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 NATIONAL TAXPAYERS UNION

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________________

JOSEPH D. HENCHMAN

Counsel of Record

TYLER MARTINEZ

NATIONAL TAXPAYERS

UNION FOUNDATION

122 C Street N.W., #700

Washington, D.C. 20001

jbh@ntu.org

(703) 683-5700

July 24, 2023

i

TABLE OF CONTENTS

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

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

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

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

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

I. CHEVRON’S CHIEF ERROR: STATUTORY

SILENCE IS NOT AMBIGUITY. ........................... 5

A. Chevron Deference Ought Not Apply to

Statutory Silence. ................................................ 5

B. Taxpayers Suffer from Regulations Based

Upon Statutory Silence. ...................................... 8

C. Courts Know How to Demand Clarity

Before Expanding Regulatory Reach. ............... 13

II.

CONGRESS KNOWS HOW TO GRANT

THE AUTHORITY TO COLLECT FEES. ........... 17

CONCLUSION.......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

Am. Bus Ass’n v. Slater,

231 F.3d 1 (D.C. Cir. 2000) ..................................... 7

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018) ................................... 7

Barnhart v. Walton,

535 U.S 212 (2002) .................................................. 6

Boim v. Holy Land Found. for Relief & Dev.,

549 F.3d 685 (7th Cir. 2008) ................................. 15

Burns v. United States,

501 U.S. 129 (1991) ............................................... 12

Central Bank of Denver, N.A. v. First Interstate

Bank, N.A.,

511 U.S. 164 (1994) ............................... 3, 13, 14, 15

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

467 U.S. 837 (1984) ................................... 2, 5, 6, 11

Chiarella v. United States,

445 U.S. 222 (1980) .............................................. 14

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013) ............................................... 11

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ............................................... 12

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ............................................... 10

Entergy Corp v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ............................................. 6, 7

iii

Ethyl Corp. v. EPA,

51 F.3d 1053 (D.C. Cir. 1995) ................................. 7

Fed. Election Comm’n v. Swallow,

304 F. Supp. 3d 1113 (D. Utah 2018) ....... 13, 16, 17

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ................................................. 7

Lantz v. C.I.R.,

132 T.C. 131 (2009) ............................................... 11

Lantz v. C.I.R.,

607 F.3d 479 (7th Cir. 2010) ........................... 10, 11

Loving v. IRS,

742 F.3d 1013 (D.C. Cir. 2014) ............................... 9

Montrois v. United States,

916 F.3d 1056 (D.C. Cir. 2019) ......................... 9, 10

Nat’l Cable Television Ass’n., Inc. v. United States,

415 U.S. 336 (1974) ............................................... 12

Office of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990) ......................................... 18, 19

State of Ill., Dep’t of Pub. Aid v. Schweiker,

707 F.2d 273 (7th Cir. 1983) ................................. 12

Stoneridge Inv. Partners, LLC v. Scientific-Atlanta,

Inc.,

552 U.S. 148 (2008) ............................................... 15

Terrorist Attacks on September 11, 2001 v. Al Rajhi

Bank,

714 F.3d 118 (2d Cir. 2013) ................................... 15

Whitman v. Am. Trucking Associations,

531 U.S. 457 (2001) ................................................. 7

iv

Zuber v. Allen,

396 U.S. 168 (1969) ............................................... 12

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 1........................................ 17

U.S. Const. art. I, § 9, cl. 7........................................ 18

Statutes

12 U.S.C. § 1815(d)(1) ............................................... 18

15 U.S.C. § 45b(d)(2)(A) .............................................. 6

15 U.S.C. § 78ee(a) .................................................... 17

15 U.S.C. § 78t(e) ...................................................... 15

16 U.S.C. § 1821 ........................................................ 19

16 U.S.C. § 1821(h)(4) ................................................. 8

16 U.S.C. § 1824 ........................................................ 19

16 U.S.C. § 1824(b)(10) ............................................... 8

16 U.S.C. § 551 ............................................................ 5

16 U.S.C. § 824a-3(a) .................................................. 6

26 U.S.C. § 6015(b)(1)(E) .......................................... 10

26 U.S.C. § 6015(c) .................................................... 10

26 U.S.C. § 6015(c)(3)(B) .......................................... 10

26 U.S.C. § 6015(f) .................................................... 10

31 U.S.C. § 3302(b) ..................................................... 9

31 U.S.C. § 9701 .......................................................... 9

35 U.S.C. § 41 ............................................................ 18

42 U.S.C. § 256b(d)(3)(A) ............................................ 6

v

Rules

26 C.F.R. § 1.6015–5(b)(1) ........................................ 10

Other Authorities

Chandra Wallace, Don’t Read Into Silence in

Corporate AMT Notice, IRS Says, TaxNotes (June

9, 2023) https://www.taxnotes.com/tax-notes-todayfederal/corporate-alternative-minimum-tax/dontread-silence-corporate-amt-notices-irssays/2023/06/09/7gvl5............................................ 11

Fed. Election Comm’n, Notice 2023-09, Contributions

in the Name of Another, 88 Fed. Reg. 33816 (May

25, 2023) ................................................................ 16

Joseph Story, Commentaries on the Constitution of

the United States: With A Preliminary Review of

the Constitutional History of the Colonies and

State Before the Adoption of the Constitution

§ 1348 (4th ed. 1873) ............................................ 18

Kent Barnett and Christopher J. Walker, Chevron in

the Circuit Courts, 116 MICH L. REV. 1 (2017) ....... 4

The Federalist No. 47 (Madison) (George W. Carey

and James McClellan, eds. 2001) ......................... 17

The Federalist No. 78. (Hamilton) (George W. Carey

and James McClellan, eds. 2001) ......................... 17

1

INTEREST OF AMICUS CURIAE1

Founded in 1973, the National Taxpayers Union

Foundation (NTUF) is a non-partisan research and

educational organization dedicated to showing

Americans how taxes, government spending, and

regulations affect everyday life. NTUF advances

principles of limited government, simple taxation, and

transparency on both the state and federal levels.

NTUF’s Taxpayer Defense Center advocates for

taxpayers in the courts, producing scholarly analyses

and engaging in direct litigation and amicus curiae

briefs upholding taxpayers’ rights, challenging

administrative overreach by tax authorities, and

guarding against unconstitutional burdens on

interstate commerce.

Pursuant to Supreme Court Rule 37, counsel for Amicus

represents that none of the parties or their counsel, nor any other

person or entity other than Amicus or its counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief.

1

2

SUMMARY OF THE ARGUMENT

This case’s Question Presented is bold, asking if

this Court should overturn the central holding of

Chevron U.S.A. v. National Resources Defense

Council, Inc., 467 U.S. 837 (1984), or, in the

alternative, “clarify that statutory silence concerning

controversial powers expressly but narrowly granted

elsewhere in the statute does not constitute an

ambiguity requiring deference to the agency.” Pet. Br.

at i. We write to highlight the error of deferring to

agency action based on statutory silence.

The most egregious abuses of “Chevron deference”

come when the agency is legislating out of whole cloth,

based on the “silence” of the relevant statute.

Chevron’s deference rests on the theory that an agency

fills gaps left by Congress. Explicit gaps are of little

worry, for Congress specifically asked the agency to

regulate where Congress lacked expertise. Implicit

gaps—statutory silence—are much more worrisome,

because deference to agencies in this context allows

them to substantially legislate.

Taxpayers know all too well the pain of

bureaucratic fiat taking the place of proper legislation.

We detail recent examples. The IRS has a long history

of regulating based on “silence” in the Internal

Revenue Code, despite the statutory frameworks

famous level of detail and Congressional attention.

When the tax laws are silent, but the IRS wishes to

regulate anyway, then the taxpayers suffer—all

because of Chevron’s allowance of “silence” as a basis

for agency action and judicial deference.

3

There is a small line of cases where the judiciary

has not deferred to agency rulemaking out of statutory

silence. This Court’s decision in Central Bank of

Denver, N.A. v. First Interstate Bank, N.A., 511 U.S.

164 (1994), refused to infer secondary civil liability

when the relevant securities statute was silent. More

importantly, both Congress and the agencies have

reacted to the decisions in the Central Bank of Denver

line. Congress reacted by enacting a specific statute

regulating secondary civil liability. In another

instance, when a district court applied Central Bank

of Denver, the agency was able to repeal its offending

regulation. In this way, the Court can know that if it

rules for Loper Bright’s fishermen, Congress and the

administrative state can apply the new rules going

forward.

Indeed, as a practical matter for the dispute in

this case, Congress knows how to allow an agency to

collect fees to help fund itself. Major agencies with this

power to collect fees, like the Securities and Exchange

Commission, all have specific language in their

statutes allowing for the collection of fees. The

National Marine Fisheries Service has no such

authority to collect fees from domestic operations like

Loper Bright Enterprises.

This Court should, at the very least, clarify that

statutory silence cannot be used this way. Agencies

need clear mandates when they can regulate and

collect fees. That has not happened here, and so the

regulation is ultra vires. The decision below should be

reversed.

4

ARGUMENT

Despite jurisdictional differences, courts invoke

Chevron frequently, and when they do, “agencies [win]

significantly more.” Kent Barnett and Christopher J.

Walker, Chevron in the Circuit Courts, 116 MICH L.

REV. 1, 6 (2017). (finding the agency-win rate with

Chevron was 77.4% and in cases without invoking

Chevron, 53.6%). If the reviewing court gets to

Chevron Step Two,2 the agency almost always wins.

Id. (finding 93.8% win rate at Step Two). That is

because lower courts mechanically apply Chevron,

deeming “reasonable” even expansive regulations

promulgated by unelected agency officials.

But Chevron Step One, often glossed over by

courts, is essential. See id. (only 30.0% of cases

resolved at Step One). That is because much of the

judicial analysis is not merely interpreting ambiguous

terms or harmonizing conflicting provisions. Instead,

Chevron decisions often bless agency legislation—

based on the “silence” of the statute. The result is an

administrative state with vast, unchecked powers

that hinders the Constitution’s careful balance of

powers. This Court should, at the least, strengthen

2 Under Chevron, courts ask if Congress spoke directly to the

precise question, for then the court and agency “must give effect

to the unambiguously expressed intent of Congress,” but “[i]f the

statute is silent or ambiguous” on the precise question, the court

must ask “whether the agency's [interpretation] is based on a

permissible construction of the statute.” Chevron, 467 U.S. at

842–43 (emphasis added).

5

Chevron Step One by barring “silence” as a basis for

regulatory interpretation.

I.

CHEVRON’S CHIEF ERROR: STATUTORY

SILENCE IS NOT AMBIGUITY.

A. Chevron Deference Ought Not Apply to

Statutory Silence.

Chevron’s framework rests on the theory that an

agency fills gaps explicitly or implicitly left by

Congress. See Chevron, 467 U.S. at 843. Filling in

explicit gaps or resolving potentially conflicting

provisions is materially different than “implicit” gaps

supposedly from statutory silence. Allowing deference

based on implicit silence wreaks havoc upon

Americans who must contend with unelected

bureaucrats acting in place of Congress.

Explicit gaps emanate “from an express

delegation of authority to the agency to elucidate a

specific provision of the statute by regulation,” leaving

agencies with restricted interpretative powers and a

mandate to apply the law as written. Id. at 843–44.

Explicit gaps come from statutes that tell agencies to

use their expertise.

The examples of explicit gaps asking for

rulemaking are numerous. The Secretary of

Agriculture, in the effort to prevent forest fires, “may

make such rules and regulations and establish such

service as will insure the objects of such reservations,

namely, to regulate their occupancy and use and to

preserve the forests thereon from destruction.” 16

U.S.C. § 551. Congress told the Department of Health

and Human Services to “promulgate regulations to

6

establish and implement an administrative process

for the resolution of claims by covered entities that

they have been overcharged for drugs.” 42 U.S.C.

§ 256b(d)(3)(A). The Federal Energy Regulatory

Commission has the explicit power to “prescribe, and

from time to time thereafter revise, such rules as it

determines necessary” in the aid of “encourage[ing]

cogeneration and small power production,” and

“encourage[ing] geothermal small power production

facilities of not more than 80 megawatts capacity.” 16

U.S.C. § 824a-3(a). And Congress can create whole

new areas of regulatory responsibility for an agency.

For example, Congress empowered—explicitly—the

Federal Trade Commission to regulate beyond its

typical jurisdiction to include protecting online

consumer reviews. 15 U.S.C. § 45b(d)(2)(A).

In contrast, implicit gaps generated by “silence”

give agencies unchecked interpretive powers so long

as an interpretation is reasonable.3 Vital to a court’s

implicit delegation inquiry is Chevron’s inquiry if the

statute is “silent or ambiguous,” for a finding of silence

or ambiguity seemingly permits courts to proceed to

Step Two. Chevron, 467 U.S. at 843 (emphasis added).

Much of this tension between explicit and implicit

ambiguity is better characterized as a debate on the

delegation doctrine. Sometimes silence might

“convey… a refusal to tie the agency’s hands.” Entergy

Corp v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009). But

statutory silence is better interpreted as Congress

Courts generally use “permissible” and “reasonable”

interchangeably. See e.g., Barnhart v. Walton, 535 U.S 212, 224

(2002) (noting that “the Agency’s regulation seems a reasonable,

hence permissible, interpretation of the statute”).

3

7

limiting discretion. See, e.g., Whitman v. Am.

Trucking Associations, 531 U.S. 457, 472 (2001)

(rejecting idea that “an agency can cure an unlawful

delegation of legislative power by adopting in its

discretion [its own] construction”); Entergy, 556 U.S.

at 223 (applying American Trucking). Fundamentally,

“[w]ere courts to presume a delegation of power absent

an express withholding of such power, agencies would

enjoy virtually limitless hegemony, a result plainly

out of keeping with Chevron and quite likely with the

Constitution as well.” Ethyl Corp. v. EPA, 51 F.3d

1053, 1060 (D.C. Cir. 1995). That is what we have

here: an agency creating a whole fee structure based

on the silence of the statute.

In the case of Loper Bright, we should not be

asking if the agency fee is reasonable. That is a Step

Two question. Instead, under Step One, a better rule

is that silence “does not necessarily connote

ambiguity, nor does it automatically mean that a court

can proceed to… [S]tep [T]wo.” Arangure v. Whitaker,

911 F.3d 333, 338 (6th Cir. 2018). Interpretations of

silence must therefore stem from specific “grant of

power” to proceed to Step Two. Am. Bus Ass’n v.

Slater, 231 F.3d 1, 9 (D.C. Cir. 2000) (Sentelle, J.,

concurring); see also La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355, 357 (1986) (emphasizing that “an agency

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

Congress confers power upon it”). By allowing for

silence to be the basis for new agency action, the

regulated community faces surprises from regulatory

“legislation.”

Loper Bright illustrates this recurring problem. In

conducting its Chevron analysis, the D.C. Circuit read

silence as ambiguity, resulting in the agency

8

interpretation being upheld as reasonable at Step

Two. App-13, App-15. But it conflated what happens

with foreign fisheries with what happens in statute to

domestic firms. App-10-11. In § 204 of the MagnusonStevens Act, Congress prescribed foreign fishing fees,

see 16 U.S.C. § 1824(b)(10), and in Section 201,

Congress established a fee schedule requiring owners

and operators of foreign vessels to pay for certified

observers’ services, see 16 U.S.C. § 1821(h)(4). But

nowhere in the Magnuson-Stevens Act did Congress

expressly and unambiguously delegate to the Service

the authority to require Regional Fishery

Management

Councils—regulating

domestic

fisheries—to pay a fee for the cost of observers

required by the Service. Court approval of the agency’s

ultra vires action here, based on “silence” in the

statute, is usurping Congress’s core power to write

laws for the Executive branch to follow.

B. Taxpayers Suffer from Regulations

Based Upon Statutory Silence.

It is not only fishermen who suffer under

expansive readings. Loper Bright is one of the

numerous instances where an agency’s interpretation

of a “silent or ambiguous” statute exceeds the bounds

erected by Congress’s unambiguously expressed

intent, but a court upheld the interpretation as

reasonable, conflating Chevron Steps One and Two.

Taxpayers often must battle against agency

rulemaking based upon silence.

One such example is the issue of the IRS charging

a fee for a regulatory program struck down under

Chevron—even though the program was gone,

9

nonetheless the D.C. Circuit found that the fees could

still be collected. In 2010, the Internal Revenue

Service created a new regulation to register tax

preparers (people who prepare a client’s tax return for

compensation). Montrois v. United States, 916 F.3d

1056, 1058 (D.C. Cir. 2019). The problem: the IRS

charged tax preparers a rather large fee in order to

register with the IRS and attached a whole regulatory

scheme in connection with getting a Preparer Tax

Identification Number (“PTIN”). Id.

Despite the regulatory regime being mostly

invalidated, the D.C. Circuit still held that the PTIN

fee could be collected by the bureau. Id. at 1060

(discussing Loving v. IRS, 742 F.3d 1013 (D.C. Cir.

2014), which invalidated the regulatory scheme); Id.

at 1062 (upholding the PTIN fee despite Loving’s

general gutting of the regulation). To be clear, the D.C.

Circuit already found that the PTIN regulations failed

under Chevron Steps One and Two. Loving, 742 F.3d

at 1022 (“Put in Chevron parlance, the IRS's

interpretation fails at Chevron step 1… [the

regulation] also fail at Chevron step 2 because it is

unreasonable”). Nonetheless, the Montrois court still

upheld the regulatory fee based upon a general grant

of fee collecting authority under 31 U.S.C. § 9701 (the

Internal Revenue Code itself was silent on the matter

of PTINs).4 Montrois, 916 F.3d at 1062.

4 Note that 31 U.S.C. § 9701 is a general grant of authority for

government agencies to charge “service fees.” The government

should not rely on § 9701 in Loper Bright’s case because under

31 U.S.C. § 3302(b), the revenue collected must go to the

Treasury—not kept by the agency to self-fund its programs. The

fees at issue in this case are also not valid “service fees” with a

10

The Montrois court found Chevron Step One was

satisfied based on the general fee statute despite the

Internal Revenue Code’s silence on charging fees in

this context. Id. at 1063-64. The D.C. Circuit then

went to Step Two to find the fee requirement

reasonable. See id. at 1067 (relying on Encino

Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016),

that only “a “‘satisfactory explanation for [the

agency’s] actions’” need be “‘reasonably be discerned’”)

(bracket supplied).

Likewise, the Seventh Circuit has held that a

Treasury regulation establishing a two-year

limitations period to request equitable innocent

spouse relief was reasonable, despite statutory silence

on any deadline to ask for such relief. See Lantz v.

C.I.R., 607 F.3d 479, 481 (7th Cir. 2010) (applying

Chevron). At issue were statutory procedures for an

innocent spouse to be relieved from joint and several

liability with their spouse who owes back taxes. See 26

U.S.C. § 6015(c). If the IRS is actively collecting back

taxes, generally the innocent spouse has two years

“after the date the Secretary has begun collection

activities” to ask for relief. 26 U.S.C. § 6015(c)(3)(B)

(procedures to limit liability for taxpayers no longer

married or taxpayers legally separated or not living

together); cf. 26 U.S.C. § 6015(b)(1)(E) (same, but

applicable to all joint filers). Congress specifically

provided for equitable relief without a deadline. 26

U.S.C. § 6015(f). But, 26 C.F.R. § 1.6015–5(b)(1)

specific benefit to domestic fishers because the fishers do not get

a specific benefit to paying for the inspectors to board their ships.

11

imposed, by regulation, a two-year limitation for

seeking equitable relief.

The Tax Court declined to apply the regulatory

deadlines, concluding that Congress created deadlines

in subsection (b) and (c) but not (f), for a reason. Lantz

v. C.I.R., 132 T.C. 131, 139 (2009). The Seventh

Circuit reversed and upheld the IRS’s regulation,

stating “[w]hether the Treasury borrowed the twoyear limitations period from subsections (b) and (c) or

simply decided that two years was the right deadline

is thus of no consequence; either way it was doing

nothing unusual.” Lantz, 607 F.3d at 482. Thus, the

Seventh Circuit acquiesced to agency legislation that

denied the explicit equitable relief Congress

commanded in statute.5

As these cases demonstrate, when the tax laws

are silent and the administrative state wishes to

regulate, then the taxpayers suffer.6 All these cases

5 Chevron originally reserved to the judiciary “the final

authority on issues of statutory construction” and commanded

courts to “reject administrative constructions which are contrary

to clear congressional intent.” Chevron, 467 U.S. at 843 n.9

(collecting cases). This has been largely ignored in later case law.

See, e.g., City of Arlington, Tex. v. FCC, 569 U.S. 290, 301 (2013)

(deferring to agency’s own interpretation of its jurisdictional

reach).

6 But when it favors the government, the IRS tells taxpayers

to not read too much into silence. See, e.g., Chandra Wallace,

Don’t Read Into Silence in Corporate AMT Notice, IRS Says,

TaxNotes (June 9, 2023) https://www.taxnotes.com/tax-notestoday-federal/corporate-alternative-minimum-tax/dont-readsilence-corporate-amt-notices-irs-says/2023/06/09/7gvl5 (noting

that an IRS official recently maintained that “[i]f [IRS] is silent

on an issue… [IRS officials] don’t want people to infer anything”).

12

are in direct tension with this Court’s direction in

National Cable Television Association, Inc. v. United

States, 415 U.S. 336, 340 (1974), that “[t]axation is a

legislative function, and Congress… is the sole organ

for levying taxes.”7 Agencies should not be collecting

money on their own accord.

The court below points to “necessary and

appropriate” clauses as grants of authority to the

Service. See App-7. General grants of authority to

promulgate “necessary and appropriate” rules and

regulations, however, cannot expand the provision’s

scope, nor does it mean that Congress directly spoke

on the precise question at issue. In this Court’s words:

“silence [is] exactly that: silence.” EEOC v.

Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774

(2015).

Congress’s deafening silence on whether the

Magnuson-Stevens Act permitted the National

Marine Fisheries Service to require industry to pay

the cost of monitors indicates that Congress did not

authorize the agency to fix the gap. Removing

Chevron’s blessing of agency rulemaking based on

“statutory silence” for this case will help taxpayers in

other cases presented with ultra vires regulations.

7 Prior to Chevron, this Court long held that silence is “a poor

beacon to follow in discerning the proper statutory route” in

deciding scope of agency authority. Zuber v. Allen, 396 U.S. 168,

185 (1969). A thread of this idea remains. Burns v. United States,

501 U.S. 129, 136 (1991) (noting that “[n]ot every silence is

pregnant,” quoting State of Ill., Dep’t of Pub. Aid v. Schweiker,

707 F.2d 273, 277 (7th Cir. 1983)) (bracket supplied).

13

C. Courts Know How to Demand Clarity

Before Expanding Regulatory Reach.

In a narrow line of cases dealing with secondary

civil liability, this Court has declined to uphold

usurped authority when the statute was silent. This

Court should expand that line of cases—covering

everything from securities law to anti-terrorism

statutes to campaign finance law—to apply to the rest

of Chevron’s progeny.

In Central Bank of Denver, this Court held that

secondary civil liability cannot be inferred when a

statute is silent because, unlike federal criminal laws,

there is no general secondary civil liability statute. See

Central Bank of Denver, N.A. v. First Interstate Bank,

N.A., 511 U.S. 164, 185 (1994). And Central Bank of

Denver has been applied under Chevron analyses as

well. See, e.g., Fed. Election Comm’n v. Swallow, 304

F. Supp. 3d 1113, 1118 (D. Utah 2018).

At issue in Central Bank of Denver was whether

secondary civil liability could attach to violations of

the securities laws. The Central Bank of Denver

served as indenture trustee for bond issues

surrounding

a

Colorado

Springs,

Colorado

development. See Central Bank of Denver, 511 U.S. at

167. When the real estate did not meet the contractual

threshold of value for the bonds and defaulted, the

First Interstate Bank of Denver sued the development

authority, the underwriters, and the Central Bank of

Denver, claiming “violations of § 10(b) of the

Securities Exchange Act of 1934.” Id. at 168.

The Central Bank of Denver Court held that, “the

text of the statute controls our decision,” id. at 173,

14

because the government “cannot… read [statutory

liability] more broadly than its language and the

statutory scheme reasonably permit,” id. at 174

(quoting Chiarella v. United States, 445 U.S. 222, 234

(1980)) (internal quotation marks omitted). The

statutory language of § 10(b) of the Securities Act did

not mention aiding and abetting. Id. at 175.

Furthermore, “[t]he federal courts have not relied on

the ‘directly or indirectly’ language when imposing

aiding and abetting liability under § 10(b), and with

good reason. There is a basic flaw with this

interpretation... aiding and abetting liability extends

beyond persons who engage, even indirectly, in a

proscribed activity.” Id. at 176 (emphasis added). That

is, “aiding and abetting liability reaches persons who

do not engage in the proscribed activities at all.” Id.

Therefore, this Court recognized that “Congress

knew how to impose aiding and abetting liability

when it chose to do so.” Id. (collecting examples from

statute). The courts are not free to “amend the statute

to create liability for acts that are not themselves…

within the meaning of the statute.” Id. at 177-78.

Whether or not it is good policy to allow for secondary

liability is no matter—the statutory language

controls. Id. at 188. (“Policy considerations cannot

override our interpretation of the text and structure of

the Act, except to the extent that they may help to

show that adherence to the text and structure would

lead to a result ‘so bizarre’ that Congress could not

have intended it.”). Since the statute did not apply

aiding and abetting liability, “the statute itself

resolve[d] the case.” Id. at 178.

As the dissenting justices pointed out, the holding

of Central Bank of Denver not only applied to the

15

private civil claims at issue there but claims by the

Securities and Exchange Commission as well. See id.

at 200 (Stevens, J., dissenting) (“The majority leaves

little doubt that the Exchange Act does not even

permit the SEC to pursue aiders and abettors in civil

enforcement actions”).

Congress reacted to Central Bank of Denver and

corrected the silence by enacting a positive statute for

the SEC to rely upon. See, e.g., Stoneridge Inv.

Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148,

158 (2008) (noting legislation, codified at 15 U.S.C.

§ 78t(e), in response to Central Bank of Denver).

Therefore, while Central Bank of Denver was a blow

to agency authority, Congress decided to affirmatively

react. We can expect no less in the case at bar if

Congress wishes to give the National Marine

Fisheries Service has the power it seeks.

Nor is Central Bank of Denver only applicable in

the financial regulation context. Lower courts apply

the rule of Central Bank of Denver’s to other federal

statutes, including statutes in the national security

context. For example, the en banc Seventh Circuit

applied Central Bank of Denver’s rationale to hold that

statutory silence cannot imply Congressional

acquiescence to creating secondary liability for those

accused of helping terrorists. Boim v. Holy Land

Found. for Relief & Dev., 549 F.3d 685, 689 (7th Cir.

2008) (en banc) (holding “statutory silence on the

subject of secondary liability means there is none”).

The Second Circuit agreed. See, e.g., Terrorist Attacks

on September 11, 2001 v. Al Rajhi Bank, 714 F.3d 118,

123 (2d Cir. 2013) (citing Central Bank of Denver, 511

U.S. at 185).

16

And even when statutes are complex and touch on

fundamental rights, Central Bank of Denver’s rule is

workable in the courts. For example, a district court

struck down a Federal Election Commission (“FEC”)

regulation because it went beyond Federal Election

Campaign Act’s unambiguous language. In creating

secondary liability by agency fiat, the Swallow court

held, the FEC “went too far, exceeding its authority to

write regulations and improperly intruding into the

realm of law-making that is the exclusive province of

Congress.” Swallow, 304 F. Supp. at 1118. And just

like Congress in the wake of Central Bank of Denver,

the FEC adapted to the Swallow decision by removing

the offending regulation. Fed. Election Comm’n,

Notice 2023-09, Contributions in the Name of

Another, 88 Fed. Reg. 33816 (May 25, 2023) (interim

final rule removing regulation at issue in Swallow).

The Central Bank of Denver line of cases show

that the judiciary can carefully review regulatory

action without deferring to rulemaking in “silence.”

Congress demonstrated it can adapt to the rulings by

giving explicit permission in statute when it so

desires. Likewise, agencies can adapt and make

proper rules, as happened in Swallow. Unlike

Chevron’s deferral on silence, Central Bank of

Denver’s mandating express Congressional language

is in line with our Constitutional order—and

practically workable in the real world.

17

II. CONGRESS KNOWS HOW TO GRANT THE

AUTHORITY TO COLLECT FEES.

“Article I Section 1 of the Constitution vests all

legislative power in ‘a Congress of the United States,’

which alone is authorized to make laws,” and “all

others, including independent government agencies,

are not.” Swallow, 304 F. Supp. 3d at 1118. The case

at bar highlights the administrative state’s rapid

growth and blurring the line between these once

separate and distinct branches of government.

At issue here is a violation of Congress’ core

powers over taxing and spending. Only Congress has

the federal “Power To lay and collect [federal] Taxes,

Duties, Imposts and Excises.” U.S. Const. art. I, § 8,

cl. 1. It is the role of Congress to set out the statutory

framework, not the executive agencies. See, e.g., The

Federalist No. 47 (Madison) at 250 (George W. Carey

and James McClellan, eds. 2001) (articulating that

“the preservation of liberty requires that the three

great departments of power should be separate and

distinct”) (comma omitted). Congress “commands the

purse” and “prescribes the rules” regulating the duties

and rights of each citizen. The Federalist No. 78.

(Hamilton), id. at 402.

When the Congress wants an agency to collect

money, it knows how to do so explicitly. For example,

in the Securities & Exchange Acts, Congress expressly

and unambiguously granted the Securities and

Exchange Commission (“SEC”) the authority “to

collect transaction fees and assessments that are

designed to recover the costs to the Government of the

annual appropriation to the Commission by

Congress.” 15 U.S.C. § 78ee(a). In the Leahy–Smith

18

America Invents Act, Congress expressly and

unambiguously delegated to the United States Patent

and Trademark Office (“USPTO”) the authority to set

and adjust patent fees. 35 U.S.C. § 41 (comprehensive

fee schedule). And in the Federal Deposit Insurance

Act, Congress expressly and unambiguously delegated

to the Federal Deposit Insurance Corporation (the

“FDIC”) the authority to require insured institutions

“pay the Corporation any fee which the Corporation

may by regulation prescribe, after giving due

consideration to the need to establish and maintain

the reserve ratio of the Deposit Insurance Fund.” 12

U.S.C. § 1815(d)(1).

Congress also controls what government

programs are funded out of the treasury, as an

important check on agency action. U.S. Const. art. I,

§ 9, cl. 7 (“No Money shall be drawn from the

Treasury, but in Consequence of Appropriations made

by Law”). This power of appropriations is “a most

useful and salutary check upon profusion and

extravagance, as well as upon corrupt influence and

public peculation” by executive agencies. Joseph

Story, Commentaries on the Constitution of the

United States: With A Preliminary Review of the

Constitutional History of the Colonies and State

Before the Adoption of the Constitution § 1348, at 215

(4th ed. 1873);8 see also Office of Pers. Mgmt. v.

Richmond, 496 U.S. 414, 427 (1990) (quoting same).

This constitutional order exists to “assure that public

funds will be spent according to the letter of the

8 Archived online at:

https://repository.law.umich.edu/cgi/viewcontent.cgi?filename=1

8&article=1105&context=books&type=additional.

19

difficult judgments reached by Congress as to the

common good and not according to the individual

favor of Government agents.” Richmond, 496 U.S. at

428 (emphasis added). Allowing, under the guise of

Chevron deference, agencies to self-fund undermines

this essential power of the Congressional purse.

In Section 204 of the Magnuson-Stevens Act,

Congress prescribed foreign fishing fees. See 16 U.S.C.

§ 1824. And in Section 201, Congress established a fee

schedule requiring owners and operators of foreign

vessels to pay for certified observers’ services. See 16

U.S.C. § 1821. But, nowhere in the Act did Congress

expressly and unambiguously delegate to the Service

the authority to collect fees from domestic fisheries—

especially when appropriated money ran out. Instead,

by a plain reading of the Act, Congress chose to be

silent, and perhaps by that silence, have only those

not otherwise taxed heavily—i.e., those under foreign

flags—pay their share. Domestic fisheries like Loper

Bright already pay their way in taxes. The agents

should not take this silence and become roving tax

collectors.

Statutory silence should not be a justification for

unelected agency heads to change the law. This Court

should, at the very least, clarify that statutory silence

cannot be used this way. Agencies need clear

mandates before they can collect fees. That has not

happened here, and therefore the program’s fees are

ultra vires.

CONCLUSION

For the foregoing reasons, Amicus requests that

this Court reverse the decision below.

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Respectfully submitted,

JOSEPH D. HENCHMAN

Counsel of Record

TYLER MARTINEZ

NATIONAL TAXPAYERS

UNION FOUNDATION

122 C Street N.W., #700

Washington, D.C. 20001

jbh@ntu.org

(703) 683-5700

July 24, 2023