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

No. 22-451

IN THE

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES,

ET AL., Petitioners,

v.

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE THE FOUNDATION

FOR GOVERNMENT ACCOUNTABILITY IN

SUPPORT OF PETITIONERS

July 21, 2023

STEWART L. WHITSON

Counsel of Record

DAVID CRAIG

SOFIA DEVITO

CAROLINE M. B. MILLER

RYAN YOUNG

THE FOUNDATION FOR

GOVERNMENT ACCOUNTABILITY

15275 Collier Blvd., Ste. 201

Naples, FL 34119

(239) 244-8808

stewart@theFGA.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

Introduction & Summary of Argument .....................2

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

I. Chevron Abdicates the Judiciary’s

Constitutional and Statutory Duty to

Interpret the Law and, in Effect, Delegates

that Power to Unelected Bureaucrats ...........4

A. Chevron robs the judiciary of its power to

interpret statutes and hands that power to

executive branch agencies .........................5

B. Chevron is at odds with the APA’s judicial

review provisions........................................6

II. Chevron Spurs the Growth of the

Administrative State, Weakens Congress,

and Undermines Our System of Checks and

Balances ..........................................................9

A. Chevron emboldens agencies to unilaterally

expand their power and promotes

“reflexive deference” ...................................9

B. The expansion of the administrative state

has been accelerated by Chevron at great

cost ............................................................ 12

C. Congress has been enervated by Chevron

and incentivized to punt hard political

questions to unaccountable bureaucrats.13

D. By encouraging the creation of more rules

and regulations, Chevron has undermined

personal liberty ........................................ 15

ii

III. Replacing Chevron with a Framework that

Restores the Separation of Powers While

Promoting Consistency and Predictability in

its Application will Solve More Problems

than it Creates .............................................. 16

A. The supposed costs of abandoning Chevron

are unfounded........................................... 16

B. Chevron takes the duty to interpret statutes

away from competent courts and hands it

to less capable, biased bureaucrats leading

to inconsistent interpretations that change

with each new administration ................. 18

C. Chevron’s confusing framework raises costs

while promoting inconsistency and

unpredictability in its application ........... 21

Conclusion ................................................................. 22

iii

TABLE OF AUTHORITIES

Cases

Azar v. Gresham,

141 S. Ct. 1043 (2021) ............................................. 1

Biden v. Nebraska,

600 U.S. __ (2023) ............................................. 1, 21

Buffington v. McDonough,

143 S. Ct. 14 (2022) ......................................... 10, 20

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

Council, Inc.,

467 U.S. 837 (1984) ...................................... passim

Cohens v. Virginia,

19 U.S. 264 (1821) .................................................. 6

Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs.

Ass’n of Am., Ltd.,

143 S. Ct. 978 (2023) ............................................... 1

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .............................. 5

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ................................................ 9

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803). ..................... 2, 3, 4, 6

Michigan v. EPA,

576 U.S. 743 (2015) .................................... 3, 5, 6, 7

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

Servs.,

545 U.S. 967 (2005) ............................................ 3, 5

New York v. United States,

505 U.S. 144 (1992) ................................................ 6

iv

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ........................................9-10

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ........................................ 5, 8, 19

Sackett v. EPA,

143 S. Ct. 1322 (2023) .......................................... 12

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ................................................ 5

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .......................................... 12

Zivotofsky v. Clinton, 566 U.S. 189 (2012) ................ 6

Constitution

U.S. CONST. art. III, §1 ..................................... 2-3, 4, 6

Statutes

5 U.S.C. §706 ................................................... 3, 6, 7, 8

5 U.S.C. §706(2)(A) ...................................................... 7

Regulations

62 Fed. Reg. 16894 (Apr. 8, 1997) ............................. 19

81 Fed. Reg. 38019 (Jul. 10, 2016) ............................ 20

83 Fed. Reg. 38212 (Aug. 3, 2018) ............................ 20

87 Fed. Reg. 67413 (Nov. 8, 2022) ............................ 11

88 Fed. Reg. 3482 (Jan. 19, 2023) ............................. 11

88 Fed. Reg. 44596 (Jul. 12, 2023) ............................ 20

v

Other Authorities

92 Cong. Rec. 5654 (1946) .......................................... 8

A-Z Index of U.S. Government Departments and

Agencies, USAgov (2023), bit.ly/3PgDYJx ........... 12

Abbe R. Gluck & Lisa Schultz Bressman, Statutory

Interpretation from the Inside – An Empirical

Study of Congressional Drafting, Delegation, and

the Canons: Part I, 65 STAN. L. REV. 901, 996

(2013), bit.ly/3pY7ZUn .......................................... 14

Alexander Hamilton, The Federalist Papers, No. 78,

(May 28, 1788), The Avalon Project, Yale Law

School, Lillian Goldman Law Library,

bit.ly/3PYxOhG ................................................. 4, 19

Alli Fick, Haley Holik & Jonathan Ingram, Congress

Must Rein in President Biden’s Regulatory

Spending Spree to Tame Inflation, FGA (Jul. 26,

2022), bit.ly/3j4AP1U .......................................12-13

APA Legislative History of the Administrative

Procedure Act,

S. Doc. No. 79-248, at 370 (1946) .......................... 8

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 HARV. L. REV. 2118 (2016) ...15,

21

Dissenting Statement of Commissioner Noah Joshua

Phillips, Regarding the Commercial Surveillance

and Data Security Advance Notice of Proposed

Rulemaking, FTC (Aug. 11, 2022),

bit.ly/3pWVPeq ..................................................... 11

vi

Fact Sheet: President Biden Announces Student Loan

Relief for Borrowers Who Need It Most, The White

House Briefing Room (Aug. 24, 2022),

bit.ly/44O9Z0c ..................................................20-21

Farrington and Greenfield, Antitrust Scrutiny

Intensifies as DOJ and FTC Step Up Enforcement,

White & Case (Jan. 27, 2023), bit.ly/43y7CgT ..... 10

Federal Register Pages Published Annually, LLSDC

(2020), bit.ly/3peYBew .......................................... 13

Jack M. Beerman, Article: End the Failed Chevron

Experiment Now: How Chevron Has Failed and

Why It Can and Should Be Overruled, 42 CONN. L.

REV. 779, 836 (Feb. 2010) ......................... 17-18, 22

K. Saunders, Agency Interpretations and Judicial

Review: A Search for Limitations on the

Controlling Effect Given Agency Constructions, 30

ARIZ. L. REV. 769, 788-789 (1988) .......................... 9

Michael Greibrok, The Biden Administration’s Action

on Short-Term Health Plans Will Only Harm

Americans, FGA (Jul. 13, 2023), bit.ly/3pPpDd0 . 19

M. Vile, Constitutionalism and the Separation of

Powers, 360 (2d ed. 1998) ...................................... 5

Memorandum to Betsy DeVos Secretary of Education,

Re: Student Loan Principal Balance Cancelation,

Compromise, Discharge, and Forgiveness

Authority, U.S. Department of Education, Office of

the General Counsel (Jan. 12, 2021),

bit.ly/46TpqWK ..................................................... 20

Petitioners’ Brief for Cert., (Nov. 10, 2022) p. 31,

bit.ly/3Om9t46 ...................................................... 16

vii

The Secretary’s Legal Authority for Broad-Based Debt

Cancellation Under the Higher Education Relief

Opportunities for Students Act of 2003, U.S.

Department of Education, Office of the General

Counsel (Apr. 8, 2021), bit.ly/3OlePg5 ............20-21

The United States Government Manual, 1984-85,

Office of the Federal Register, GS 4.109:984-85

(Jan. 1, 1984), bit.ly/3On1Dr8 .............................. 12

1

INTEREST OF AMICUS CURIAE *

The Foundation for Government Accountability

(FGA) is a 501(c)(3) non-profit organization that helps

millions achieve the American Dream by improving

welfare, workforce, health care, and election policy at

both the state and federal levels. Launched in 2011,

FGA promotes policy reforms that seek to free individuals from the trap of government dependence, restore

dignity and self-sufficiency, and empower individuals

to take control of their futures. FGA’s policy reforms

are grounded in the principles of government transparency, the free market, individual freedom, and limited constitutional government.

Since its founding, FGA has helped achieve more

than 781 reforms impacting policies in 42 states as

well as 27 federal reforms. FGA supports its mission

by conducting innovative research, deploying outreach and education initiatives, equipping policy makers with the information they need to achieve meaningful reforms, and by appearing amicus curiae before

state and federal courts including the U.S. Supreme

Court in Azar v. Gresham, 141 S. Ct. 1043 (2021),

Biden v. Nebraska, 600 U.S. __ (2023), and Consumer

Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am.,

Ltd., 143 S. Ct. 978 (2023).

* Per this Court’s Rule 37.6, this brief was not authored in

whole or in part by any party, and no one other than amicus or

its counsel made a monetary contribution to its preparation or

submission.

2

The case at issue here centers on an improper abdication of judicial power to an executive branch

agency, the National Marine Fisheries Service

(NMFS), under Chevron. See Chevron U.S.A., Inc. v.

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

(1984). Chevron violates the Constitution’s structural

separation of powers and robs the judiciary of its constitutional right to interpret law, handing that power

instead to unelected bureaucrats within the ever-expanding administrative state. Id. This abdication of

the judiciary’s interpretation power to the executive

branch has undermined the separation of powers required to maintain a limited, constitutional government. It has also created a legal framework that fosters inconsistent and unpredictable results while raising costs in myriad ways. Given the immense regulatory power NMFS wields over the fishing and other

industries, including the individuals and familyowned businesses eking out a living through honest,

hard work, free market principles and individual liberty are also severely threatened. Accordingly, this

case directly implicates FGA’s core mission of promoting limited, constitutional government, a free market,

and individual liberty. For these reasons, FGA stands

in support of Petitioners.

INTRODUCTION &

SUMMARY OF ARGUMENT

Under the U.S. Constitution, judicial power is

vested exclusively in Article III courts, and “[i]t is

emphatically the province and duty of the judicial

department to say what the law is.” U.S. CONST. art.

3

III, §1; Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803).

Chevron, however, “precludes judges from

exercising that judgment, forcing them to abandon

what they believe to be ‘the best reading of an

ambiguous statute’ in favor of an agency’s

construction.” Michigan v. EPA, 576 U.S. 743, 761

(2015) (Thomas, J., concurring) (quoting Nat’l Cable &

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

967, 983 (2005)). It “wrests from Courts the ultimate

interpretative authority to ‘say what the law is’” and

hands it over to the Executive.” Id. at 761 (quoting

Marbury, 5 U.S. at 177). This abdication of power is

clearly at odds with the Constitution and coupled with

the doctrine’s blatant inconsistency with the statutory

language of the Administrative Procedure Act (APA),

provides the Court all the justification it needs to

overrule Chevron. See U.S. CONST. art. III, §1; see also

5 U.S.C. §706.

Besides violating the Constitution’s separation of

powers, Chevron has created a host of other problems.

It has emboldened agencies to unilaterally expand

their power, accelerated the growth of the

administrative state, weakened Congress and

encouraged it to punt difficult political questions to

unelected bureaucrats, and has significantly

undermined personal liberty.

Chevron has failed to live up to its promise. It has

created more costs and promoted far more litigation

than it has discouraged, while offering no real protection from unaccountable judges wishing to push their

4

political preferences. Replacing Chevron with a new

framework that restores the separation of powers

while promoting consistency and predictability in its

application will solve more problems than it creates.

Overruling Chevron would also make judicial review much more straight forward. It would simplify

litigation, reduce costs, and return responsibility for

interpreting statutes to the judiciary, where it belongs.

For these reasons and more, this Court should

overrule Chevron.

ARGUMENT

I.

Chevron Abdicates the Judiciary’s

Constitutional and Statutory Duty to

Interpret the Law and, in Effect, Delegates

that Power to Unelected Bureaucrats

Under the U.S. Constitution, judicial power is

vested exclusively in Article III courts, and “[i]t is

emphatically the province and duty of the judicial

department to say what the law is.” U.S. CONST. art.

III, §1; Marbury, 5 U.S. at 177. As the Framers

eloquently noted, “[t]he interpretation of the laws is

the proper and peculiar province of the courts.”

Alexander Hamilton, The Federalist Papers, No. 78,

(May 28, 1788), The Avalon Project, Yale Law School,

Lillian Goldman Law Library, bit.ly/3PYxOhG.

Judicial power is the power to resolve cases or

controversies by making an independent judgment of

what the law is and applying the law to the facts.

5

Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 119

(2015)

(Thomas,

J.,

concurring).

Statutory

interpretation in a case or controversy, including

those involving an administrative agency, is the

exercise of judicial power. Id. at 122.

It is of course necessary and proper for the

executive branch and its agencies to interpret existing

law when performing executive functions, but such

interpretation is not the exercise of judicial power and

therefore it should have no authority in court. Id. at

119-20. A court may, of course, adopt an executive

branch interpretation, but only by exercising the

judicial power which requires independently judging

that the interpretation is correct. Id. (citing M. Vile,

Constitutionalism and the Separation of Powers, 360

(2d ed. 1998)). This form of deference, sometimes

called Skidmore deference, is not actually deference at

all, but rather an independent, reasoned agreement

made by a court, with a persuasive interpretation of

the executive branch. See Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944).

A. Chevron robs the judiciary of its power to

interpret statutes and hands that power

to executive branch agencies

But Chevron “precludes judges from exercising

that judgment, forcing them to abandon what they

believe is ‘the best reading of an ambiguous statute’ in

favor of an agency’s construction.” Michigan, 576 U.S.

at 761 (quoting Brand X, 545 U.S. at 983). Chevron is,

therefore, “no less than a judge-made doctrine for the

abdication of the judicial duty.” Gutierrez-Brizuela v.

6

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

J., concurring). It “wrests from Courts the ultimate

interpretative authority to ‘say what the law is’” and

hands it over to the Executive.” Michigan, 576 U.S. at

761 (quoting Marbury, 5 U.S. at 177).

This abdication of power is clearly at odds with the

Constitution, even if voluntarily ceded by the

judiciary. See U.S. CONST. art. III, §1; New York v.

United States, 505 U.S. 144, 182 (1992). As the Court

has made clear, “[t]he Constitution’s division of power

among the three branches is violated where one

branch invades the territory of another, whether or

not the encroached-upon branch approves the

encroachment.” New York, 505 U.S. at 182. At the end

of the day, “the judiciary has a responsibility to decide

cases properly before it, even those it ‘would gladly

avoid.’” Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012)

(citing Cohens v. Virginia, 19 U.S. 264, 257 (1821)).

Chevron hands that responsibility to executive branch

agencies. The Constitution forbids this.

B. Chevron is at odds with the APA’s judicial

review provisions

Apart from the constitutional issues Chevron

raises, the doctrine’s blatant inconsistency with the

statutory language of the Administrative Procedure

Act (APA) is also problematic. See 5 U.S.C. §706.

Chevron deference is premised on the idea that

whenever Congress leaves “ambiguity in a statute

meant for implementation by an agency” it does so

with the understanding that “the ambiguity would be

7

resolved, first and foremost, by the agency, and [that

Congress] desired the agency (rather than the courts)

to possess whatever degree of discretion the ambiguity

allows.” Michigan, 576 U.S. at 761. But this premise

is hard to reconcile with the plain language of the

Administrative Procedure Act (APA), which says

nothing about granting agencies such deference. See

5. U.S.C. §706. In fact, the APA expressly states the

opposite. Id.

The APA is, of course, the statute Congress

created to govern judicial review of executive agency

action based on the agency’s interpretation of a

statute it administers. Id. Yet, nowhere in the text of

the APA did Congress even suggest that courts should

afford deference to executive agency interpretation of

an otherwise ambiguous statute when conducting

judicial review. Id. Instead, the APA expressly

delegates this interpretive power to the courts. See 5.

U.S.C. §706. The APA states, “the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the terms of

an agency action.” Id. Lest there be any doubt of what

Congress intended through this plain language, it

added another provision in §706, stating, “[t]he

reviewing court shall hold unlawful and set aside

agency action, findings, and conclusions found to be

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§706(2)(A).

to

While the plain language of the APA is all we need

resolve this issue, the legislative history

8

surrounding the text of the APA also makes clear

Congress’ expectation that courts, as the Constitution

requires, would make independent interpretations of

statutory provisions when reviewing APA cases. The

author of the House Committee Report on the bill and

Chairman of the House Subcommittee on

Administrative Law explained to the house shortly

before it passed the APA, that the judicial review

provision of the APA, 5 U.S.C. §706, “requires courts

to determine independently all relevant questions of

law, including the interpretation of constitutional or

statutory provisions.” 92 Cong. Rec. 5654 (1946)

(statement of Rep. Walter), reprinted in APA

Legislative History of the Administrative Procedure

Act, S. Doc. No. 79-248, at 370 (1946) [emphasis

added].

Given the clear inconsistency of Chevron with the

APA, and Chevron’s requirement that courts “opt out

of exercising their [constitutional duty to] check” the

power of the executive branch, undermining the

constitutional bedrock principles of separation of

powers and checks and balances, the Court has a

strong basis to support overruling Chevron. See Perez,

575 U.S. at 125 (Thomas, J., concurring); see also 5

U.S.C. §706.

9

II. Chevron Spurs the Growth of the

Administrative State, Weakens Congress,

and Undermines Our System of Checks and

Balances

A. Chevron emboldens agencies to unilaterally expand their power and promotes

“reflexive deference”

Federal executive agencies possess only those

powers conferred upon them by Congress through

statute. La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355,

374 (1986). But the “abdication of the judiciary’s

proper role in interpreting federal statutes. … [has led

to a kind] of reflexive deference” where courts seem to

blindly agree with agency claims of statutory ambiguity with only a “cursory analysis.” Pereira v. Sessions,

138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring).

“So long as Executive Branch officials can identify a

statutory ambiguity or silence, [courts] must assume

that the law permits them to judge the scope of their

own powers and duties—at least so long as their decisions can be said to be ‘reasonable.’” Buffington v.

McDonough, 143 S. Ct. 14, 19 (2022) (Gorsuch, J., dissenting) (citing K. Saunders, Agency Interpretations

and Judicial Review: A Search for Limitations on the

Controlling Effect Given Agency Constructions, 30

ARIZ. L. REV. 769, 788-789 (1988)).

Chevron deference, and particularly the “reflexive

deference” described by Justice Kennedy, has emboldened agencies to expand the scope of their congressionally delegated power, transforming their agencies

into national policymakers rather than administrators of the will of Congress. See Pereira, 138 S. Ct. at

10

2120. Doing away with this reflexive deference and returning the responsibility for interpreting federal

statutes to the courts would serve as an important

check on the ever-increasing power of federal agencies. It would require a neutral third party, the courts,

to independently confirm the authority an agency is

claiming to have been delegated, rather than allowing

the agency itself to assert such power. The system of

checks and balances undermined by Chevron would,

thus, be restored. “Ambition [would] be made to counteract ambition.” James Madison, The Federalist Papers, No. 51 (Feb. 8, 1788), The Avalon Project, Yale

Law School, Lillian Goldman Law Library,

bit.ly/3NidIw1.

More troubling still, Chevron has steadily weakened the general presumption that law enforcement

should decline to act where the law is silent, and instead, has encouraged executive branch enforcement

agencies to actively work to “fill the gaps” in laws

wherever their unelected bureaucrats see fit by unilaterally creating new legal requirements outside the

legislative process.

The Federal Trade Commission (FTC), for example, has embraced a culture of stretching the limits of

its statutory authority to advance the political agenda

of the current administration. This is prevalent in areas like anti-trust, where the agency has aggressively

challenged a wide range of vertical corporate mergers

while waging political battle on big tech companies.

See Farrington and Greenfield, Antitrust Scrutiny Intensifies as DOJ and FTC Step Up Enforcement,

White & Case (Jan. 27, 2023), bit.ly/43y7CgT. These

11

battles are aimed not at protecting consumers or promoting fair competition, but to advance the political

agenda of the FTC’s current director.

In addition, the FTC has sought to expand its

reach into labor regulation by seeking to ban all noncompete agreements across the country, dubiously

claiming authority by labeling non-compete agreements as an “unfair method of competition.” See 88

Fed. Reg. 3482 (Jan. 19, 2023).

Late last year, the FTC announced it will seek to

regulate so-called “junk fees,” which it loosely defines

as any fee charged by any business that falls within

FTC’s ever-expanding jurisdiction and that is

“charged for goods or services that have little or no

added value to the consumer.” 87 Fed. Reg. 67413

(Nov. 8, 2022). Who decides whether the goods or services provide value to the consumer? Presumably,

that’s left to the discretion of the FTC director.

Even one of FTC’s own former commissioners has

voiced concern over its repeated efforts to expand the

scope of its power beyond its statutory authority. Dissenting Statement of Commissioner Noah Joshua

Phillips, Regarding the Commercial Surveillance and

Data Security Advance Notice of Proposed Rulemaking, FTC (Aug. 11, 2022), bit.ly/3pWVPeq. The commissioner warned that the FTC is seeking to regulate

“common business practices [the FTC] has never before even asserted are illegal” and “to mandate

changes across huge swaths of the economy” to “recast

the agency as a civil rights enforcer.” Id.

12

Examples of other agencies routinely disregarding

the limits of their statutorily delegated power abound.

See, e.g., West Virginia v. EPA, 142 S. Ct. 2587 (2022)

(EPA found to have exceeded its statutory authority

under the Clean Air Act); see also, e.g., Sackett v. EPA,

143 S. Ct. 1322 (2023) (EPA found to have exceeded

its statutory authority under the Clean Water Act).

Clearly, Chevron has emboldened more than just

the NMFS to unilaterally expand the scope of its

power by claiming authority Congress never gave it.

It has emboldened all executive branch agencies to do

so, and they will not stop until Chevron is overruled.

B. The expansion of the administrative state

has been accelerated by Chevron at great

cost

Chevron has also helped to accelerate a dramatic

expansion of the administrative state at great cost to

the economy, government accountability, and individual liberty. In 1984, the year Chevron was decided,

there were approximately 316 federal administrative

agencies. The United States Government Manual,

1984-85, Office of the Federal Register, GS 4.109:98485 (Jan. 1, 1984), bit.ly/3On1Dr8. Today, there are approximately 514, a more than sixty percent increase

in the number of agencies from 1984 to today. A-Z Index of U.S. Government Departments and Agencies,

USAgov (2023), bit.ly/3PgDYJx.

In 2021 alone, agencies published in the Federal

Register more than 75,000 pages of new proposed and

final regulations, orders, and notices governing the

13

conduct of American companies and citizens. Fick et

al, Congress Must Rein in President Biden’s Regulatory Spending Spree to Tame Inflation, FGA (Jul. 26,

2022), bit.ly/3j4AP1U. That’s roughly 24,000 more

pages of rules and regulations than were published in

1984. Federal Register Pages Published Annually,

LLSDC (2020), bit.ly/3peYBew.

Meanwhile, the Code of Federal Regulations,

which codifies all current federal regulations, now

spans more than 105 million words across nearly

190,000 pages encompassing more than 1.3 million

regulatory mandates and restrictions. Fick et al, Congress Must Rein in President Biden’s Regulatory

Spending Spree to Tame Inflation, FGA (Jul. 26,

2022), bit.ly/3j4AP1U.

Creating so much regulation comes at great economic cost. In 2021, Federal taxpayers spent nearly

$80 billion to develop, administer, and enforce federal

regulations, an amount that has more than tripled

since 2000. Id. Americans spend more than 10 billion

hours every year on regulatory compliance paperwork

at an annual cost of more than $140 billion. Id. When

accounting for compliance costs, economic losses, and

other costs, the price tag for federal regulations comes

out to a staggering $2 trillion every year. Id.

C. Congress has been enervated by Chevron

and incentivized to punt hard political

questions to unaccountable bureaucrats

Another problem with Chevron is that it has enervated Congress and incentivized it to pass vague,

14

open-ended statutes that allow administrative agencies to decide difficult policy questions in place of democratically accountable legislators. While members of

Congress benefit from not having to make hard policy

choices that could come back to haunt them in November—leaving those choices instead to unelected bureaucrats who they can later blame for unpopular decisions—democratic accountability is lost.

Chevron assumes in part that Congress intentionally embeds ambiguity into statutes to delegate interpretive authority to federal agencies. According to a

2013 survey of 137 congressional staffers drawn from

both parties, this assumption is generally true, not in

all cases, but in many cases. Gluck & Bressman, Statutory Interpretation from the Inside – An Empirical

Study of Congressional Drafting, Delegation and Canons: Part I, 65 STAN. L. REV. 901, 996 (2013),

bit.ly/3pY7ZUn.

Reaching consensus is difficult, and if the goal for

an individual serving in Congress is to be seen as doing something, anything, then it is far better to pass a

statute that leaves out the details that cannot be

agreed upon, than it is to try to resolve disagreement

and come away with nothing. By passing statutes with

ambiguous gaps for agencies to fill later, Congressional members can receive credit from their constituencies for taking action while allowing agencies to

shoulder the blame for divisive policy choices. Id.

Overruling Chevron would put the onus back on Congress to debate and decide hard political questions,

where it belongs.

15

D. By encouraging the creation of more

rules and regulations, Chevron has undermined personal liberty

With this abdication of judicial and congressional

power has come significant costs to personal liberty.

As agencies create more rules and regulations impacting the daily lives of Americans, seizing more of their

wealth while increasingly limiting personal freedom,

voters are left with no one to hold accountable at the

voting booth. With no repercussions, more rules and

regulations soon follow.

Meanwhile, agencies, confident that their interpretive decisions will be granted deference, sometimes

blindly, often claim authority they know they lack to

advance their own personal policy preferences which

never could have survived the legislative process, especially in the face of the public backlash their policies

would have drawn. Chevron, thus, encourages the executive branch “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). In the process, unelected agency

bureaucrats unilaterally expand the power of their

agency, increasingly reaching into the lives of citizens

and their businesses in ways Congress never intended.

Liberty is also undermined by the very framework

of Chevron which assumes legitimacy for authority

claimed by an agency even where the court arrives at

16

the opposite conclusion based on its own interpretation of the statute, so long as the agency’s claim is reasonable. As Petitioners eloquently state, “[i]n a liberty-loving Republic, one would expect the rule to be

that, when there is doubt about whether the executive

has authority over the governed, the tie would go to

the citizenry. But Chevron quite literally erects the

opposite rule for breaking not only ties, but anything

that can be fairly deemed ambiguous.” Petitioners’

Brief for Cert., (Nov. 10, 2022), p. 31, bit.ly/3Om9t46.

Overruling Chevron would significantly reduce

the myriad costs it has created, restore the Constitution’s separation of powers and system of checks and

balances, and ultimately, promote liberty.

III. Replacing Chevron with a Framework that

Restores the Separation of Powers While

Promoting Consistency and Predictability

in its Application will Solve More Problems

than it Creates

A. The supposed costs of abandoning Chevron are unfounded

Proponents of Chevron generally point to two supposed benefits to Chevron deference, but both are specious and neither justify upholding Chevron. First,

proponents claim there are occasionally cases where

Chevron deference enables courts to quickly resolve

controversies and dispose of the matter. This, they argue, saves resources that might otherwise be wasted

on lengthy litigation.

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The reality is that Chevron has created more costs

and promoted far more litigation than it has discouraged. “[T]he uncertainty . . . surrounding the application of Chevron and when it applies has forced courts

and litigants to expend inordinate resources on arguing over Chevron doctrine.” Jack M. Beerman, Article:

End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779, 836 (Feb. 2010). Sure, litigants might be spending fewer resources on arguing

the merits of their case, but they are spending far

more resources arguing whether Chevron should apply, and if it does, the approach the court should take

in applying its framework.

Second, proponents often cling to an argument

made by the Court in Chevron to argue that overruling

Chevron would undermine democratic accountability

as agencies are more accountable to the people than

are judges. See Chevron, 467 U.S. at 865-66. As the

Court argued in Chevron, “[w]hile agencies are not directly accountable to the people, the Chief Executive

is . . . federal judges -- who have no constituency -have a duty to respect legitimate policy choices made

by those who do.” Id.

But Chevron does not save us from unaccountable

judges wishing to push their political preferences, nor

are most agency bureaucrats subject to any kind of

real accountability. Even with Chevron, reviewing

courts may still impose their policy preferences over

those of Congress or the executive branch by simply

“brush[ing] off serious challenges to agency decisions

based in congressional intent by invoking Chevron.”

18

Jack M. Beerman, Article: End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It

Can and Should Be Overruled, 42 CONN. L. REV. 779,

836-37 (Feb. 2010). Alternatively, courts can always

find a way to avoid applying Chevron in a specific case

by “deem[ing] the case extraordinary or find[ing] a

reason why Chevron does not apply under Step Zero.”

Id.

Chevron has, thus, “provided courts with a mechanism for reducing their accountability by hiding their

decisions approving agency action behind a veneer of

deference.” Id. at 837. For “close case[s] in which the

judges agree with a controversial agency action, rather than approve the action on the merits, the court

can employ a deferential version of Chevron and plead

constraint.” Ibid. The supposed costs of overruling

Chevron are unfounded.

B. Chevron takes the duty to interpret statutes away from competent courts and

hands it to less capable, biased bureaucrats leading to inconsistent interpretations that change with each new administration

Courts are competent to interpret statutes and

possess the unique expertise to do so, even when the

statute is poorly written. And when it comes to interpreting the meaning of a statute based on congressional intent, agencies do not possess a special expertise that the judiciary lacks. In fact, the converse is

true. Courts are much better situated to interpret

statutes because they do so “guided ‘by strict rules and

19

precedents which serve to define and point out their

duty in every particular case that comes before them.’”

Perez, 575 U.S. at 120 (Thomas, J., concurring) (citing

The Federalist No. 78, at 471 (A. Hamilton)). Under

the rule of stare decisis and centuries-old principles of

statutory interpretation which govern the courts’ decision-making process, its interpretations prove far

more consistent than those of the executive branch

which can shift wildly with every new administration.

See Id. “When one administration departs and the

next arrives, a broad reading of Chevron frees new officials to undo the ambitious work of their predecessors and proceed in the opposite direction with equal

zeal.” Buffington, 143 S. Ct. at 20.

The ongoing saga involving short-term, limitedduration insurance (STLDI), often referred to as,

“short-term health plans,” offers an illustrative example of how agency interpretation of ambiguity in a particular statute can change dramatically between administrations causing significant confusion and costs

for citizens and industry.

For decades, short-term health plans were a valuable and effective health insurance option for countless individuals that offered a lower-cost option that

fit the needs of certain individuals better than did the

average plan in the individual market. See 62 Fed.

Reg. 16894 (Apr. 8, 1997); see also Michael Greibrok,

The Biden Administration’s Action on Short-Term

Health Plans Will Only Harm Americans, FGA (Jul.

13, 2023), bit.ly/3pPpDd0. However, worried that the

cost savings of short-term health plans might under-

20

mine the success of ObamaCare, the Obama administration issued a new rule reducing the length of time

individuals could purchase these plans, changing the

way these plans had been defined for nearly 20 years.

See 81 FR 38019 (Jul. 10, 2016). Then, under President Trump, the agencies reversed the action they had

taken during the Obama administration and increased the option for short-term plans from three

months to three years. See 83 FR 38212 (Aug. 3, 2018).

Now, with the Biden administration in power, these

agencies have once again taken up this issue, and

have reversed course yet again, proposing a new rule

to reduce the length of short-term health plans. See 88

Fed. Reg. 44596 (Jul. 12, 2023).

Another recent well-known example of an agency

wildly shifting its interpretation of statutory authority between administrations is the Department of Education’s actions surrounding student loan cancelation. Under the Trump administration, the Department of Education released a legal memo finding the

executive branch lacked authority to unilaterally cancel student loan debt. Memorandum to Betsy DeVos

Secretary of Education, Re: Student Loan Principal

Balance Cancelation, Compromise, Discharge, and

Forgiveness Authority, U.S. Department of Education,

Office of the General Counsel (Jan. 12, 2021),

bit.ly/46TpqWK. Yet, after President Biden took office, the same Department reversed course, releasing

a new legal memo reaching the opposite conclusion.

The Secretary’s Legal Authority for Broad-Based Debt

Cancellation Under the Higher Education Relief Opportunities for Students Act of 2003, U.S. Department

of Education, Office of the General Counsel (Apr. 8,

21

2021), bit.ly/3OlePg5; see also Fact Sheet: President

Biden Announces Student Loan Relief for Borrowers

Who Need It Most, The White House Briefing Room

(Aug. 24, 2022), bit.ly/44O9Z0c.

While the Court was ultimately able to resolve

this issue under the Major Questions Doctrine, most

of the challenged overreach efforts agencies seek to

justify by claiming new authority they suddenly discover within ambiguous statutory language is generally not going to rise to the economic or political level

needed to trigger the Major Question Doctrine. See

Biden v. Nebraska, 600 U.S. __ (2023). To stop most

unconstitutional agency overreach the Court must

overrule Chevron.

C. Chevron’s confusing framework raises

costs while promoting inconsistency and

unpredictability in its application

Much of the problem lies in the Chevron framework itself which involves multiple analytical steps

that courts interpret and apply inconsistently. This

makes Chevron deference less efficient, consistent,

and predictable than pure statutory interpretation.

Chevron rarely allows for a simple or predictable analysis as it involves three steps (zero, one and two) and

at each step, there is room for courts to trip, reaching

different results. Given that “different judges have

wildly different conceptions of whether a particular

statute is clear or ambiguous,” consistency and predictability is impossible even at step one of the analysis. Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, 2152 (2016). At the end

22

of the day, Chevron provides less predictability than

simply having courts interpret statutes in the first instance.

Lastly, overruling Chevron would also make judicial review much more straight forward, simplifying

litigation and reducing costs. “Review of agency statutory interpretation would be much simpler if the focus was on the meaning of the statute rather than on

whether and how Chevron applies to the particular

case.” Jack M. Beerman, Article: End the Failed Chevron Experiment Now: How Chevron Has Failed and

Why It Can and Should Be Overruled, 42 Conn. L.

Rev. 779, 787 (Feb. 2010).

Replacing Chevron with a framework that returns

the role of interpreting federal statutes to the judiciary would not only restore the separation of powers

and the province of the judiciary, but it would also

limit the myriad problems Chevron has fostered including inconsistency, unaccountability, and “reflexive deference.”

CONCLUSION

For these reasons and more, this Court should

overrule Chevron.

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Respectfully submitted,

July 21, 2023

STEWART L. WHITSON

Counsel of Record

DAVID CRAIG

SOFIA DEVITO

CAROLINE M. B. MILLER

RYAN YOUNG

THE FOUNDATION FOR

GOVERNMENT ACCOUNTABILITY

15275 Collier Blvd., Ste. 201

Naples, FL 34119

(239) 244-8808

stewart@theFGA.org

Counsel for Amicus Curiae