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

---------------------------------♦--------------------------------BRIEF FOR GOVERNOR BRIAN P. KEMP AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------DAVID B. DOVE

Counsel of Record

Executive Counsel to

Governor Brian P. Kemp

SAMUEL L. HATCHER

201 State Capitol

Atlanta, GA 30334

(706) 296-9360

david.dove@georgia.gov

Counsel for Amicus Curiae

July 24, 2023

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

TABLE OF CONTENTS

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

INTEREST

OF

THE

AMICUS

CURIAE ................................................................. 1

SUMMARY OF ARGUMENT................................ 4

ARGUMENT .......................................................... 5

A.

Chevron Is A Judicially-Made

Firewall That Precludes States From

Solving Critical Questions Regarding

The Preemption Of State Law By

Federal Agency Regulation.................................... 8

B.

Affording Chevron Deference To

Agency Interpretations Undermines

States' Ability to Implement And

Administer Policies Through Their

Powers Even Where There Is Not

i

Direct Preemption That Implicates The

Federalism Clear Statement Rule. ...................... 19

C.

Overturning Chevron Would Not

Leave Courts Powerless To Defer To

Agency

Interpretations;

Merely

Require

Explicitly

Identify

It

Would

That

Congress

The

Narrow,

Technical Questions It Intends To

Defer To Agencies For Resolution. ...................... 26

CONCLUSION ..................................................... 32

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Association of Realtors v.

Department of Health and

Human Services,

141 S.Ct. 2485 (2021) .................................. 13

Alaska Department of Environmental

Conservation v. Environmental

Protection Agency,

540 U.S. 461 (2004) ..................................... 19

Bond v. United States,

572 U.S. 844 (2014) ..............................3, 6, 11

Bowen v. Georgetown University

Hospital,

488 U.S. 204 (1988) ..................................... 29

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

Resources Defense Council, Inc.,

467 U.S. 837 (1984) .................. 8, 9, 17, 30-31

City of Arlington v. FCC,

569 U.S. 290 (2013) ....................................... 8

iii

Egan v. Delaware River Port

Authority,

852 F.3d 263 (3d Cir. 2017) ......................... 11

Gibbons v. Ogden,

22 U.S. 1 (1824) ............................................. 5

Gila River Indian Community v.

United States,

729 F.3d 1139 (9th Cir. 2013) .... 15-17, 25, 32

Gonzales v. Oregon,

546. U.S. 243 (2006) ...............................20, 28

Gregory v. Ashcroft,

501 U.S. 452 (1991) .................... 12, 13, 28-29

Kisor v. Wilkie,

139 S.Ct. 2400 (2019) .................12, 17, 27, 31

Louisiana Public Service Commission

v. Federal Communications

Commission,

476 U.S. 355 (1986) ..................................... 29

Marbury v. Madison,

1 Cranch 137 (1803) ...................................... 5

Motion Picture Association of

America, Inc. v. Federal

Communications Commission,

309 F.3d 796 (D.C. Cir. 2002) ..................... 29

iv

Murphy v. Natl. Collegiate Athletic

Ass’n,

138 S.Ct. 1461 (2018) .................................... 3

National Federation of Independent

Businesses v. Sebelius,

567 U.S. 519 (2012) ............................3, 20, 25

Railway Labor Executives’ Association

v. National Mediation Board,

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

amended 38 F.3d 1224 (D.C.

Cir. 1994) ..................................................... 29

Solid Waste Agency of Northern Cook

County v. United States Army

Corps of Engineers,

531 U.S. 159 (2001) ..........................13, 17, 28

United States Forest Service v.

Cowpasture River Preservation

Association,

140 S.Ct. 1837 (2020) .................................. 14

West Virginia v. Environmental

Protection Agency,

142 S.Ct. 2587 (2022) ...... 11-13, 19, 24, 27-28

v

Whitman v. American Trucking

Associations, Inc.,

531 U.S. 457 (2001) ..................................... 18

Will v. Michigan Department of State

Police,

491 U.S. 58 (1989) ....................................... 12

Constitutional Provisions

U.S. Const. Amend. X .............................................. 6

Statutes

16 U.S.C. § 1801 et seq. ............................................ 2

Regulations

16 C.F.R. § 456.2 ...................................................... 7

21 C.F.R. § 102.39 .................................................... 7

42 C.F.R. § 482.80 .................................................. 21

50 C.F.R. § 648.11 .................................................... 2

Other Authorities

Aleksandra Zgierska, Impact of Patient Satisfaction

Ratings On Physicians And Clinical Care,

Patient Preference and Adherence vol. 8 437,

442 (Apr. 3, 2014) ........................................ 22

Andrew Grossman, FBI Agents Say Rivals

Encroach On Their Turf,

The Wall Street Journal (Aug. 26, 2014)...... 9

vi

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

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

Casey Ross, Hospitals Are Throwing Out Organs

And Denying Transplants To Meet Federal

Standards,

PBS (Aug. 13, 2016) .................................... 21

David S. Tatel, The Administrative Process and the

Rule of Environmental Law,

34 Harv. Envtl. L. Rev. 1 (2010) ................. 10

Jimmy Sexton, America Has Too Many Rules,

The Wall Street Journal (July 9, 2023) ........ 7

Ronald Hirsch, The Opioid Epidemic: It’s Time to

Place Blame Where It Belongs,

Mo. Med. vol. 114:2, 82-90 (2017) ............... 22

Solid Transplant Programs - Outcome Thresholds Revised Guidelines,

Centers for Medicare and Medicaid Services

(May 13, 2016) ............................................. 21

Taylor A. Moffett, CFTC & SEC: The Wild West of

Cryptocurrency Regulation,

57 U. Rich. L. Rev. 713 (2023) .................... 10

The Federalist No. 45

(Clinton Rossiter ed., 2003)........................ 6-8

vii

INTEREST OF THE AMICUS CURIAE 1

Brian P. Kemp is the 83rd Governor of the

State of Georgia. The citizens of the State of Georgia

have twice elected Governor Kemp on his platform

of supporting business and ensuring economic

development for all Georgians. This includes

reducing bureaucratic hurdles for employers and

employees.

Governor Kemp submits this brief in support

of the Petitioners and urges the Court to overturn

Chevron, or at least clarify statutory silence does not

create an ambiguity triggering Chevron deference.

As chief executive of the State of Georgia, Governor

Kemp knows the damage federal regulations can

have when federal agencies extend their regulatory

purview

through

self-serving

statutory

interpretations. Governor Kemp has a vested

interest in ensuring the will of Georgia’s voters is

carried out and not undermined by bureaucratic

edicts with national effect. He also knows the

difficulty of enacting statewide, comprehensive

1 Rule 37 Statement: No counsel for a party

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

or counsel other than the amicus curiae and his

counsel made a monetary contribution intended to

fund preparation or submission of this brief.

1

policy measures in the face of unpredictable

intrusion by federal agencies into areas traditionally

reserved for state power.

Chevron should be overturned for a multitude

of reasons, as Petitioners and other amicus curiae

argue. One reason, sufficient on its own, is Chevron’s

propensity to deny judicial remedy to agency

interpretations that upset traditional federalism

principles. Any action the Court takes here should

be evaluated against the backdrop of the looming

questions over the proper extent of federal authority

into areas traditionally reserved to the States.

At first glance, the regulations at issue in this

case do not implicate federalism concerns. The

Magnuson-Stevens Act (MSA) governs federal

fisheries outside the territory of any State. See 16

U.S.C. § 1801 et seq. The National Marine Fisheries

Service (NMSF) interpreted the MSA to allow for a

mandatory, industry-funded monitoring program in

the Atlantic herring fishery. 50 C.F.R. §§ 648.11(g)

& (h). However, the broader question the Court has

chosen to address–whether Chevron should be

overruled or clarified–has implications far beyond

the waters off the New England coast.

A fundamental question about the nature of

our federal system and the proper division of power

between the States and the Federal Government

looms on the horizon. The Court’s recent decisions

bring this conflict closer to the forefront and place

2

limits on Congress’s ability to interfere directly with

traditional state concerns. “Permitting the Federal

Government to force the States to implement a

federal program would threaten the political

accountability key to our federal system.” Natl. Fed.

of Independent Businesses v. Sebelius, 567 U.S. 519,

578 (2012); see also Bond v. United States, 572 U.S.

844, 866 (2014) (declining to adopt interpretation of

chemical weapons statute that would cause “a

serious reallocation of criminal law enforcement

authority between the Federal Government and the

States”); Murphy v. Natl. Collegiate Athletic Ass’n,

138 S.Ct. 1461, 1478 (2018) ("[P]rohibiting state

authorization of sports gambling...violates the

anticommandeering rule" and is a “direct affront to

state sovereignty”).

Overruling Chevron here will move this

critical debate to the forefront. The Chevron analysis

focuses on what Congress intended to do, attempting

to discern Congressional intent from silent or

ambiguous statutes. But focusing on whether

Congress intended to delegate interpretative powers

to federal agencies obfuscates scrutiny of the

underlying exercise of power. The Court should

overrule Chevron and require Congress to clearly

call for agency actions that alter the federal-state

balance. Requiring a clear statement in all

circumstances—not just the most extreme cases—

brings the fundamental question of what Congress

can do to the forefront.

3

SUMMARY OF ARGUMENT

Chevron may have seemed like a pragmatic

standard when it was decided in 1984. But the

decision, as applied in the decades since has

fundamentally altered Americans' relationship with

the Federal Government. By insulating a federal

agency’s interpretation of its enabling statute,

Chevron and its progeny stand in stark contrast to

the traditional notions of federalism that underpin

the Constitution. Chevron’s presumption that

Congress may implicitly delegate legislative power

to federal agencies—including the power to preempt

state policies—undermines the Court’s longstanding

requirement that when Congress intrudes into the

traditional domain of the States, it must do so

explicitly. And, even when federal agencies do not

directly preempt state policies, every federal agency

regulation constrains state action. Regulations have

ancillary effects, often leading to unintended and

negative consequences not contemplated by federal

agencies. And, unlike Congressional action, States

(and

their

citizens)

lack

direct

political

representation in the regulatory process to ensure

their interests are protected.

Eliminating Chevron may seem like a

daunting proposition. If there is no Chevron

deference, what remains? Chevron has stood as a

proxy for federal regulation as a whole, and its

proponents may analogize it to the keystone in an

arch–without Chevron, surely the system as a whole

would descend into chaos? Yet the history of

4

administrative deference at the state level would

suggest this parade of horribles is, at worst, a remote

possibility. Just as Congress can only legislate

through the powers delegated to it by the

Constitution, agencies would be constrained to act

within the parameters set forth by Congress.

Overturning Chevron would not necessarily prevent

Congress from delegating the resolution of certain

technical questions to agencies; it would merely

require that Congress do so explicitly.

ARGUMENT

It is axiomatic in our federal system that

authority is only conferred by express grants and

delegations. Gibbons v. Ogden, 22 U.S. 1, 33 (1824)

(“[T]he Constitution of the United states is one of

limited and expressly delegated powers, which can

only be exercised as granted, or in the cases

enumerated.”). The federal government is not free to

act carte blanche; all federal power extends from a

handful of provisions in the Constitution. Indeed, for

a system of limited government to function, the

default presumption must be that silence indicates

a lack of authority, not an unspecified grant of

authority. Id. at 195 (“The enumeration presupposes

something not enumerated.”); see also Marbury v.

Madison, 1 Cranch 137, 176 (1803) (“The powers of

the legislature are defined and limited; and that

those limits may not be mistaken, or forgotten, the

Constitution is written.”). The Constitution is

explicit as to how this paradigm affects the balance

between states and the federal government. “The

5

powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”

U.S. Const. Amend. X. The Tenth Amendment is not

merely a statement of intent; it reflects a critical

bargain that is fundamental to our system of

government.

The powers delegated by the proposed

Constitution to the federal government

are few and defined. Those which are to

remain in the State governments are

numerous and indefinite . . .. The

powers reserved to the several States

will extend to all objects which, in the

ordinary course of affairs, concern the

lives, liberties, and properties of the

people, and the internal order,

improvement, and prosperity of the

State.

The Federalist No. 45 (J. Madison) (Clinton Rossiter

ed., 2003); see also Bond v. United States, 572 U.S.

844, 887 (Thomas, J., concurring) ("Debates

preceding...ratification ...confirm the limited scope

of the powers possessed by the Federal

Government…. The Framers understood that most

regulatory matters were to be left to the States.").

The Tenth Amendment’s protections are emblematic

of the fundamental understanding that the Federal

Government may only act pursuant to specific,

enumerated powers.

6

The Federal Government has evolved far

beyond this limited scope envisioned by the

Framers. Federal policy impacts virtually every

aspect of daily life. The public is most familiar with

blockbuster legislation that dominates the news

cycles, but the Federal Government undoubtedly

has its most direct impact on the public through

regulations promulgated by executive agencies.

Agencies

regulate

everything

from

the

nomenclature of onion rings to the paperwork

optometrists must provide to patients following eye

examinations. See 21 C.F.R. § 102.39 (requiring

different labels for onion rings made from diced

onions versus onion rings made from dried diced

onions); 16 C.F.R. § 456.2 (setting requirements for

what must be provided to a patient following an eye

examination). 2

Regardless of the wisdom of the

substantive policy choices adopted by federal

regulatory agencies, federal regulation undeniably

extends well into the “objects which...concern the

lives, liberties, and properties of the people,” a realm

By one estimate, federal agencies

promulgated more than 88,000 federal regulations

between 1995 and 2016. See Jimmy Sexton, America

Has Too Many Rules, The Wall Street Journal (July

9,

2023)

available

at

https://www.wsj.com/articles/america-has-toomany-rules-taxes-regulation-laws-systeminequality-756e9571.

7

2

intended to be “reserved to the Several States.”

Federalist No. 45 (J. Madison). “The administrative

state… ‘touches almost every aspect of daily life.’”

City of Arlington v. FCC, 569 U.S. 290, 313 (2013)

(Roberts, C.J., dissenting). Chevron is not merely a

byproduct of the growth of the administrative state;

Chevron enabled this exponential growth.3

A. Chevron Is A Judicially-Made Firewall

That Precludes States From Solving

Critical Questions Regarding The

Preemption Of State Law By Federal

Agency Regulation.

The

most

pernicious

examples

of

administrative overreach are federal regulations

which expand federal authority into areas

previously reserved to the States. For thirty-nine

years, the Court’s decision in Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837

(1984), has shielded these interpretations from

Chevron has led to an explosion of

administrative action. For instance, in the ten years

before Chevron was decided, the EPA issued an

average approximately five rules per year. In the

ten years following Chevron, this figure more than

tripled, to nearly sixteen per year. The EPA

averaged more than 695 rules annually over the last

ten years.

8

3

meaningful judicial review. These interpretations—

even those which do not trigger the Court’s existing

limits on agency or Congressional action—have

combined to vastly expand the regulatory purview of

federal agencies at the expense of the States’

reserved powers.

With the Chevron framework in place, it is

wasteful for states to pursue preemption challenges

against a federal agency’s decision-making, even in

the most egregious of circumstances. Chevron

deference has constrained courts to follow agency

interpretations any time there is a question of

authority, even where the only “ambiguity” in the

enabling statute is the lack of an explicit prohibition

against the agency’s proposed action. See Id., at 842

("If Congress has not directly addressed the precise

question at issue...the question for the court is

whether the agency’s answer is based on a

permissible construction of the statute."). Naturally,

agencies are loathe to issue interpretations that

could constrain their own actions. Agencies have

their own incentive structures and compete with one

another for prominence and funding.4 Moreover, the

The most familiar examples of these

conflicts are those between law enforcement

agencies. See Andrew Grossman, FBI Agents Say

Rivals Encroach On Their Turf, The Wall Street

Journal

(Aug.

26,

2014)

available

at

9

4

Executive Branch often has strong incentives to coopt agencies’ regulatory powers to achieve policy

goals that it could not achieve through the

legislative process. “Chevron obliterates this careful

design and encourages the Executive Branch

(whichever party controls it) to be extremely

aggressive in seeking to squeeze its policy goals into

ill-fitting statutory authorizations and restraints.”

Brett

M.

Kavanaugh,

Fixing

Statutory

Interpretation, 129 Harv. L. Rev. 2118, 2150 (2016);

see also David S. Tatel, The Administrative Process

and the Rule of Environmental Law, 34 Harv. Envtl.

L. Rev. 1, 2 (2010) (“In such cases, it looks for all the

world like agencies choose their policy first and then

later seek to defend its legality. This gets it entirely

backwards.”). Congress, for its part, has appeared

willing to abandon its own responsibilities to pass

difficult legislation. Chevron “leads to perverse

incentives, as Congress is encouraged to pass vague

https://www.wsj.com/articles/fbi-agents-say-rivalsencroach-on-their-turf-1409095148. Regulatory

agencies similarly compete, however, seeking to

increase the prominence of their own mission. See

generally Taylor A. Moffett, CFTC & SEC: The Wild

West of Cryptocurrency Regulation, 57 U. Rich. L.

Rev. 713 (2023) (describing the "turf war" between

the CFTC and the SEC over which agency should

have

primary

regulatory

authority

over

cryptocurrencies).

10

laws and leave it to agencies to fill in the gaps,

rather than undertaking the difficult work of

reaching consensus on divisive issues.” Egan v. Del.

River Port Auth., 851 F.3d 263, 279 (3d Cir. 2017)

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

is a bureaucratic inertia that makes regulatory

expansion

inevitable

and

difficult—if

not

impossible—to reverse.

The Court has issued several recent opinions

that cut into the theoretical underpinnings of

Chevron. The Court revitalized the major questions

doctrine to hold that the Environmental Protection

Agency’s (EPA) power to determine the “best system

of emission reduction” does not confer the authority

to “substantially restructure the American energy

market” by mandating a wholesale shift away from

coal-fired power plants. West Virginia v. EPA, 142

S.Ct. 2587, 2607, 2610 (2022). Though the EPA’s

interpretation

“had

a

colorable

textual

basis...common sense as to the manner in which

Congress would have been likely to delegate such

power to the [EPA] made it very unlikely that

Congress had actually done so.” Id. at 2609. The

Court has also required that when Congress passes

a law that substantially alters the federal-state

balance, it must clearly articulate its intent to do so.

“If the Federal Government would ‘radically

readjust[ ] the balance of state and national

authority, those charged with the duty of legislating

[must be] reasonably explicit’ about it.” Bond, 572

U.S. at 858 (quoting BFP v. Resolution Tr. Corp., 511

11

U.S. 531, 544 (1994)). And the Court has narrowed

the circumstances in which lower courts must defer

to agency interpretations of their own regulations.

Kisor v. Wilkie, 139 S.Ct. 2400, 2417 (2019) ("When

[an] agency has no comparative expertise in

resolving a regulatory ambiguity, Congress would

presumably not grant it that authority.").

Regardless of rhetorical framing, however, the

concerns articulated in these cases and others are

rooted in a fundamental concern about the proper

distribution of power in our federal system. “When

an agency claims the power to regulate vast swaths

of American life, it not only risks intruding on

Congress’s power, it also risks intruding on powers

reserved to the States.” West Virginia, 142 S.Ct. at

2621 (Gorsuch, J., concurring). These “clear

statement” rules essentially require that, in some

cases, Congress must make its intentions explicit,

rather than implicit.

Perhaps the longest standing “clear

statement” rule the Court has articulated relates to

Congressional (or agency) intrusion into realms

traditionally controlled by the States. “Congress

should make its intention ‘clear and manifest’ if it

intends to pre-empt the historic powers of the

States.” Will v. Mich. Dept. of State Police, 491 U.S.

58, 65 (1989) (citing Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947)). “This [clear] statement

rule is nothing more than an acknowledgement that

the States retain substantial sovereign powers

under our constitutional scheme, powers with which

12

Congress does not readily interfere.” Gregory v.

Ashcroft, 501 U.S. 452, 461 (1991). This is not to say

that Congress lacks the authority to legislate in

fields historically handled by the States; it simply

must do so explicitly through its enumerated

powers. “As long as it is acting within the powers

granted it under the Constitution, Congress may

impose its will on the States.” Id. at 460. But “[t]his

is an extraordinary power in a federalist system. It

is a power that we must assume Congress does not

exercise lightly.” Id.; see also West Virginia, 142

S.Ct. at 2621 (Gorsuch, J., concurring) (noting the

major questions doctrine and the federalism clear

statement rule “often travel together” due the risk of

“intruding on powers reserved to the States”).

The federalism clear statement rule

undoubtedly applies to actions taken by agencies,

not just Congress’s own actions. Statutory

ambiguity alone, to say nothing of mere statutory

silence, is not enough to support agency actions that

fundamentally alter the relationship between the

Federal Government and the States. “Where an

administrative interpretation of a statute invokes

the outer limits of Congress’s power, we expect a

clear indication that Congress intended that result.”

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Engineers, 531 U.S. 159, 172 (2001)

(SWANNC); Ala. Assoc. of Realtors v. Dept. of Health

and Human Servs., 141 S.Ct. 2485, 2489 (2021)

(requiring clear Congressional statement where

agency action “intrudes into an area that is the

13

particular domain of state law”). “Our precedents

require Congress to enact exceedingly clear

language if it wishes to significantly alter the

balance between federal and state power and the

power of the Government over private property.”

U.S. Forest Serv. v. Cowpasture River Preservation

Assoc., 140 S.Ct. 1837, 1849 (2020).

Even with the existing requirements of the

federalism clear statement rule, however, continued

deference to agencies under Chevron raises

significant federalism concerns. In some cases, an

agency’s actions are so radical that the federalism

clear statement rule plainly applies. Even if an

agency’s actions do not fundamentally alter the

relationship between the Federal Government and

the States as a whole, there are still significant

federalism

concerns.

Agency

actions

can

fundamentally alter the relationship between the

Federal Government and an individual state in ways

that are no less impactful to the state than the type

of fundamental alterations to which the Court has

applied the federalism clear statement rule. These

types of actions are far more likely to evade the

Court’s scrutiny. Lower courts may apply Chevron

and uphold agency action in these cases,

notwithstanding the existing precedents requiring

more than statutory ambiguity. These gradual

intrusions on the States’ reserved powers may not

represent a fundamental alternation to the FederalState balance in isolation, but the aggregate effect is

14

the same—the powers reserved to the States are far

fewer and more constrained than they once were.

In 2003, the Tohono O’odham Nation (the

“Nation”) purchased 135 acres of land in Maricopa

County, Arizona, that was surrounded by the City of

Glendale. Gila River Indian Comm. v. United States,

729 F.3d 1139, 1143 (9th Cir. 2013). The Nation

called on the Secretary of the Interior to take land

into trust for the benefit of the Nation under the Gila

Bend Act, arguing the land was not “within the

corporate limits of any city or town.” Id. at 1144. The

Ninth Circuit Court of Appeals found that, when

applied to a county island, the phrase “within the

corporate limits” was ambiguous. Id. at 1147.

Although the Ninth Circuit did not grant the

Secretary’s interpretation Chevron deference in Gila

River, it nonetheless indicated deference to the

Secretary’s interpretation would be appropriate.5

5 The

Ninth Circuit remanded the case for

further interpretation by the Secretary because,

though the Secretary’s interpretation was

reasonable, “the Secretary’s interpretation warrants

no deference because it rests on a mistaken

conclusion that the language has a plain meaning.”

Gila River, 729 F.3d at 1149 (citing Negusie v.

Holder, 555 U.S. 511, 518-19 (2009)).

15

The dissent in Gila River argued that the

statute was not ambiguous in the first place, because

the federalism clear statement rule applied. Gila

River, 729 F.3d at 1161 (Smith, J., dissenting).

Thus, even if the Gila Bend Act is, as

the majority concludes, “ambiguous”

and “less than crystal clear,” this only

means that Congress never actually

considered the issue of creating an

Indian

reservation

on

an

unincorporated island within the

geographic limits of a city. While

statutory ambiguity in other contexts

generally requires courts to defer to an

agency's interpretation, the federalism

clear statement rule prevents Congress

from punting this highly charged

political decision to the less politically

accountable agency.

Id. at 1164. The majority in Gila River, however,

dismissed these concerns, holding that the clear

statement rule did not apply because the taking of

land into trust “does not raise a question of federal

encroachment on state powers.” Id. at 1152.

Neither the outcome of Gila River nor the

reasoning in that case are before the Court today,

but the difference in characterization between the

majority and the dissent illustrate the perils of

relying on canons of construction that exist outside

16

the Chevron framework. First, there is evident lack

of clarity as to who should apply these canons—is it

the job of the agency in making the reasonable

interpretation, or the court’s job when determining

if there is ambiguity? Despite Chevron’s mandate

that courts should apply canons of construction to

determine if there is an ambiguity, confusion

remains. 467 U.S. at 843, n.9 (“If a court, employing

traditional tools of statutory construction,

ascertains that Congress had an intention on the

precise question at issue, that intention is the law

and must be given effect.”); see also Kisor, 139 S.Ct.

at 2415 (stating with respect to ambiguous agency

regulations that “before concluding that a rule is

genuinely ambiguous, a court must exhaust all the

traditional tools of construction”) (quotations

omitted).

While the issue of who should apply certain

canons can be resolved, Gila River also illustrates a

more fundamental problem with the application of

the federalism canon to Chevron decisions—what

“triggers” the application of these doctrines? The

majority in Gila River noted that “the Gila Bend Act

does not implicate an ‘existing balance of federal and

state powers,’” because there was no fundamental

alteration of federal versus state power. 729 F.3d at

1152. This is a plausible understanding. The Gila

Bend Act did not, on a nationwide basis, alter the

relationship between the Federal Government and

the States in the abstract. Cf. SWANCC, 531 U.S. at

174 (overturning agency interpretation that “would

17

result in significant impingement of the States’

traditional and primary power over land and water

use” on a nationwide basis). Certainly, however, the

interpretation at issue in Gila River significantly

altered the relationship between the State of

Arizona and the Federal Government, to say nothing

of the City of Glendale.

This is the fundamental problem with

Chevron, at least as it relates to federalism concerns.

Nearly every federal regulatory action has a

significant impact on a state’s relationship with the

Federal Government. Even where agency action

does not result in a systemic and fundamental shift

in the balance of power between the States and the

Federal Government, the gradual accumulation of

the actions has an enormous impact in the

aggregate. Allowing the small intrusions on State

sovereignty to escape meaningful judicial review

may work when each decision is viewed in isolation,

but the long-term effect is no less detrimental.

“Congress, we have held, does not alter the

fundamental details of a regulatory scheme in vague

terms or ancillary provisions—it does not, one might

say, hide elephants in mouseholes.” Whitman v. Am.

Trucking Assocs., Inc., 531 U.S. 457, 468 (2001). If

mice are continually added to a scale, however, they

will eventually outweigh the elephant. The same

principle applies to the division of regulatory power

between the States and the Federal Government.

Even if the federalism canon, the major questions

doctrine, or other rules of construction prevent

18

sudden, major changes in the distribution of power,

as long as Chevron continues to allow the gradual

accumulation of regulatory power at the expense of

the States, the eventual result is no less harmful.

B. Affording Chevron Deference To Agency

Interpretations

Undermines

States'

Ability to Implement And Administer

Policies Through Their Powers Even

Where There Is Not Direct Preemption

That Implicates The Federalism Clear

Statement Rule.

When federal agencies promulgate new

regulations, they do not do so in a vacuum. Even

when regulations have their intended effect, there

are other consequences. More often than not, these

consequences are not felt by the Federal

Government, but rather must be addressed by

States–if remedies are even available. Federal

regulation also undermines States' own democratic

accountability measures. West Virginia, 142 S.Ct. at

2618 (Gorsuch, J., concurring) (increasing federal

agency control over areas of traditional state concern

"would be a particularly ironic outcome, given that

so many States have robust non-delegation doctrines

designed to ensure democratic accountability in

their state lawmaking process.") (citation omitted).

States are forced to bear not only the consequences

of federal regulation, but also the democratic

backlash against such regulations, due to the lack of

direct accountability of federal agencies. See Alaska

Dept. of Environmental Conservation vs. E.P.A., 540

19

U.S. 461, 518 (2004) (Kennedy, J., dissenting)

(noting when federal agencies reserve “the authority

to make final judgments under the guise of

surveillance and oversight” it undermines

“Congress’ goal of allowing state governments to be

accountable to the democratic process”).

Two such examples can be found in the

increasing regulation of physicians by the Centers

for Medicare and Medicaid Services (CMS).

Physicians are professionals that are overseen and

licensed at the state level. See Gonzales v. Oregon,

546 U.S. 243, 271 (2006) ("The structure and

operation of the [Controlled Substances Act (CSA)]

presume and rely upon a functional medical

profession regulated under the States' police

powers.")

(emphasis

added).

The

Federal

Government, however, maintains immense power

over the medical profession through CMS’s

supervision of Medicare and Medicaid programs. See

Sebelius, 567 U.S. at 581 ("Medicaid spending

accounts for over 20 percent of the average State’s

total budget, with federal funds covering 50 to 83

percent of those costs."). Even when changes to CMS

reimbursement policies do not categorically exceed

Congressional power, as they did in Sebelius, CMS

still exercises significant power over hospitals and

physicians through its power to control

reimbursements. CMS can effectively alter the

standard of care for physicians–notionally controlled

by state licensing boards–by setting standards for

the reimbursement through federal funds. These

20

efforts, however well-intentioned they might be,

have had significant and deleterious effects on

patient outcomes.

In 2007, for instance, CMS issued regulations

that conditioned federal reimbursement for organ

transplants on achieving aggregate post-transplant

graft and survival rates. Solid Transplant Programs

- Outcome Thresholds - Revised Guidelines, Centers

for Medicare and Medicaid Services, at 2 (May 13,

2016); see also 42 C.F.R. § 482.80(c). Though framed

as a standard for reimbursement, the purpose of the

regulation was to set a national standard for clinical

decisions about organ transplants. The effect,

however, was that physicians and hospitals–

concerned about losing critical federal funding–

declined to perform riskier transplants, harming the

patients that needed those procedures the most.

Following the CMS regulation, the number of

transplant candidates removed from waiting lists

increased by 86 percent, and the number of

potentially viable transplant organs that were

discarded increased by more than 20 percent. Casey

Ross, Hospitals Are Throwing Out Organs And

Denying Transplants To Meet Federal Standards,

PBS

(Aug.

13,

2016)

available

at

https://www.pbs.org/newshour/health/hospitalsthrowing-organs-denying-transplants-meet-federalstandards. In 2016, CMS revised its policies to allow

for riskier transplants. Solid Transplant Programs,

supra, at 3. In expanding its regulatory purview to

effectively address substantive clinical decisions,

21

rather than just standards for reimbursement, CMS

inadvertently made it more difficult for patients to

get the care they needed.

In another example, CMS instituted a “pay for

performance” model that tied reimbursements in

part to patient satisfaction surveys. One study found

that of physicians surveyed, “about half of [the]

clinicians reported ordering an inappropriate test

and prescribing inappropriate antibiotic or opioid

pain medication as a result of patient satisfaction

scores.” Aleksandra Zgierska, et al. Impact Of

Patient Satisfaction Ratings On Physicians And

Clinical Care. Patient Preference and Adherence

vol. 8 437, 442 (Apr. 3, 2014); see also Ronald Hirsch,

The Opioid Epidemic: It’s Time to Place Blame

Where It Belongs, Mo. Med. vol. 114:2, 82-90 (2017)

(“Physicians therefore feel pressured to prescribe

opioids when patients request/demand them,” as a

result of patient satisfaction metrics, "despite their

reservations

about

the

need

for

opioid

medications.").

These examples are not the grand alterations

to the federal system that were at issue in Sebelius,

West Virginia, and other cases, but the effect of these

intrusions were no less harmful to the individuals

affected. They are indicative of the broader problem

with federal over-regulation. CMS made regulatory

decisions under the guise of its reimbursement

powers that veered into the realm of substantive

decisions about patient care—decisions which are

22

normally handled by state licensing systems. These

decisions had unintended and devastating

consequences. Further, these types of regulations

curtail states’ ability to exercise their presumed

independence of state sovereignty guaranteed by the

Tenth Amendment, notwithstanding the lack of

direct preemption. In the organ transplant example,

no matter what state laws or policies a state adopted

to encourage these life-saving procedures, the threat

of losing federal reimbursement funding would

effectively neuter those policies. What physician or

hospital would perform a procedure that risks

jeopardizing a significant portion of a hospital’s

operating revenue? So too with opioid prescriptions

and patient satisfaction surveys. If a state medical

board brought disciplinary procedures against a

physician it believed over-prescribed opioids, how

different is the characterization of the physician’s

actions if he followed guidelines developed in

conjunction with hospital administrators to meet

federal benchmarks for satisfaction?

It is tempting to view regulatory power over a

given subject as dividing a pie. The Federal

Government, whether through statute or agency

interpretation, can take a small piece or a much

larger piece, but it is ultimately a question of

quantity. States, however, as result of their reserved

police

power,

are

tasked

with

crafting

comprehensive regulatory systems that work

together to ensure the health, safety, and well-being

of the State’s citizenry. Rather than taking a slice

23

out of a pie, a better comparison is taking the

ingredients before the pie is made—an apple pie

without apples is no longer an apple pie.

Constraining which ingredients States may use

when crafting their own regulatory policy not only

limits the “quantity” of State policy, it limits the

quality of what States can create.

This is, of course, a vast oversimplification,

but as federal mandates further constrain available

policy choices, it limits the options available to the

States to address critical needs; in other words, it

constrains the potential creativity of States.

Creativity leads to a lack of uniformity, but that is a

feature, not a flaw, of our federal system which

allows States to maintain individual identities in

line with the views of their citizens.

The difficulty of legislating at the

federal level aimed as well to preserve

room for lawmaking by governments

more local and more accountable than

a distant federal authority, and in this

way allow States to serve as

laboratories for novel social and

economic experiments.

West Virginia, 142 S.Ct. at 2618 (Gorsuch, J.

concurring). This interference affects both the

implementation of current policies and the

development of new policies.

24

The court in Gila River, though it dismissed

these concerns, articulated the problem that States

face when confronted with federal regulatory action:

Virtually any federal legislation could

be construed to have at least minor,

derivative implications for traditional

state functions. For example, does

federal legislation appropriating funds

for building and maintaining interstate

highways require a plain statement of

congressional intent to interfere with

the traditional state functions of zoning

and land use that the dissent flags in

this case?

729 F.3d at 1152. Undoubtedly, there are such

derivative implications. And, when viewed in

isolation, they are minor. But as the dissent in Gila

River noted, while these “derivative implications”

may be minor in the Federal Government’s

perspective, they can be major when viewed from the

States’ perspective. 729 F.3d at 1169 (noting

Secretary’s interpretation would undermine zoning

considerations and “implicate major budgetary

decisions” for infrastructure and public safety

spending); see also Sebelius, 567 U.S. at 581-82

(noting loss of Medicaid funding, from States’

perspective, would be “economic dragooning” and

would undermine States’ “intricate statutory and

administrative regimes [developed] over the course

of many decades to implement their objectives under

25

existing Medicaid”). Every time federal regulatory

action constrains future State action, States’

functional abilities to exercise their traditional,

reserved powers are constrained.

Chevron is not the only culprit in this trend,

nor is overturning Chevron the only solution. As the

Court has addressed in West Virginia, Sebelius,

Gregory, and other cases, there are other

mechanisms that can help achieve the same result.

Chevron is, however, a prime culprit. Rather than

continue to gradually trim Chevron with the major

questions doctrine, the federalism clear statement

rule, and other doctrines, the Court should take this

opportunity to overturn Chevron once and for all.

C. Overturning Chevron Would Not Leave

Courts Powerless To Defer To Agency

Interpretations;

It

Would

Merely

Require

That Congress

Explicitly

Identify

The

Narrow,

Technical

Questions It Intends To Defer To

Agencies For Resolution.

If Chevron were to disappear, what would

take its place? States administrative agencies have

long operated without the robust administrative

deference schemes that federal agencies enjoy, yet

States have effective and robust regulatory schemes.

Chevron is not a critical component of an effective

regulatory scheme.

26

The short answer is that nothing must take

Chevron’s place. Any skepticism of this truth is

merely skepticism that Congress can perform its

constitutional duties without relying on the flawed

crutch that Chevron provides. Presupposing

congressional intent merely provides plausible

deniability for Congress to take action that is not

attributed to it, or worse, an avenue for the

Executive Branch to take action that Congress

would not approve. Deference to agency

interpretations is appropriate when Congress

clearly articulates an intent to defer such decisions

to agencies. The Court set forth this extra step in

Kisor in the context of deference to agency

interpretations of their own rules. “[T]he agency’s

interpretation must in some way implicate its

substantive expertise.” Kisor, 139 S.Ct. at 2417.

“When the agency has no comparative expertise in

resolving a regulatory ambiguity, Congress

presumably would not grant it that authority.” Id.

The same thinking is clear in the Court’s recent

decisions that eat at the edges of Chevron.

Capping carbon dioxide emissions at a

level that will force a nationwide

transition away from the use of coal to

generate electricity may be a sensible

“solution to the crisis of the day.” New

York v. United States, 505 U.S. 144,

187, 112 S.Ct. 2408, 120 L.Ed.2d 120

(1992). But it is not plausible that

Congress gave EPA the authority to

27

adopt on its own such a regulatory

scheme in Section 111(d). A decision of

such magnitude and consequence rests

with Congress itself, or an agency

acting pursuant to a clear delegation

from that representative body.

West Virginia, 142 S.Ct. at 2616.

Where

an

administrative

interpretation of a statute invokes the

outer limits of Congress' power, we

expect a clear indication that Congress

intended that result. This requirement

stems from our prudential desire not to

needlessly reach constitutional issues

and our assumption that Congress does

not casually authorize administrative

agencies to interpret a statute to push

the limit of congressional authority.

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Engineers, 531 U.S. 159, 172–73 (2001)

(SWANNC) (citations omitted); Gonzales, 546 U.S.

at 262 ("It would be anomalous for Congress to have

so painstakingly described the Attorney General’s

limited authority to deregister a single physician or

schedule a single drug, but to have given him, just

by implication, authority to declare an entire class of

activity outside the course of professional practice,

and therefore a criminal violation of the CSA.")

(citations and quotations omitted); Gregory 501 U.S.

28

at 464 ("’[T]o give the state-displacing weight of

federal law to mere congressional ambiguity would

evade the very procedure for lawmaking on which

Garcia relied to protect states' interests.’") (quoting

L. Tribe, American Constitutional Law § 6–25, p. 480

(2d ed. 1988)). All these decisions require, in some

circumstances, that Congress be clearer to delegate

the power of binding interpretative authority to

executive agencies. The same principle should be

applied to deference. Courts should only be required

to defer to agency interpretations where Congress

has explicitly called for such deference.

Agencies have no inherent powers; they

cannot act without Congress delegating power to

them. See Louisiana Public Service Commission v.

FCC, 476 U.S. 355, 374 (1986) (“an agency literally

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

confers power upon it”); Motion Picture Association

of America, Inc. v. FCC, 309 F.3d 796, 801 (D.C. Cir.

2002) (“An agency may not promulgate even

reasonable regulations that claim a force of law

without delegated authority from Congress.”);

Railway Labor Executives’ Association v. National

Mediation Board, 29 F.3d 655, 670 (D.C. Cir.),

amended, 38 F.3d 1224 (D.C. Cir. 1994) (“Agencies

owe their capacity to act to the delegation of

authority, either express or implied, from the

legislature.”); Bowen v. Georgetown University

Hospital, 488 U.S. 204, 208 (1988) (“It is axiomatic

that an administrative agency’s power to

promulgate legislative regulations is limited to the

29

authority delegated by Congress.”). If Congress

wants to delegate gap filling authority to agencies, it

can do so explicitly. Implicit delegation, however,

runs contrary to the very nature of administrative

law.

Chevron is, fundamentally, an attempt to

ensure agencies can bring their subject-matter

expertise to bear on problems without the concern of

undue interference from judges.

Judges are not experts in the field, and

are not part of either political branch of

the Government. Courts must, in some

cases, reconcile competing political

interests, but not on the basis of the

judges' personal policy preferences. In

contrast, an agency to which Congress

has

delegated

policy-making

responsibilities may, within the limits

of that delegation, properly rely upon

the incumbent administration’s views

of wise policy to inform its judgments.

While agencies are not directly

accountable to the people, the Chief

Executive is, and it is entirely

appropriate for this political branch of

the Government to make such policy

choices—resolving

the

competing

interests which Congress itself either

inadvertently did not resolve, or

intentionally left to be resolved by the

30

agency

charged

with

the

administration of the statute in light of

everyday realities.

Chevron, 467 U.S. at 865-66. This proposition, at its

most basic level, makes sense. Agencies often have

unique, technical knowledge and experience that

make them far better suited to address certain

highly technical issues.

It is because of those features that

Congress, when first enacting a

statute, assigns rulemaking power to

an agency and thus authorizes it to fill

out the statutory scheme. And so too,

when new issues demanding new policy

calls come up within that scheme,

Congress presumably wants the same

agency, rather than any court, to take

the laboring oar.

Kisor v. Wilkie, 139 S.Ct. 2400, 2413 (2019). As

appealing as this idea might be, however, it misses

a fundamental step in the process.

Chevron involved a particularly technical

question: how to define a pollution source in the

context of industrial facilities that may have

multiple pollution-emitting devices. Chevron, 467

U.S. at 840. In that context and given the EPA’s role

in implementing the Clean Air Act, few would

reasonably argue that some level of deference to the

31

EPA’s technical expertise would be warranted.

Chevron has since been applied, however, to a wide

range of issues, many of which do not involve

technical questions at all. See, e.g., Gila River, 739

F.3d at 1144. In the case presently before the Court,

the NMSF asks for deference on its interpretation of

whether an industry-funded monitoring program is

permissible. Neither question is technical, nor does

either present a question of interpretation that an

agency—as opposed to a court—would be

particularly better suited to answer. Such

interpretations should not receive Chevron

deference, or any deference for that matter.

CONCLUSION

As federal agencies continue to promulgate

regulations that impact the everyday lives of

Americans, the role of the States is diminished.

Even where federal action does not directly preempt

state policies, federal actions constrain how states

may exercise their reserved powers under the Tenth

Amendment. If Congress wants to delegate

powers—individually or in the aggregate—it should

make its intent clear. A clear statement of intent

may raise a question of what Congress can do, but it

avoids a dispute over what Congress meant to do.

The question of what Congress can do looms large on

the horizon. But, by overturning Chevron in this

case, the Court can ensure that the critical debate

over the true nature of our federal system is brought

to the forefront.

32

Respectfully Submitted,

DAVID B. DOVE

Counsel of Record

Executive Counsel to Governor

Brian P. Kemp

SAMUEL L. HATCHER

201 State Capitol

Atlanta, GA 30334

(706) 296-9360

david.dove@georgia.gov

Counsel for Amicus Curiae

Governor Brian P. Kemp

July 24, 2023

33