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 THE NATIONAL RIGHT TO WORK

LEGAL DEFENSE FOUNDATION, INC.,

AS AMICUS CURIAE SUPPORTING

PETITIONERS

_______

W. JAMES YOUNG

Counsel of Record

c/o NATIONAL RIGHT TO WORK LEGAL

DEFENSE FOUNDATION, INC.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

wjy@nrtw.org

Counsel for Amicus Curiae

July 2023

-iTABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Chevron Violates Separation of Powers and

Due Process Guarantees Because It Grants

Judicial Power to the Executive Branch . . . . . . 3

II. The NLRB Demonstrates Why There Is No

Practical Basis for Chevron Deference . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

-iiTABLE OF AUTHORITIES

Cases

Page

Biden v. Nebraska,

600 U.S. ___, 143 S.Ct. 2355 (2023) . . . . . . . . . . 7

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

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . 1-13

Communications Workers v. Beck,

487 U.S. 735 (1988) . . . . . . . . . . . . . . . . . . . 10, 11

Ellis v. Railway Clerks,

466 U.S. 435 (1984) . . . . . . . . . . . . . . . . . . . . . . 11

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

575 U.S. 43 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 4

Egan v. Delaware River Port Auth.,

851 F.3d 263 (3d Cir. 2017) . . . . . . . . . . . . . . . . 7

Groff v. DeJoy,

600 U.S. ___, 143 S. Ct. 2279 (2023) . . . . . . . . . 7

Gutierrez-Brizuela v. Lynch,

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

Harris v. Quinn,

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

Henriquez-Rivas v. Holder,

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

-iiiTABLE OF AUTHORITIES-CONT.

Page

IAM v. NLRB,

133 F.3d 1012 (7th Cir. 1998) . . . . . . . . . . . . . . 1

Janus v. AFSCME, Council 31,

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

Jean Country,

291 N.L.R.B. 11 (1988) . . . . . . . . . . . . . . . . . . . . 9

Kennedy v. Butler Fin. Sols., LLC,

2009 WL 290471 (N.D. Ill. Feb. 4, 2009) . . . . . . 5

Knox v. SEIU, Local1000,

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

Lechmere, Inc. v. NLRB,

502 U.S. 527 (1992) . . . . . . . . . . . . . . . . . . . . . . . 9

Maislin Industries, U.S., Inc. v. Primary Steel, Inc.,

497 U.S. 116, 131 (1990) . . . . . . . . . . . . . . . . . . 10

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . 3, 13

NLRB v. Food & Commercial Workers,

484 U.S. 112 (1987) . . . . . . . . . . . . . . . . . . . . . . . 9

NLRB v. Noel Canning,

573 U.S. 513 (2014) . . . . . . . . . . . . . . . . . . . . . . . 6

-ivTABLE OF AUTHORITIES-CONT.

Page

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

Internet Servs.,

545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . . . 2

Padilla-Caldera v. Holder,

637 F.3d 1140 (10th Cir. 2011) . . . . . . . . . . . . . 5

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) . . . . . . . . . . . . . . . . . . . . . . 3, 5

West Virginia v. Envtl. Protec. Agency,

142 S.Ct. 2587 (2022) . . . . . . . . . . . . . . . . . . . . . 7

Federal Constitutions, Statutes, & Rules

U.S. Constitution

Article I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . 1

National Labor Relations Act,

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

29 U.S.C. § 157 . . . . . . . . . . . . . . . . . . . . . . . . . 10

-vTABLE OF AUTHORITIES-CONT.

Page

Other Authorities

Aditya Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 128 Yale L. J. 908

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cass R. Sunstein, Law and Administration After

Chevron,

90 Colum. L. Rev. 2071 (1990) . . . . . . . . . . . . . . 3

Douglas H. Ginsburg & Steven Menashi, Our

Illiberal Administrative Law,

10 N.Y.U. J.L & Liberty 475 (2016) . . . . . . . . . . 8

Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) . . . . . . 4, 5, 6

Philip Hamburger,

Law and Judicial Duty (2008) . . . . . . . . . . . . . . 3

Rebecca L. Brown, Separated Powers and Ordered

Liberty,

139 U. Pa. L. Rev. 1513 (1991) . . . . . . . . . . . . . . 6

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

No. 78 (A. Hamilton) . . . . . . . . . . . . . . . . 4, 12, 13

-1INTEREST OF THE AMICUS CURIAE1

Since 1968, the National Right to Work Legal

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

litigation advocate for employee free choice concerning

unions. Foundation staff attorneys have represented

workers in almost all of the compulsory union fee cases

considered by this Court, including Janus v. AFSCME

Council 31, 138 S. Ct. 2448 (2018), Harris v. Quinn,

134 S. Ct. 2618 (2014), and Knox v. SEIU, Local 1000,

567 U.S. 298 (2012).

Foundation staff attorneys frequently represent

private-sector employees whose right to refrain from

associating with a union depends upon the National

Labor Relations Board’s (“NLRB” or “Board”) proper

implementation of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 141 et seq. In cases involving the

rights of employees subject to the NLRA, United States

Circuit Courts of Appeals often apply the deference

mandated by Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984), in reviewing NLRB

decisions on appeal.2 For that reason, the fate of the

1

Under Supreme Court Rule 37.6, no counsel for any

party authored this brief in whole or in part, and no person or

entity other than the amicus curiae made a monetary contribution

to its preparation or submission.

2

See, e.g., UFCW, Local 1036 v. NLRB, 307 F.3d 760, 766

(9th Cir. 2002) (en banc) (“Courts are required to defer to the

NLRB on statutory interpretation under Chevron”); IAM v. NLRB,

133 F.3d 1012, 1015 (7th Cir. 1998) (finding that Board decisions

concerning compulsory union fee requirements are “subject to the

very light review authorized by Chevron”).

-2Chevron doctrine is important to the Foundation’s

mission.

SUMMARY OF ARGUMENT

Chevron should be overruled because by requiring

courts to defer to agencies on legal interpretations,

Chevron requires the judiciary to shirk its duty to say

what the law is. “Chevron teaches that a court’s

opinion as to the best reading of an ambiguous statute

an agency is charged with administering is not

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

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

directive inevitably results in requiring Article III to

uphold agency interpretations of statutes that those

courts believe to be wrong. This approach violates the

separation of powers by significantly shifting judicial

power from Article III courts to the Executive branch.

The approach also violates due process guarantees by

giving the Executive branch discretion to control the

meaning of laws that branch uses to regulate or

prosecute private parties.

These infirmities are particularly acute in the

context of Federal labor laws generally, and especially

as to individual employee rights against labor unions

imposing forced unionism requirements. They

therefore constitute particularly persuasive evidence

that Chevron’s problems far outweigh any benefits, and

that its formulation must be overruled.

-3ARGUMENT

I.

Chevron Violates Separation of Powers and

Due Process Guarantees Because It Grants

Judicial Power to the Executive Branch.

1. If there is a “fixed star” in the constellation of

this Court’s jurisprudence regarding “[t]he judicial

Power,” Const., Art. III, § 1, it lies in the familiar

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

emphatically the province and duty of the judicial

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

Madison, 5 U.S. (1 Cranch) 137, 177 (1803). This duty

requires a court to “exercise its independent judgment

in interpreting and expounding upon the laws.” Perez

v. Mortg. Bankers Ass’n, 575 U.S. 92, 118-19 (2015),

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

Law and Judicial Duty 316-26 (2008).

Chevron does violence to this principle by requiring

courts to shirk their duty under Article III and defer to

an executive agency’s judgment on questions of law. It

is unsurprising, then, that scholars have described

Chevron deference as “counter-Marbury,” Cass R.

Sunstein, Law and Administration After Chevron, 90

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

courts do not “say what the law is” if that law is

ambiguous. Courts instead surrender to executive

agencies their constitutional authority to construe the

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

1081, 1087 (9th Cir. 2013) (“If the [agency’s]

construction is reasonable, we must accept that

construction under Chevron, even if we believe the

agency’s reading is not the best statutory

interpretation”).

-4This violates separation of powers because the

Constitution, Art. III, § 1, vests “[t]he judicial Power of

the United States” in the Federal courts alone. The

Framers believed that “the general liberty of the people

can never be endangered ... so long as the judiciary

remains truly distinct from both the legislative and

executive.” The Federalist No. 78, at 421 (Michael L.

Chadwick ed., 1987) (A. Hamilton). This is a principle

long recognized and otherwise jealously guarded by

this Court. See, e.g., Bowsher v. Synar, 478 U.S. 714,

730 (1986); Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 635 (1952) (Jackson, J., concurring)

(noting that the Constitution “diffuses power the better

to secure liberty”). Thus, neither Congress nor the

courts have constitutional authority to transfer the

indefeasible “judicial Power” to agencies. See Aditya

Bamzai, The Origins of Judicial Deference to Executive

Interpretation, 128 Yale L.J. 908 (2017). The

Constitution simply does not contemplate such

“undifferentiated governmental power.” Dep’t of

Transp. v. Ass’n of American Railroads, 575 U.S. 43, 67

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

quotation marks omitted).

This abandonment of judicial duty has real effects.

Inter alia, it undermines our legal system’s political

legitimacy.3 Frequently, Chevron forces judges to

3

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

Rev. 1187, 1236 (2016) (“[I]ndependent judgment of unbiased

judges is the basis of the government’s political legitimacy. In all

cases, and especially those concerning the power of government or

the rights of the people, it is essential that the people have

confidence that the judges are not biased toward government, but

are exercising independent judgment”) (footnote omitted).

-5uphold interpretations they believe to be wrong.4 And

sometimes courts are required to uphold interpretations they have previously rejected.5

2. Chevron also violates basic due process

principles. As then-Judge Gorsuch observed, “[t]ransferring the job of saying what the law is from the

judiciary to the executive unsurprisingly invites the

very sort of due process (fair notice) and equal

protection concerns the [F]ramers knew would arise if

the political branches intruded on judicial functions.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th

Cir. 2016) (Gorsuch, J., concurring); see also

Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. at

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

give up their role as judges and ... violate the due

process of law”).

The Framers constructed the Constitution to

safeguard the people’s liberty by separating

governmental powers. This design emerged from

“centuries of political thought and experiences,” Perez,

575 U.S. at 116 (Thomas, J., concurring) (citation

omitted), that taught the Framers that delegating to

separate federal branches’ limited, specified, and

distinct powers would protect the republic and its

4

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

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

the Court as reasonable, though perhaps not the best

interpretation of the law”).

5

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

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

obligated to discard its earlier statutory interpretation and defer

to the agency’s).

-6citizens better than any enumeration of rights ever

could. “[T]he Constitution’s core, governmentstructuring provisions are no less critical to preserving

liberty than are the later adopted provisions of the Bill

of Rights.” NLRB v. Noel Canning, 573 U.S. 513, 57071 (2014) (Scalia, J., concurring). “Indeed, so convinced

were the Framers that liberty of the person inheres in

structure that at first they did not consider a Bill of

Rights necessary.” Id. (cleaned up). The abandonment

of separation of powers, the Framers knew, would lead

directly to the “loss of due process and individual

rights.” Rebecca L. Brown, Separated Powers and

Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1538 (1991).

So it has been in the aftermath of Chevron, which

gives the Executive branch an unfair advantage

against persons it targets for regulation or prosecution.

Under Chevron, courts must uphold the executive

branch’s interpretation of a law so long as it is

“reasonable,” which often is defined generously. Often

the executive agency that receives this deference is a

litigant in a case against a private party. This

arrangement gives the executive agencies a marked

advantage over private parties. See Hamburger,

Chevron Bias, 84 Geo. Wash. L. Rev. at 1250 (“[J]udges

defer to administrative interpretation, thus often

engaging in systematic bias for the government and

against other parties”).

At bottom, Chevron is incompatible with the

Constitution’s fundamental structural safeguards.

Chevron is “contrary to the roles assigned to the

separate branches of government” and “require[s]

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

best judgment and instead bow to the nation’s most

-7powerful litigant, the government, for no reason other

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

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

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

This Court has twice vindicated the separation of

powers in recent Terms, punctuating the last day of the

last two Terms with ringing endorsements of the

separation of powers. Biden v. Nebraska, 600 U.S. ___,

143 S.Ct. 2355, 2373 (2023) (striking down the

President’s encroachment upon authority of Congress

against the former’s effort to expend $400 billion for

student loan “forgiveness” without congressional

appropriation; “this is a case about one branch of

government arrogating to itself power belonging to

another”);6 see also West Virginia v. Envtl. Protec.

Agency, 142 S.Ct. 2587, 2609 (2022) (striking down

agency grasp for power unauthorized by Congress

struck down on “both separation of powers principles

and a practical understanding of legislative intent”;

refusing to “‘read into ambiguous statutory text’ the

delegation claimed to be lurking there”).

So it should be here. Chevron should be overruled.

6

Just a day earlier, Justice Sotomayor (joined by Justice

Jackson) praised the Court for declining to overrule and replace

a prior statutory interpretation because it promoted the

separation of powers, as Congress had declined to intervene to

correct or modify the Court’s prior statutory interpretation. Groff

v. DeJoy, 600 U.S. ___, 143 S.Ct. 2279, 2297 (2023) (Sotomayor, J.,

concurring).

-8II. The NLRB Demonstrates Why There Is No

Practical Basis for Chevron Deference.

1. One of the primary rationales for Chevron

deference is the supposition that agency “experts” are

better equipped than courts to determine the meaning

of laws. See Chevron, 467 U.S. at 865. The NLRB

illustrates why that supposition is untenable. The

rulemaking and adjudications in which the NLRB

engages are not based on any sort of technical

“expertise”—the meanings of labor statute provisions

are not scientific questions—but rather are based on

the agency’s political makeup. Frequently, its

adjudications are not applications of scientific

“expertise.” They are exercises in political will.

As two federal judges have highlighted, in many

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

fraudulent,” and often is “a euphemism for policy

judgments.” Douglas H. Ginsburg & Steven Menashi,

Our Illiberal Administrative Law, 10 N.Y.U. J.L. &

Liberty 475, 482 (2016) (footnote omitted).

The NLRB is a notorious example, in which “the

partisan majority ... routinely displaces the previous

majority’s psychological assertions about what

employer tactics do or do not coerce workers when they

are deciding whether to vote for union representation.”

Yet that claim to expertise is often “a euphemism for

policy judgments.” Id. at 482-83. Although some agency

staff might have varying levels of technical expertise,

agency heads are political actors. Indeed, “the agency’s

ultimate decisions are made by the experts’ political

masters, who have sufficient discretion that they can

make decisions based upon their own policy

-9preferences, fearing neither that the expert staff will

not support them nor that a court will undo their

handiwork.” Id.

That the NLRB and other agencies often adopt

statutory interpretations for political and ideological

reasons, not because a dispassionate reading of the law

led to that interpretation, is reason alone for courts to

decline to defer to such politicized judgments. The

courts should not stamp these agency decisions as “the

law” simply becuse the political actors at the agency

made the decision. There is no reason for courts to

assume, as Chevron commands, that the political

appointees’ interpretations of an ambiguous statute is

the objectively best interpretation of that statute, as

opposed to merely the interpretation the agency’s

political heads believe will best satisfy their policy

objectives.

This is demonstrated by the Board’s decisions and

arguments reviewed by this Court. For example, just

eight years after Chevron, in Lechmere, Inc. v. NLRB,

this Court noted that the Board was “entitled to

judicial deference when it interprets an ambiguous

provision of a statute that it administers.” 502 U.S.

527, 536 (1992), citing NLRB v. Food & Commercial

Workers, 484 U.S. 112, 123 (1987), and Chevron, supra.

There, the Board argued under its decision in Jean

Country, 291 N.L.R.B. 11 (1988), that an employer

committed an unfair labor practice when it barred

nonemployee union organizers from its property, and

that its construction of the NLRA was entitled to

deference by this Court. 502 U.S. at 536.

-10This Court rejected the argument that it should

defer to the Board’s effort to expand its construction of

§ 7 rights, 29 U.S.C. § 157 (“to self-organization, to

form, join, or assist labor organizations”), to

nonemployee union organizers, noting that “By its

plain terms, thus, the NLRA confers rights only on

employees, not on unions or their nonemployee

organizers ... to whom § 7 applies only derivatively.”

502 U.S. at 532-33. Moreover, the Board’s argument

leapfrogged over consideration of whether its decision

was “consistent with our past interpretation of § 7,”

and the requirement that “Once we have determined a

statute’s clear meaning, we adhere to that

determination under the doctrine of stare decisis, and

we judge an agency’s later interpretation of the statute

against our prior determination of the statute’s

meaning.” Id. at 536-37, citing Maislin Industries,

U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131

(1990).

In short, while arguably a candidate for Chevron

deference, the Court rejected application of that

method of analysis in Lechmere.7

Likewise, just four years after Chevron, this Court

considered Communications Workers v. Beck, 487 U.S.

735 (1988), holding that Ҥ 8(a)(3), like its statutory

equivalent, § 2, Eleventh of the RLA, authorizes the

exaction of only those fees and dues necessary to

‘performing the duties of an exclusive representative of

the employees in dealing with the employer on

7

Justice White (joined by Justice Blackmun only on this

reason) found that Chevron deference justified affirming the

Board’s determination.

-11labor-management issues.’” Id., at 762-63, citing Ellis

v. Railway Clerks, 466 U.S. 435, 448 (1984).

Beck is notable because the nonunion employees

prevailed in that case notwithstanding the amicus

participation of the Solicitor General, joined on his

brief by the General Counsel and numerous Board

officials, 1987 WL 881074 (Appellate Brief), opposing

the nonmembers’ statutory arguments. Id. at 21-28.

Citing Chevron, the dissenters would have deferred to

the Board’s statutory construction. Beck, 487 U.S. at

769 n.6 (Blackmun, J., concurring and dissenting in

part) (joined by Justices O’Connor and Scalia), citing

Chevron, 467 U.S. at 842-43 n.9 (one among three

reasons). Nevertheless, this construction was rejected

by the majority. Id. at 762-63.

That the NLRB and other agencies often adopt

statutory interpretations for political and ideological

reasons—and not because a dispassionate reading of

the law and congressional intent led to that

interpretation—is reason alone for courts not to defer

to such politicized judgments. The courts should not

stamp agency decisions as “the law” simply because the

political actors at the agency made the decision. There

is no reason for courts to assume, as Chevron

commands, that the political appointees’ interpretation

of an ambiguous (or, as here, silent) statute should

control its interpretation, as opposed to merely

constituting the interpretation the agencies’ political

heads believe will best satisfy their policy objectives,

one among many options to be independently

adjudicated according to the normal rules governing

judicial review and statutory interpretation.

-12Hamilton stressed the importance of the judiciary

in maintaining the law. He explained “that inflexible

and uniform adherence to the rights of the

Constitution, and of individuals, [i]s indispensable in

the courts of justice,” i.e., “a reliance that nothing

would be consulted but the constitution and the laws.”

See The Federalist No. 78 (A. Hamilton) at 425.

Deference to administrative agencies like the NLRB

via Chevron violates these principles and prevents

courts from serving as “an intermediate body” that

interprets the law as their “proper and peculiar

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

this to the benefit of the few.

But Chevron deference allows agencies throughout

the federal government—like the NLRB— to change

abruptly legal and policy positions on major issues

affecting the regulated public’s liberty. Executive

agencies have done so not by using the statute

Congress passed, or by applying a new statute passed

to address experience or new conditions, and tested in

the crucible of the legislative process, but by using

supposedly or contrivedly ambiguous statutory

language to instill and effectuate their political

preferences, enacted without going through the

inconvenience of the democratic processes prescribed

by the Constitution. This undermines a fundamental

underpinning of the rule of law and the Constitution’s

separation of powers, which requires that only

Congress, acting through Article I, change the law. It

must end.

*****

-13Amicus ends where we began, with the Framers’

admonition that “the general liberty of the people can

never be endangered ... so long as the judiciary

remains truly distinct from both the legislature and

Executive.” The Federalist No. 78 at 421 (A. Hamilton).

But when the courts defer to Executive agencies

interpreting the laws they are to administer under

Chevron, the opposite is true, and the path to tyranny

becomes significantly circumscribed. Under Chevron,

the courts have evaded, surrendered, or abdicated their

duty “to say what the law is.” Marbury, 5 U.S. at 177.

That is not a bug in Chevron’s design; it is the point.

The decision of the court below therefore cannot stand,

and Chevron itself should be overruled.

CONCLUSION

For the reasons stated above, the Court should

reverse the decision below.

Respectfully submitted,

W. JAMES YOUNG

Counsel of Record

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

E-MAIL — wjy@nrtw.org

Counsel for Amicus Curiae

July 2023