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

No. 22-451

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------LOPER BRIGHT ENTERPRISES, et al.,

Petitioners,

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY

AS SECRETARY OF COMMERCE, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------RICHARD P. HUTCHISON

LANDMARK LEGAL

FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL

FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

mike@landmarklegal.org

Attorneys for Amicus Curiae

July 21, 2023

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

ii

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

1

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

1

ARGUMENT ........................................................

3

A.

Despite the Court’s recent decisions, administrative agencies continue to promulgate regulations beyond their statutory

authority ....................................................

5

B.

Chevron violates separation of powers ......

8

C.

Statutory silence should not equate to an

“ambiguity” and thus trigger Chevron deference ......................................................... 13

D.

At a minimum, Chevron violates the Administrative Procedure Act ....................... 16

CONCLUSION..................................................... 17

ii

TABLE OF AUTHORITIES

Page

CASES:

Baldwin v. United States, 140 S. Ct. 690 (2020) .... 9, 10

Biden v. Nebraska, No. 22-506, 2023 U.S. LEXIS

2793 (2023) ................................................... 2-4, 6, 13

Buckley v. Valeo, 424 U.S. 1 (1976) .............................11

Cincinnati, W. & Z. R. Co. v. Commissioners of

Clinton County, 1 Ohio St. 77 (1852) ......................12

City of Arlington v. FCC, 569 U.S. 290 (2013) ...... 12, 13

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th

Cir. 2016) ........................................................... 11, 12

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

(1986) .......................................................................12

Loving v. United States, 517 U.S. 748 (1996) ..... 8, 9, 11

Marshall Field & Co. v. Clark, 143 U.S. 649

(1892) .......................................................................12

Michigan v. EPA, 576 U.S. 743 (2015) ......3, 10, 11, 14, 15

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................................11

NFIB v. OSHA, 142 S. Ct. 661 (2022) ..........................3

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

(2015) .........................................................................4

Util. Air Regul. Group v. EPA, 573 U.S. 302

(2014) .......................................................................14

West Virginia v. EPA, 142 S. Ct. 2587 (2022) ....... 2, 3, 7

iii

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTION, STATUTES AND REGULATIONS:

U.S. Const. art. I, § 1 .....................................................8

Administrative Procedure Act................................ 5, 16

Clean Air Act.................................................................6

Higher Education Relief Opportunity for Students Act ....................................................................2

Magnuson-Stevens Act .................................................4

5 U.S.C. § 706 .......................................................... 5, 16

87 Fed. Reg. 21,334 (Apr. 11, 2022) (to be codified

at 17 C.F.R. §§ 210, 229, 232, 239, 249) ....................8

88 Fed. Reg. 1,894 (Jan. 11, 2023) (to be codified

at 34 C.F.R. § 685) .....................................................5

88 Fed. Reg. 12,603 (Feb. 1, 2023) (to be codified

at 10 C.F.R. §§ 429, 430)............................................8

88 Fed. Reg. 19,583 (Apr. 3, 2023) (to be codified

at 43 C.F.R. §§ 1600, 6100)........................................7

88 Fed. Reg. 29,184 (May 5, 2023) (to be codified

at 40 C.F.R. §§ 85, 86, 600, 1036, 1037, 1066) ..........6

88 Fed. Reg. 29,362 (May 5, 2023)................................6

88 Fed. Reg. 33,240 (May 23, 2023) (to be codified at 40 C.F.R. § 60) ................................................7

iv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES:

Alliance for Automotive Innovation, Auto perspective on coming EPA emissions rules (April

6, 2023), https://www.autosinnovate.org/posts/

communications/Auto%20Perspective%20on%20

Coming%20EPA%20Emissions%20Rules.pdf ..........7

The Federalist No. 47 (James Madison) (C.

Rossiter ed., 1961).....................................................9

H.R. 2034, 117th Cong. (2021)......................................6

Jay Timmons, Biden’s regulatory regime needs

to stop its onslaught on manufacturers, Fox

News (June 23, 2023), https://www.foxnews.com/

video/6329992430112 ................................................4

John F. Duffy, Administrative Common Law in

Judicial Review, 77 Texas L. Rev. 113 (1998).........16

Katherine Knott, Income-Driven Repayment

Changes to Create ‘Student Loan Safety

Net,’ Inside Higher Ed (Jan. 11, 2023),

https://www.insidehighered.com/news/2023/

01/11/income-driven-repayment-overhaul-drawspraise-criticism..........................................................5

Michael Perchick, New student loan repayment

proposal aims to help borrowers succeed,

ABC 11 News Raleigh-Durham (Jan. 10, 2023),

https://abc11.com/student-loan-forgivenessrepayment-loans-biden-administration/12685573/..........5

v

TABLE OF AUTHORITIES – Continued

Page

Michael B. Rappaport, Chevron and Originalism:

Why Chevron deference cannot be grounded in

the original meaning of the Administrative

Procedure Act, 57 Wake Forest L. Rev. 1281

(2022) ................................................................. 16, 17

Nathan Alexander Sales & Jonathan H. Adler,

The Rest Is Silence: Chevron Deference, Agency

Jurisdiction, and Statutory Silences, 2009

U. Ill. L. Rev. 1497 (2009) .................................. 14-16

1

INTEREST OF AMICUS CURIAE1

Landmark Legal Foundation (Landmark) is a national public interest law firm committed to preserving

the principles of limited government, separation of

powers, federalism, advancing an originalist approach

to the Constitution, and defending individual rights

and responsibilities. Specializing in constitutional history and litigation, Landmark submits this brief in

support of Petitioners Loper Bright Enterprises, et al.

For reasons stated below, Landmark asks the Court to

overturn its decision in Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc. (Chevron).

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Executive Branch continues to dismiss the

Court’s authority. In a recent string of cases, the Court

has carefully restored the balance of powers by restraining administrative agencies in their efforts to

circumvent their legislative authority. Recognizing the

fundamental principle that Article I vests “[a]ll legislative Powers” in Congress, the Court has repeatedly

upheld challenges in instances where an agency has

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. Counsel for Amicus Curiae provided notice to counsel for parties of its

intent to file this brief on June 26, 2023. No person other than

Amicus Curiae, its members, or its counsel made a monetary contribution to its preparation or submission.

2

gone beyond its statutory authority. Yet agencies continue to promulgate and enforce rules unmoored from

their enabling statutes. The Court can end this by empowering all courts to exercise their inherent Article

III powers to independently determine whether an

agency has overstepped its bounds when an agency’s

statutory authority may be ambiguous.

Efforts to ensure agencies stay in their lane arose

in two recent cases, both decided in the last two terms.

First, in West Virginia v. EPA, where the Court invoked

the major questions doctrine to curtail efforts by the

EPA to promulgate an enormously costly “Clean Power

Plan” without clear congressional authorization. West

Virginia v. EPA, 142 S. Ct. 2587 (2022). Second, in

Biden v. Nebraska, the Court concluded that the President did not have authority under the Higher Education Relief Opportunities for Students Act of 2003

(HEROES Act) to forgive over $450 billion in student

loan debt. Biden v. Nebraska, No. 22-506, 2023 U.S.

LEXIS 2793 (2023).

Both cases addressed “a particular and recurring

problem: agencies asserting highly consequential

power beyond what Congress could reasonably be understood to have granted.” West Virginia v. EPA, 142

S. Ct. at 2609. And the Court, under its Article III authority and consistent with a line of decisions, stopped

this abuse. In short, the Constitution does not empower the Executive Branch to “ ‘exploit some gap, ambiguity, or doubtful expression in Congress’s statutes

to assume responsibilities far beyond’ those the people’s representatives actually conferred on them.” West

3

Virginia v. EPA, 142 S. Ct. 2587, 2620 (2022) (Gorsuch,

J., concurring, quoting NFIB v. OSHA, 142 S. Ct. 661,

669 (2022)). Nor does it permit cabinet level officials

like the Secretary of Education to “draft a new section

of [the law] from scratch by ‘waiving’ provisions root

and branch and then filling the empty space with radically new text.” Biden v. Nebraska, No. 22-506, slip op.

at 17, 2023 U.S. LEXIS 2793, *31 (2023).

Consistent with these decisions, the Court should

overturn Chevron and remove the obligation still

placed on lower courts to defer to an agency’s interpretation of ambiguous statutory language. A reversal of

Chevron will allow courts to exercise their constitutional authority to curb regulatory overreach when

agencies “formulate legally binding rules to fill in gaps

based on policy judgments made by the agency rather

than Congress.” Michigan v. EPA, 576 U.S. 743, 762

(2015) (Thomas, J., concurring).

---------------------------------♦---------------------------------

ARGUMENT

Agencies continue to promulgate regulations unmoored to any statutory authority despite recent decisions from the Court. These regulatory actions “bring

into bold relief the scope of the potentially unconstitutional delegations we have come to countenance in the

name of Chevron deference.” Id. And there is no end in

sight. By some estimates, agencies are behaving even

more aggressively than before the Court’s decision in

West Virginia v. EPA. Business leaders have put it

4

this way: “we’ve never seen this level [of regulatory actions] before. In any administration.” Jay Timmons

(CEO for the National Association of Manufacturers),

Biden’s regulatory regime needs to stop its onslaught

on manufacturers, Fox News (June 23, 2023),

https://www.foxnews.com/video/6329992430112.

Reversing Chevron will direct all lower courts to

exercise their Article III authority and uphold challenges when administrative agencies go beyond their

statutory authority. Courts will be permitted to “exercise [their] independent judgment in interpreting and

expounding upon the laws.” Perez v. Mortg. Bankers

Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring).

Here the Magnuson-Stevens Act (MSA) does not

provide any authorization for the National Marine

Fisheries Service (NMFS) to require operators of small

fishing vessels to pay the salaries of government mandated monitors. In short, NMFS lacks the “colorable

textual basis” present in other recent decisions. See

Biden v. Nebraska, No. 22-506, 2023 LEXIS 2793, *61

(Barrett, J., concurring) (2023). NMFS engaged in a

fundamental legislative act – using three independent

provisions of the MSA to justify its regulation. And the

lower court – bound by the mandates of Chevron – had

little option but to declare the action “reasonable.” Pet.

App. 16. Reversing Chevron would allow the lower

court to exercise its independent judgment to determine whether NMFS is operating within its regulatory

framework – particularly when the statute in question

is silent about the agency’s asserted authority.

5

Finally, the Court should conclude that Chevron

violates the Administrative Procedure Act (APA). The

APA’s text precludes deference by directing reviewing

courts to “decide all relevant questions of law. . . .” 5

U.S.C. § 706. Chevron deference removes this directive.

A. Despite the Court’s recent decisions,

administrative agencies continue to

promulgate regulations beyond their

statutory authority.

Administrative agencies are continuing to advance regulatory actions beyond their authority. A

number of recent actions suggests the Executive

Branch has not muted its regulatory agenda even in

light of recent decisions from the Court.

Pertaining to student loan debt forgiveness, the

Department of Education proposed a rule that will institute an Income-Driven Repayment (IDR) Program.

88 Fed. Reg. 1,894 (Jan. 11, 2023) (to be codified at 34

C.F.R. § 685). This IDR Program, intended to provide

debt relief for low-income borrowers, could cost between $300 and $400 billion. Katherine Knott, IncomeDriven Repayment Changes to Create ‘Student Loan

Safety Net,’ Inside Higher Ed (January 11, 2023),

https://www.insidehighered.com/news/2023/01/11/incomedriven-repayment-overhaul-draws-praise-criticism.

An administration official recognized the IDR Program as novel, describing it as “an attempt to create a

safety net for student loans for really the first time in

this country.” Michael Perchick, New student loan

6

repayment proposal aims to help borrowers succeed,

ABC 11 News Raleigh-Durham (Jan. 10, 2023),

https://abc11.com/student-loan-forgiveness-repaymentloans-biden-administration/12685573/ (emphasis added).

Legislative efforts to address student loan forgiveness

indexed to income have failed and it appears Congress

has decided not to act. In March 2021, Congressman

Lawson of Florida proposed the “Income-Driven Student Loan Forgiveness Act,” which promised to forgive

federal student loans for low-income debtors, in line

with the IDR Proposed Rule. But that bill failed to advance out of committee. H.R. 2034, 117th Cong. (2021).

Again, Congress must speak clearly before the Executive Branch can unilaterally alter large sections of the

American economy. Biden v. Nebraska, No. 22-506, slip

op. at 25, 2023 U.S. LEXIS 2793, *43 (2023).

The EPA has proposed a bevy of regulatory actions

designed to curb emissions of greenhouse gasses that

appear beyond its authority under the Clean Air Act.

Under one action, the EPA aims to phase out the manufacture of internal combustion engines. Multi-Pollutant Emissions Standards for Model Years 2027 and

Later Light-Duty and Medium-Duty Vehicles, 88 Fed.

Reg. 29,184 (May 5, 2023) (to be codified at 40 C.F.R.

§§ 85, 86, 600, 1036, 1037, 1066). According to the

EPA’s own projections, this regulation could incur up

to hundreds of billions in costs to industry. 88 Fed.

Reg. 29,362 (May 5, 2023).2 According to a trade group

representing auto manufacturers, complying with the

2

The EPA claims that increased industry costs will be offset

by benefits from transition to electric vehicles. 88 Fed. Reg. 29,362.

7

regulation “requires a massive, 100-year change to the

U.S. industrial base and the way Americans drive.” Alliance for Automotive Innovation, Auto perspective on

coming EPA emissions rules (April 6, 2023), https://www.

autosinnovate.org/posts/communications/Auto%20

Perspective%20on%20Coming%20EPA%20Emissions%20

Rules.pdf. On its face, this action appears to violate the

major questions doctrine.

Another EPA regulation, New Source Performance

Standards for Greenhouse Gas Emissions From New,

Modified, and Reconstructed Fossil Fuel-Fired Electric

Generating Units; Emission Guidelines for Greenhouse

Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable

Clean Energy Rule, 88 Fed. Reg. 33,240 (May 23, 2023)

(to be codified at 40 C.F.R. § 60) appears to be a new

rendition of the Clean Power Plan declared invalid in

West Virginia v. EPA.

Other examples of regulatory actions based on

questionable statutory authority include:

-

A Bureau of Land Management proposal to

streamline “conservation” (i.e., bans on economic productive public use) for more than

245 million acres of public land under its purview. Conservation and Landscape Health, 88

Fed. Reg. 19,583 (Apr. 3, 2023) (to be codified

at 43 C.F.R. §§ 1600, 6100).

-

A Securities and Exchange Commission proposal to require publicly traded companies to

measure and disclose their greenhouse gas

8

emissions. The Enhancement and Standardization of Climate-Related Disclosures for Investors, 87 Fed. Reg. 21,334 (proposed Apr. 11,

2022) (to be codified at 17 C.F.R. §§ 210, 229,

232, 239, 249).

-

A Department of Energy proposal to severely

restrict the sale of new gas stoves. Energy

Conservation Program: Energy Conservation

Standards for Consumer Conventional Cooking Products, 88 Fed. Reg. 12,603 (Feb. 28,

2023) (to be codified at 10 C.F.R. §§ 429, 430).

If these consequential actions are challenged,

courts should be permitted to exercise their Article III

authority to determine whether the agency is acting

within the bounds of its statutory authority. Courts

should not be obligated to reflexively defer to an

agency’s “reasonable” interpretation of ambiguous

statutory provisions.

B. Chevron violates separation of powers.

Article I, § 1 of the Constitution vests “all legislative Powers herein granted . . . in a Congress of the

United States.” This legislative power rests solely with

Congress under our constitutional system and this

concept is central to the separation of powers. “By allocating specific powers and responsibilities to a

branch fitted to the task, the Framers created a National Government that is both effective and accountable.” Loving v. United States, 517 U.S. 748, 757 (1996).

So, “Article I’s precise rules of representation, member

qualifications, bicameralism, and voting procedure

9

make Congress the branch most capable of responsive

and deliberative lawmaking.” Id. at 757-758. Thus,

“[i]ll suited to that task [of lawmaking] are the Presidency, designed for the prompt and faithful execution

of the laws and its own legitimate powers, and the Judiciary, a branch with tenure and authority independent of direct electoral control.” Id. at 758. This

assignment of powers “allows the citizen to know who

may be called to answer for making, or not making,

those delicate and necessary decisions essential to

governance.” Id.

Separation of powers thus prevents accumulation

of power and encroachments upon liberty. “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 Federalist No. 47 (James Madison) (C.

Rossiter ed., 1961). As a result, “There can be no liberty

where the legislative and executive powers are united

in the same person, or body of magistrates,” Id. (quoting Montesquieu, The Spirit of the Laws).

Application of Chevron limits courts in several

ways that violate traditional notions of separation of

powers while – at the same time – unduly empowering

administrative agencies. First, Chevron “compels

judges to abdicate the judicial power without constitutional sanction.” Baldwin v. United States, 140 S. Ct.

690, 691 (2020) (Thomas, J., dissenting from denial of

cert.). Second, it “gives federal agencies unconstitutional power” beyond the executive power conferred in

10

Article II, § 1. Id. Finally, it “undermines the ability of

the Judiciary to perform its checking function on the

other branches.” Id. at 692.

In this case, NMFS’s actions demand fidelity to the

constitutional principle that “[T]he judicial power as

originally understood, requires a court to exercise its

independent judgment in interpreting and expounding

upon the laws.” Michigan v. EPA, 576 U.S. at 761

(Thomas, J., concurring). The judiciary’s purposeful abdication of its duty to decide whether an agency has

exceeded its statutory authority “is not a harmless

transfer of power.” Baldwin, 140 S. Ct. at 691 (Thomas,

J., dissenting from denial of cert.) The structure of the

Constitution shields the judiciary “from both the ‘external threats’ of politics and the ‘internal threat’ of

human will by providing tenure. . . .” Id. The Framers

similarly, restrict Congress, which is accountable directly to the people through biennial elections and limited in its structure as a bicameral legislature. See id.

at 692. No such restrictions, however, are placed on

agency personnel or the President when promulgating

rules well beyond any authority delegated from Congress. NMFS can therefore promulgate a rule unmoored to any statutory text that unduly burdens

small fisheries with little to no political accountability.

When agencies are emboldened to craft new laws

by “reasonably” interpreting their administrative

rules, and courts abdicate their responsibility by deferring to an agency’s interpretation, what recourse exists

for citizens who seek fair and impartial adjudication?

Courts stand as a bulwark against tyranny. When

11

courts allow agencies’ actions to go “unchecked by independent courts exercising the job of declaring the

law’s meaning, executives throughout history had

sought to exploit ambiguous laws as license for their

own prerogative.” Gutierrez-Brizuela v. Lynch, 834 F.3d

1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring).

Reversing Chevron will remove the restrictions that

has resulted in courts “not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and

controversies that come before them.” Id. at 1153.

Deferring wholesale to an agency’s interpretation

of a statute “raises serious separation-of-powers questions.” Michigan v. EPA, 576 U.S. at 761 (Thomas, J.,

concurring). Deference “precludes judges from exercising [independent] judgment, forcing them to abandon

what they believe is ‘the best reading of an ambiguous

statute’ in favor of an agency’s construction.” Id. (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 983 (2005)).

Amicus Curiae acknowledges that, at times, a “hermetic sealing off of the three branches of Government

from one another would preclude the establishment of

a Nation capable of governing itself effectively.” Buckley v. Valeo, 424 U.S. 1, 121 (1976). Thus, “[t]o burden

Congress with all federal rulemaking would divert

that branch from more pressing issues and defeat the

Framers’ design of a workable National Government.”

Loving v. United States, 517 U.S. 748, 758 (1996).

12

But there are limits to an agency’s authority – particularly in cases such as this where there is an absence of any language authorizing the given rule. In

Marshall Field & Co. v. Clark, the Court states: “The

true distinction . . . is between the delegation of power

to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or

discretion as to its execution, to be exercised under and

in pursuance of the law.” The Court then distinguished

the actions, “[t]he first cannot be done; to the latter no

valid objection can be made.” Marshall Field & Co. v.

Clark, 143 U.S. 649, 693-694 (1892) (quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County,

1 Ohio St. 77, 88-89 (1852)). “The legislature cannot

delegate its power to make a law.” Marshall Field &

Co. v. Clark, 143 U.S. at 694.

Chevron empowered agencies to engage in legislative actions and courts have failed to fulfill “their duty

to interpret the law and declare invalid agency actions

inconsistent with those interpretations in the cases

and controversies that come before them.” GutierrezBrizuela v. Lynch, 834 F.3d at 1153 (Gorsuch, J., concurring). Chevron also violates the principle that “an

agency literally has no power to act . . . unless and until Congress confers power upon it.” Id. (citing La. Pub.

Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)).

In practice, “[a] court should not defer to an agency

until the court decides, on its own, that the agency is

entitled to deference. “ City of Arlington v. FCC, 569

U.S. 290, 312 (2013) (Roberts, C.J., dissenting). Thus,

“[a]n agency cannot exercise interpretive authority

13

until it has it; the question whether an agency enjoys

that authority must be decided by a court, without deference to the agency.” Id.

NMFS’s actions and the continued regulatory actions by the present administration suggest concerns

expressed by Chief Justice Roberts are prescient: “It

would be a bit much to describe the result ‘as the very

definition of tyranny,’ but the danger posed by the

growing power of the administrative state cannot be

dismissed.” Id. at 315.

Chevron abets the accumulation of all powers, legislative, executive, and judiciary into the hands of the

administrative state. In the words of the Chief Justice,

“[t]he accumulation of these powers in the same hands

is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.” Id. at 313. This accumulation poses

a danger to liberty and runs contrary to the principle

of separation of powers.

C. Statutory silence should not equate to

an “ambiguity” and thus trigger Chevron deference.

This case stands apart from recent decisions on

the scope of administrative authority in at least one

important respect – those cases had involved regulatory actions having at least some “colorable textual

basis” where the Court “could have ‘[p]ut on blinders’

and confined [itself ] to the four corners of the statute and . . . reached a different outcome.” Biden v.

14

Nebraska, No. 22-506, slip op. at 14, 2023 U.S. LEXIS

at *61-62 (2023) (Barrett, J., concurring). This case,

however, involves the absence of any statutory language empowering NMFS to fund its inspection regime. The lower court acknowledges this by noting that

the MSA does not explicitly resolve “the question of

whether the [NMFS] may require industry to bear the

costs of at-sea monitoring mandated by a fishery management plan.” Pet. App. 7. And NMFS cannot point to

any other instance where “an agency, without express

direction from Congress, requires an industry to fund

its inspection regime.” Pet. App. 29. Chevron deference

cannot extend so far as to permit an agency to unilaterally – and without any textual basis – promulgate a

regulation obligating fishermen to pay the salaries of

federal monitors.

There are recognized limits to Chevron deference

as “agencies must operate within the bounds of reasonable interpretation.” Util. Air Regul. Group v. EPA, 573

U.S. 302, 321 (2014). Additionally, while “Chevron allows agencies to choose among competing reasonable

interpretations of a statute; it does not license interpretative gerrymanders under which an agency keeps

parts of a statutory context it likes while throwing

away parts it does not.” Michigan v. EPA, 576 U.S. at

754. Accepting statutory silence as an ambiguity, however, goes beyond bounds of reasonableness.

Congressional failure to expressly deny a power

to an agency is not an ambiguity. In short, “agencies

have no intrinsic authority and wield only the powers that the legislature delegates them.” Nathan

15

Alexander Sales & Jonathan H. Adler, The Rest Is

Silence: Chevron Deference, Agency Jurisdiction, and

Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1520.

The NMFS’s actions “bring into bold relief the

scope of the potentially unconstitutional delegations

we have come to countenance in the name of Chevron

deference.” Michigan v. EPA, 576 U.S. at 762 (Thomas,

J., concurring). The Court “should be alarmed that

[NMFS] felt sufficiently emboldened” by past decisions

to promulgate a rule absent both express authority

and a general delegation of power. Id. at 763. What is

to prevent other agencies from substituting their policy judgments for that of Congress? Why should an

agency such as the NMFS operate within its statutory

bounds when courts uphold such actions? Agencies

have become so emboldened they venture beyond their

statutory mandates – even in cases of statutory silence

and even without any general delegation of authority.

Silence should not be interpreted as ambiguity;

such a principle allows agencies to legislate without

an express delegation of authority from Congress. It

allows courts to defer to agencies rather than using

their Article III authority to interpret the law. Indeed,

“Were 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.” Alexander & Adler, The Rest Is

Silence: Chevron Deference, Agency Jurisdiction, and

Statutory Silences, 2009 U. Ill. L. Rev. at 1519. Thus, “a

statute delegates the authority it delegates, and the

16

rest is silence. Failure to disclaim agency authority to

regulate is not, in itself, an ambiguity about whether

an agency does or should have regulatory authority.”

Id. at 1532.

D. At a minimum, Chevron violates the Administrative Procedure Act.

Chevron deference also violates the Administrative Procedure Act (APA). The text of APA provides

evidence that it does not confer deference on an agency.

It states, “to the extent necessary to decision and when

presented, 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.” 5 U.S.C. § 706 (emphasis added). At the time of the APA’s enactment, the

meaning of a statute was considered a question of law.

Baldwin, 140 S. Ct. at 692 (Thomas, J., dissenting from

denial of certiorari). Section 706 also “places the court’s

duty to interpret statutes on an equal footing with its

duty to interpret the Constitution, and courts never defer to agencies in reading the Constitution.” Id. (quoting John F. Duffy, Administrative Common Law in

Judicial Review, 77 Texas L. Rev. 113, 194 (1998). This

text also precludes deference as the authority to decide “all relevant questions of law” is restricted to the

courts. Michael B. Rappaport, Chevron and Originalism: Why Chevron deference cannot be grounded in the

original meaning of the Administrative Procedure Act,

57 Wake Forest L. Rev. 1281, 1289 (2022). Finally, other

portions of the APA provide for deference in other

17

contexts – therefore reinforcing the argument that

Congress never intended to delegate deference to

agencies when deciding “relevant questions of law.” Id.

at 1290.

---------------------------------♦---------------------------------

CONCLUSION

For these reasons, the Court should reverse the

decision of the lower court and reverse its findings in

Chevron.

Respectfully submitted,

RICHARD P. HUTCHISON

LANDMARK LEGAL

FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL

FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

mike@landmarklegal.org

Attorneys for Amicus Curiae