be sure,

notice-and-comment rulemaking is no substitute for

the people speaking through their representatives,

and it does not resolve the constitutional problem that

“a body other than Congress [would] perform a

function that requires an exercise of the legislative

power.” Michigan, 576 U.S. at 762 (Thomas, J.,

3 Other statutes have similar procedures. See, e.g., Azar v. Allina

Health Servs., 139 S. Ct. 1804, 1809 (2019).

concurring). But providing the public an opportunity

to weigh in on such rules takes some of the sting out of

transferring to the Executive Branch the legislative

power to make rules governing private conduct.

Whatever rule the Executive Branch makes, the public

will at least have had “an opportunity to be heard,”

and the agency will have to “offer[] reasoned responses

to what people have to say.” Cass R. Sunstein, Chevron

Step Zero, 92 Va. L. Rev. 187, 225 (2006). “[O]ther

modes of announcing agency interpretations do not

offer

equivalent

opportunities

for

public

participation.” Thomas W. Merrill & Kristin E.

Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 886

(2001). Thus, when Congress has specifically directed

an agency to engage in notice-and-comment

rulemaking on a given issue, these procedures might

partially alleviate the consequences of that delegation.

Relatedly, this public input reduces the

consequences of transferring the judicial “power to

resolve [statutory] ambiguities” to the Executive

Branch. Perez, 575 U.S. at 119 (Thomas, J., concurring

in the judgment). Because the judicial power is to

interpret the law “in accord with the ordinary public

meaning of its terms,” Bostock v. Clayton Cnty., 140

S. Ct. 1731, 1738 (2020), public input through noticeand-comment rulemaking should, other things equal,

lead the law in the direction of its proper public

meaning. Requiring notice-and-comment rulemaking,

then, would serve as a “surrogate safeguard[] for the

protections in the Constitution itself.” Sunstein, supra,

at 225.

In sum, limiting Chevron deference to cases in

which Congress has expressly granted an agency

authority to issue a particular rule subject to public

notice and comment procedures would promote the

separation of powers. That separation is a bulwark

against tyranny. See The Federalist No. 47, at 324

(Madison) (J. Cooke ed. 1961) (“The accumulation of

all powers, legislative, executive, and judiciary, in the

same hands, whether of one, a few, or many, and

whether hereditary, self-appointed, or elective, may

justly be pronounced the very definition of tyranny.”).

“The Constitution carefully imposes structural

constraints on all three branches, and the exercise of

power free of those accompanying restraints subverts

the design of the Constitution’s ratifiers.” Baldwin,

140 S. Ct. at 691 (Thomas, J., dissenting from denial

of certiorari). “When the Executive exercises judicial

or legislative power,” “it does so largely free of these

safeguards.” Id. at 692. Limiting Chevron deference to

rules after notice and comment would minimize the

difference between how the executive power is

exercised now through the “headless fourth branch of

government,” City of Arlington, 569 U.S. at 314

(Roberts, J., dissenting), and how it should be under

the Constitution’s design.

B. Limiting Chevron’s presumption to noticeand-comment

rulemaking

makes

interpretive sense.

If nothing else, applying Chevron only to rules

issued after notice and comment makes sense as a

matter of congressional intent. The Court has said that

“accord[s]

deference

agencies

under

Chevron . . . because of a presumption that Congress,

when it left ambiguity in a statute meant for

implementation by an agency, understood that the

ambiguity would be resolved, first and foremost, by the

agency.” Smiley, 517 U.S. at 740–741. Put another

way, Chevron deference “arises out of background

presumptions of congressional intent.” Dunn v. CFTC,

519 U.S. 465, 479 n.14 (1997). Of course, “Chevron’s

attribution of a general intention to Congress that

agencies be the front-line interpreters of regulatory

statutes has been described by” Justice Scalia, once

the doctrine’s “strongest defender,” “as ‘fictional.’”

Merrill & Hickman, supra, at 871–72. Still, “for

Chevron deference to apply, the agency must have

received congressional authority to determine the

particular matter at issue in the particular manner

adopted.” City of Arlington, 569 U.S. at 306.

Mead already held that courts should only presume

such authority was given to the agency if

“circumstances implying such [a congressional]

expectation exist.” 533 U.S. at 229. “[A] very good

indicator of delegation meriting Chevron treatment” is

“express congressional authorizations to engage in the

process of rulemaking.” Id. “It is fair to assume

generally that Congress contemplates administrative

action with the effect of law when it provides for a

relatively formal administrative procedure tending to

foster the fairness and deliberation that should

underlie a pronouncement of such force.” Id. at 230. As

Professor Sunstein put it, “[t]he best reconstruction of

congressional will is that agencies receive Chevron

deference if and only if they have availed themselves

of” such procedures. Supra, at 225; see Merrill &

Hickman, supra, at 878 (arguing that “the

combination of enacting an ambiguous statute and

conferring powers on an agency to make legally

binding decisions under that statute represents a

choice to give the agency the primary power of

interpretation”).

This presumption echoes the presumption

underlying the Court’s major questions doctrine. As

the Court recently explained that presumption, it will

“not assume that Congress entrusted [the

interpretation of a major question] to an agency

without a clear statement to that effect.” Biden, 600

U.S. at ___ (slip op., at 24). “[S]eparation of powers

principles and a practical understanding of legislative

intent” form the foundation of the major questions

doctrine. West Virginia, 142 S. Ct. at 2609. The Court

presumes Congress’s intent to reserve major questions

to itself because “the balance of power between those

in a relationship inevitably frames our understanding

of their communications. And when it comes to the

Nation’s policy, the Constitution gives Congress the

reins.” Biden, 600 U.S. at ___ (Barrett, J., concurring)

(slip op., at 10); see also U.S. Const. art. 1, § 1; Gundy,

139 S. Ct. at 2141 (Gorsuch, J., dissenting) (“[T]he

‘major questions’ doctrine . . . [allows] an agency [to]

fill in statutory gaps where ‘statutory circumstances’

indicate that Congress meant to grant it such

powers.”).

Mead, however, declined to take the logical next

step of requiring the notice and comment procedure as

evidence of congressional intent. It stated that “as

significant as notice-and-comment is in pointing to

Chevron authority, the want of that procedure here

does not decide the case.” Mead, 533 U.S. at 230–31.

The Court in Mead had no need to go that far, as there

were “ample reasons to deny Chevron deference” there.

Id. at 231. But as the decision below makes clear, it is

now time for the Court to extend Mead’s logic and limit

Chevron deference to rules requiring notice-andcomment procedures.

Not only would such an extension be more

consistent with the presumption about congressional

intent underlying Mead and Chevron, but it would also

provide a more stable rule against which Congress

could legislate. This Court has pointed out the

significance of having a stable background rule so that

Congress’s legislation can have “predictable effects.”

Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 261

(2010); see also City of Arlington, 569 U.S. at 296

(stating that stability allows Congress to know exactly

when,

“within

the

bounds

reasonable

interpretation,” an agency can resolve “[s]tatutory

ambiguities”). Though the Court has said that Chevron

“provides a stable background rule,” id., the

uncertainty and questions surrounding the doctrine

over the three decades since it was established

undermine its stability. Limiting Chevron deference to

rules requiring notice-and-comment procedures would

prevent Congress from questioning whether its

delegation is explicit enough. It would also prevent

situations like the one that has now enveloped the

New England fishing industry, in which Congress’s act

of explicitly allowing for a certain procedure to be

established in some contexts, but not explicitly

mentioning it in others, is interpreted broadly as a

license to do it anywhere. See App. 33 (Walker, J.,

dissenting). Instead, Congress would have to grant

rulemaking authority, subject to the notice-andcomment process, over a particular area before

deference would be given to an agency’s interpretation.

This would render Chevron’s threshold determination,

laid out in Mead, predictable and concrete by defining

exactly what a rule carrying the force of law is. See

Mead, 533 U.S. at 226–27.

After Mead, many lower courts have assumed that

only notice-and-comment rulemaking can create a rule

carrying the force of law and qualifying for Chevron

deference. See, e.g., Lopez v. Terrell, 654 F.3d 176,

182–83 (2d Cir. 2011) (declining to apply Chevron

deference to a decision given in a Bureau of Prisons

Administrative Remedy Program letter due to the lack

of the notice-and-comment process); Freeman v.

Quicken Loans, Inc., 626 F.3d 799, 805 (5th Cir. 2010)

(“Where the agency has not used a deliberative process

such as notice-and-comment rulemaking . . . the court

cannot presume Congress intended to grant the

interpretation the force of law”); Bradley v. Sebelius,

621 F.3d 1330, 1338 & n.18 (11th Cir. 2010) (rejecting

HHS claim to Chevron deference for a Medicare field

manual lacking approval via the notice-and-comment

process).

But the D.C. Circuit has applied Chevron

notwithstanding the lack of congressionally mandated

notice-and-comment rulemaking. See Vill. Of

Barrington v. Surface Transp. Bd., 636 F.3d 650, 658–

59 (D.C. Cir. 2011) (holding that the lack of notice and

comment rulemaking did not prevent Chevron

deference from applying); Mylan Labs., Inc. v.

Thompson, 389 F.3d 1272, 1279 (D.C. Cir. 2004)

(similar). At a minimum, then, the Court should clarify

Mead to explain that the presumption of congressional

intent to delegate the interpretation of ambiguities

applies only where Congress has also required noticeand-comment procedures.

If such a limitation is adopted, then no deference is

due to the NMFS or to other agencies governed by

similar statutes. The operative section of the MSA

does not explicitly authorize the NMFS to engage in

rulemaking subject to public notice and comment to

create this type of policy. There is no statutory text in

the MSA directing the NMFS to prescribe

compensation rates—to be paid by the fishermen—of

mandated observers on the herring boats of New

England fishermen. Rather, the MSA grants the

agency the ability to license, illustrated by the fact that

the punishment for not paying an observer fee involves

revoking, suspending, denying, or limiting the owner

or operator’s permit. 16 U.S.C. § 1858(g). A “license”

and “licensing” under the APA are separate and

distinct from a “rule” and “rulemaking.” 5 U.S.C.

§ 551.

To give effect to Chevron’s underlying presumption

of congressional intent—and to limit the doctrine’s

constitutional shortcomings—a court should not

employ Chevron deference unless it finds an explicit

congressional delegation of authority to create a

particular rule subject to the public notice-andcomment process.

III. Deference to Article II powers does not

translate to Chevron deference to agency

policymaking.

Last, to the extent the Court retains any form of

Chevron deference, it should make clear that deference

does not apply to agency policymaking decisions made

outside the Executive’s traditional Article II powers—

and particularly not regulatory decisions made under

the federal government’s Commerce Clause power.

That power, of course, resides in Congress. U.S. Const.

art. I, § 8, cl. 3. Thus, deference to agency policymaking

choices issued pursuant to a Commerce Clausejustified statute is different from the (appropriate)

deference shown to the Executive Branch, when it

exercises core Article II power in areas like national

defense, foreign affairs, and public safety and

immigration. Though the courts should defer to the

Executive in appropriate situations when it exercises

its own power, courts should not blind themselves to

the reality that agency policy regulations of businesses

are often an exercise of the legislative power. And if

the Court cannot resolve that problem on nondelegation grounds, the least it can do is to decline to

defer to the resulting policy choices on matters of

statutory interpretation.

A. Courts appropriately defer to certain

executive exercises of Article II power.

The Executive’s Article II powers are “confined and

defined”—but important. 4 The President “shall be

Commander in Chief” of the United States’ armed

forces; may “grant Reprieves and Pardons” to federal

offenders; may “make Treaties” and appoint public

ministers, judges, and federal officers “by and with the

Advice and Consent of the Senate”; may make recess

appointments; shall deliver reports on the “State of the

Union”; may convene and adjourn Congress; may

receive ambassadors and public ministers; shall “take

Care that the Laws be faithfully executed”; and shall

commission all federal officers. U.S. Const. art. II,

§§ 2–3; see also 8 U.S.C. § 1103(a) (noting the

Secretary of Homeland Security’s broad immigration

and naturalization powers).

In many contexts, courts defer to the Executive’s

exercise of these powers over national security, safety,

and foreign affairs. See, e.g., Dep’t of Navy v. Egan, 484

U.S. 518, 529–30 (1988) (“‘As to these areas of Art. II

duties the courts have traditionally shown the utmost

deference to Presidential responsibilities.’” (quoting

United States v. Nixon, 418 U.S. 683, 710 (1974)));

Regan v. Wald, 468 U.S. 222, 243 (1984) (emphasizing

“the traditional deference to executive judgment ‘[i]n

4 1 The Records of the Federal Convention of 1787 70 (Max

Farrand ed., 1911) (King’s Notes, June 1, 1787).

this vast external realm’” (quoting United States v.

Curtiss–Wright Exp. Corp., 299 U.S. 304, 319 (1936))).

That deference is especially strong when it comes to

“military and national security affairs,” where “courts

traditionally have been reluctant to intrude upon the

authority of the Executive.” Egan, 484 U.S. at 530; see

Hamdan v. Rumsfeld, 548 U.S. 557, 623 (2006)

(“assum[ing] that complete deference is owed [the

President’s] determination” of whether certain legal

rules are practicable in a trial by military commission);

Swaim v. United States, 165 U.S. 553 (1897)

(upholding the proceedings of a court-martial

convened by the President); see generally Hamdi v.

Rumsfeld, 542 U.S. 507, 580–86 (2004) (Thomas, J.,

dissenting) (discussing the President’s broad authority

in the national security context).

Because the President acts as “the Nation’s organ

in foreign affairs,” Chi. & S. Air Lines v. Waterman S.

S. Corp., 333 U.S. 103, 109 (1948), “the Court has

taken care to avoid the danger of unwarranted judicial

interference in the conduct of foreign policy, and

declined to run interference in the delicate field of

international relations without the affirmative

intention of the Congress clearly expressed,” Biden v.

Texas, 142 S. Ct. 2528, 2543 (2022) (cleaned up). “That

is no less true in the context of immigration law, where

the dynamic nature of relations with other countries

requires the Executive Branch to ensure that

enforcement policies are consistent with this Nation’s

foreign policy.” Id. (cleaned up).

A similarly deferential approach applies to many

other articulated Article II powers. The pardon power

has “[s]eldom, if ever” “been subjected to review by the

courts.” Solesbee v. Balkcom, 339 U.S. 9, 12 (1950),

abrogated on other grounds by Ford v. Wainwright,

477 U.S. 399 (1986). So too the powers to deliver

reports on the State of the Union and to convene and

adjourn Congress. The power to commission officers

has undergone judicial review only to decide whether

the officer had been commissioned. United States v. Le

Baron, 60 U.S. (19 How.) 73, 79 (1856) (concerning the

validity of a postmaster’s presidential commission);

Marbury, 5 U.S. (1 Cranch) at 151 (concerning the

commissioning of an executive officer). The

appointment power is similarly uncomplicated, see

Edmond v. United States, 520 U.S. 651, 659 (1997),

though the recess appointment power underwent some

review to determine what period constitutes a recess,

see generally NLRB v. Noel Canning, 573 U.S. 513

(2014) (discussing the scope of the power). The rise of

independent agencies has complicated review of the

removal power, but the Court is trending toward a

deferential approach there as well. See Seila Law LLC

v. CFPB, 140 S. Ct. 2183, 2191–92 (2020).

In short, the Court often and properly defers, at

least to some extent, to the Executive’s exercise of its

Article II powers, even when that exercise implicates

questions of legal interpretation.

B. Chevron should not apply to policymaking

governing private entities under the

Commerce Clause.

Some commentators have suggested that Chevron

deference can be similarly justified as another

manifestation of judicial hesitation to interfere with

the Executive’s exercise of its Article II powers. E.g.,

E. Garrett West, A Youngstown for the Administrative

State, 70 Admin. L. Rev. 629, 650–53 (2018). But that

can only be true if the Executive is engaging in the

exercise of its traditional Article II powers. And the

ordinary Chevron case involves no such exercise.

Instead, the typical Chevron case—like this one—

involves agency policymaking under a statute passed

pursuant to Congress’s Commerce Clause authority.

In such cases, Chevron deference is improper.

As discussed above, Chevron’s interpretive

presumption is (per Justice Scalia) “fictional.” Merrill

& Hickman, supra, at 872. It is another “fiction” that

agencies setting policies to regulate private entities

are just exercising the executive power to enforce the

law and incidentally interpret it. (This stacking of

fiction upon fiction should suggest a deeper problem

with

Chevron.)

Again,

“as

Chevron

itself

acknowledged, [such agencies] are engaged in the

“‘formulation of policy’”—“formulat[ing] legally

binding rules to fill in gaps based on policy judgments

made by the agency rather than Congress.” Michigan,

576 U.S. at 762 (Thomas, J., concurring). They are, in

short, exercising the legislative prerogative to set

policy under the power granted to Congress via (in

most cases) the Commerce Clause. U.S. Const. art. I,

§ 8, cl. 3.

The Executive’s Article II powers contain no

analogue to Congress’s Commerce Clause power. And

generally, the enumeration of a power means the

exclusion of other powers left unmentioned. See, e.g.,

Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018)

(applying the “Negative-Implication Canon,” defined

as the principle that “[t]he expression of one thing

implies the exclusion of others (expressio unius est

exclusio alterius)”). The founders were of course

familiar with this maxim, and they included

corresponding war powers in Articles I and II, giving

the Executive and legislative some overlapping

jurisdiction over military issues. U.S. Const. art. I, § 8,

cl. 11–16; id. art. II, § 2, cl. 1. But no Article II power

hints at giving the executive authority to regulate

private entities engaged in commerce. Instead, the

“Founders of this Nation entrusted the lawmaking

power to the Congress alone in both good and bad

times.” Youngstown, 343 U.S. at 589.

Therefore, the contrast between the exercise of

traditional Article II powers and agency policymaking

underscores the inappropriateness of applying

Chevron deference in cases like this one. Again, in an

ideal world, agencies could not engage in Article I

policymaking at all. But until the Court returns to that

world, it should abandon an undue standard of

deference to regulatory legislative actions by

administrative agencies. “[C]ourts need not defer to an

agency’s interpretation, reasonable or otherwise, of a

non-existent grant of power.” Slater, 231 F.3d at 10

(Sentelle, J., concurring). Chevron deference should

not generally apply to agency regulation of private

entities under Commerce Clause statutes.

CONCLUSION

The Court should reverse.

Respectfully submitted,