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

Supreme Court briefJul 24, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-451

IN THE

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, INC., ET AL.,

Petitioners,

GINA RAIMONDO, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE THE

COMPETITIVE ENTERPRISE INSTITUTE

IN SUPPORT OF PETITIONERS

Devin Watkins

Counsel of Record

Dan Greenberg

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

devin.watkins@cei.org

July 24, 2023

Attorneys for Amicus Curiae

QUESTION PRESENTED

Whether the Court should overrule Chevron or

at least 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.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS.............................................. ii

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

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 2

I. CHEVRON IS NOT ORIGINALIST ...................... 2

II. CHEVRON UNCONSTITUTIONALLY PUTS A

THUMB ON THE SCALE OF JUSTICE IN

FAVOR OF ONE PARTY ....................................... 4

III.CHEVRON UNSETTLES THE RULE OF LAW

BY REDUCING STABILITY IN THE LAW ......... 7

IV. IN THIS CASE, CHEVRON ALLOWED THE

EXECUTIVE TO IMPROPERLY SEIZE THE

POWER OF THE PURSE. ................................... 13

CONCLUSION .......................................................... 18

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Arnett v. Kennedy, 416 U.S. 134, 197 (1974) .............. 4

Bell Atl. Tel. Companies v. F.C.C.,

24 F.3d 1441 (D.C. Cir. 1994) ................................ 16

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

467 U.S. 837 (1984) .............................................. 3, 5

Louisiana Pub. Serv. Comm’n v. F.C.C.,

476 U.S. 355 (1986) ................................................ 14

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) .... 5

Nat. Res. Def. Council, Inc. v. Callaway,

392 F. Supp. 685 (D.D.C. 1975) ............................... 9

Nicol v. Ames, 173 U.S. 509 (1899) ........................... 17

Rapanos v. United States, 547 U.S. 715 (2006) ........ 10

Sackett v. EPA, 143 S. Ct. 1322 (2023) ......... 11, 12, 13

Sir Edward Coke in Bonham’s Case, 8 Co. 114a, 118a,

77 Eng. Rep. 646, 652 (1610) ................................... 4

Statutes

16 U.S.C. § 1853(a)(1)(A) ........................................... 13

5 U.S.C. § 706............................................................... 3

P.L. 92-500 § 502(7), 86 Stat. 816, 886

(codified in 33 U.S.C. § 1362(7)) .............................. 8

Rules

38 Fed. Reg. 13528, 13,529 (1973)

(codified at 40 C.F.R. § 125.1(p) (1974)) ................. 8

39 Fed. Reg. 12,115, 12,119 (April 3, 1974)

(codified in 33 C.F.R. § 209.120(d)(1) (1974)) .......... 8

Advanced Notice of Proposed Rulemaking on the

Clean Water Regulatory Definitions of “Waters of

the United States,” 68 Fed. Reg. 1,991, 1,996

(January 15, 2003) ................................................. 10

Final Rule for Regulatory Programs of the Corps of

Engineers, 51 Fed Reg. 41,206, 41,250 (1986)

(codified in 33 CFR § 323.3 (1987)).......................... 9

Final Rule for Regulatory Programs of the Corps of

Engineers, 51 Fed. Reg. 41,206, 41,217 (Nov. 13,

1986) ......................................................................... 9

Final Rule, Clean Water Rule, Definition of “Waters

of the United States,”

80 Fed. Reg. 37,054, 37,057 (June 29, 2015) ......... 11

Final Rule, Consolidated Permit Regulations, 45 Fed.

Reg. 33,290, 33,424 (May 19, 1980)

(codified in 40 C.F.R. § 122.3 (1981))....................... 9

Final Rule: Clean Water Act Section 404 Program

Definitions and Permit Exemptions,

53 Fed. Reg. 20,764, 20,765 (June 6, 1988) ............. 9

Notice of Proposed Rulemaking, The Enhancement

and Standardization of Climate-Related

Disclosures for Investors, 87 FR 21334 (April 11,

2022) ....................................................................... 16

Regulatory Programs of the Corps of Engineers, 42

Fed. Reg. 37,122 (July 19, 1977)

(codified 33 C.F.R. §323.2(a) (1978)) ....................... 9

Revised Definition of “Waters of the United States,”

88 Fed. Reg. 3004 (January 18, 2023) ................... 11

INTEREST OF AMICI CURIAE 1

The Competitive Enterprise Institute (“CEI”) is a

nonprofit 501(c)(3) organization incorporated and

headquartered in Washington, D.C., dedicated to

promoting the principles of free markets and limited

government. Since its founding in 1984, CEI has

focused on raising public understanding of the

problems of overregulation. It has done so through

policy analysis, commentary, and litigation.

This case concerns amicus because Chevron rejects

originalism, puts a thumb on the scale of justice, and

unsettles the law in favor of the government.

Additionally, agencies’ use of Chevron to bypass

Congress’s power of the purse emphasizes the

constitutional problems of Chevron. It threatens

constitutionally limited government by merging

legislative and executive powers. Amicus agrees with

James Madison that allowing such a mechanism

would “justly be pronounced the very definition of

tyranny.” Federalist No. 47.

SUMMARY OF ARGUMENT

Chevron did not come from Congress. In fact, it is

directly contrary to Congress’s express statutory

command that courts “shall decide all relevant

questions of law, interpret constitutional and

statutory provisions.” 5 U.S.C. § 706 (emphasis added).

Chevron encourages agencies—not neutral and

impartial judges—to interpret the law, and sometimes

those agencies are afflicted with institutional self1 Rule 37 Statement: No party’s counsel authored any part of this

brief; no person other than amici, their members, or their counsel

funded its preparation or submission.

interest. A judge with a similar pecuniary interest

would not be allowed to issue a binding interpretation

of law. The notion that a party can neutrally and

impartially serve as a judge in its own case is

inherently implausible.

Chevron encourages instability in the law. Chevron

allows changes every few years without the

involvement of Congress and thereby increases

uncertainty in the path of the law. This encourages

agencies to generate rules of minimal clarity that

judicial decisions will struggle to illuminate. This

maximizes deference to agencies and minimizes legal

certainty.

Chevron undermines the separation of powers by

allowing the executive to seize powers that Congress

never authorized. This case presents a perfect

example: here, the executive branch seized the power

of the purse. The government claims that when it

encounters statutory silence, it can force businesses to

fund private law enforcement officers. If Chevron gives

the executive such unconstitutional powers based on

statutory silence, it should end.

Chevron should be overturned. All citizens are

entitled to a neutral system of justice—in which courts

are free of institutional biases and the best comes out

on top. That system’s interpretations should control

unless and until Congress acts.

ARGUMENT

I. CHEVRON IS NOT ORIGINALIST

Our Constitutional structure is founded on the

principle expressed by John Dickinson at the

Constitutional Convention that “the Judges must

interpret the Laws[;] they ought not to be legislator.”

1 The Records of the Federal Convention of 1787, 109

(Max Farrand ed., 1911). However, the doctrine in

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

467 U.S. 837 (1984) was created entirely by judicial

actions that appear more legislative than interpretive.

Chevron is vulnerable to multiple originalist

criticisms: not only is it a judicially created doctrine,

but it is also directly contrary to Congress’s express

statutory command. Specifically, the Administrative

Procedures Act requires that “the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency

action.” 5 U.S.C. § 706 (emphasis added). The word

“all” logically implies that courts are to interpret

statutes even after agencies have provided their

interpretation.

In issuing this statute, the Senate Committee on the

Judiciary explained that the statute “provides that

questions of law are for courts rather than agencies to

decide in the last analysis.” S. Rep. No. 752, 79th

Cong., 1st Sess. 28 (1945), reprinted in Administrative

Procedure Act: Legislative History 185, 214 (1946),

https://www.justice.gov/sites/default/files/jmd/legacy/2

014/03/20/senaterept-752-1945.pdf.

That

same

committee later explained “that ‘interpretative’

rules—as merely interpretations of statutory

provisions—are subject to plenary judicial review,

whereas ‘substantive’ rules involve a maximum of

administrative discretion.” S. Comm. on the Judiciary,

79th Cong. (Comm. Print 1945), reprinted in

Administrative Procedure Act: Legislative History, S.

Doc.

248,

(1944

–

1946),

https://coast.noaa.gov/data/Documents/OceanLawSea

rch/Senate%20Document%20No.%2079-248.pdf. Such

plenary judicial review, as envisioned by Congress,

rejects any deference given to the agency’s views of the

meaning of statutes.

It is the courts, and only the courts, that the

Constitution has designated to interpret statutes.

Agency expertise and rulemaking are important, but

only as they relate to factual questions; such factual

questions are not within a court’s expertise. Agencies

may determine, for instance, how many animals of a

species exist, but a judge must determine the legal

implications of those facts regardless of the agency’s

views.

The agency must do its best to interpret the statute

before any case is brought before a court. In doing so,

the agency can issue interpretive rules that inform the

public what the agency believes the law to be. We can

hope that the agency and the public will agree on what

the statute means, thus eliminating any need for court

involvement. But where there is a dispute between an

agency and a citizen, courts must resolve that dispute

impartially without privileging either.

II. CHEVRON UNCONSTITUTIONALLY PUTS A

THUMB ON THE SCALE OF JUSTICE IN

FAVOR OF ONE PARTY

The foundation of our Anglo-American justice

system is the “first principle: ‘[N]o man shall be a judge

in his own cause.’” Arnett v. Kennedy, 416 U.S. 134, 197

(1974) (Kennedy, J., concurring) (citing Sir Edward

Coke in Bonham’s Case, 8 Co. 114a, 118a, 77 Eng. Rep.

646, 652 (1610)). However, Chevron violates that

foundational principle.

In a dispute between an agency and a citizen over

an ambiguous statutory provision, Chevron requires

that agency interpretations be “given controlling

weight unless they are arbitrary, capricious, or

manifestly contrary to the statute.” Chevron, 467 U.S.

at 844. It prohibits a court from “substitut[ing] its own

construction of a statutory provision for a reasonable

interpretation made by the administrator of an

agency.” Id.

There is necessarily more than one reasonable

interpretation of any ambiguous provision; that is

what makes it ambiguous. The Due Process Clause,

U.S. Const. amend. V, requires an impartial and

disinterested court to make such a decision if that

decision is to be fair to all parties. Marshall v. Jerrico,

Inc., 446 U.S. 238, 242 (1980).

Under our Constitution, Article III judges are the

impartial and disinterested third party that makes

such determinations. “For the law will not suppose a

possibility of bias or favour in a judge, who is already

sworn to administer impartial justice, and whose

authority greatly depends upon that presumption and

idea.” 3 W. Blackstone, Commentaries on the Laws of

England, 361 (1768).

Agency personnel are not typically neutral or

unbiased. The executive is elected to execute the law

in a given way. In other words, executives are chosen

expressly because of their departures from political

neutrality. This encourages the government to act in

accordance with the will of the people. But when the

President favors the perspective of the voters who

chose him (or her), it should come as no surprise.

Furthermore, the agency is often a party to the case,

actively arguing in favor of its interpretation of the

statute before the judge. Such behavior, inter alia,

demonstrates a bias in favor of its own interpretation

rather than that of the citizen: this is yet another

reason why courts should not give deference to the

agency. Any such deference impairs the court’s own

impartiality.

The executive is also biased in favor of its own

power. The law often reflects a delicate balance

between the powers of the United States that Congress

chooses to exercise and those that are “reserved to the

States respectively, or to the people.” See U.S. Const.

amend. X. When a court is presented with a statute

that is ambiguous as to whether Congress has chosen

to exercise a given power, the court must typically

decide whether the executive was assigned that power

or whether it was left to the states. But when courts

defer to executive rulemaking, it is the executive that

must determine the locus of that power. In that

circumstance, the decision may be tainted by

institutional self-interest.

A judge must recuse from interpreting a statute if

he or she has even a dollar at stake in the litigation.

An agency has no such constraint—even if an action

before it might jeopardize millions or billions of dollars

of its own budget. Whether an agency has an

institutional bias or even a pecuniary bias in such a

case, Chevron allows that agency to provide a binding

interpretation of the law. In contrast, a judge with a

pecuniary interest in the action would be barred from

any involvement in it.

To ensure a fair and unbiased interpretation of the

law, agency deference should be rolled back and

Chevron should be overturned.

III. CHEVRON UNSETTLES THE RULE OF LAW

BY REDUCING STABILITY IN THE LAW

When a court interprets a statute, stare decisis

ensures that such interpretations are not changed

easily. “Stare decisis . . . serves many valuable ends.”

Dobbs v. Jackson Women's Health Org., 142 S. Ct.

2228, 2261–62 (2022). “It protects the interests of

those who have taken action in reliance on a past

decision.” Id. at 2262. “It reduces incentives for

challenging settled precedents, saving parties and

courts the expense of endless relitigation.” Id. “It

fosters ‘evenhanded’ decisionmaking by requiring that

like cases be decided in a like manner.” Id. “It

contributes to the actual and perceived integrity of the

judicial process.” Id. “And it restrains judicial hubris

and reminds us to respect the judgment of those who

have grappled with important questions in the past.”

Id.

Chevron, when it applies, eliminates all the benefits

of stare decisis. Instead, it allows, and sometimes

encourages, instability in the law.

With Chevron, the meaning of statutes can change

dramatically every four to eight years, when a new

president is elected. This change occurs even when

such agency interpretation contradicts existing court

interpretation. National Cable & Telecommunications

Association v. Brand X Internet Services, 545 U.S. 967

(2005). The author of Brand X, Justice Thomas, later

recognized the problems such deference caused:

Regrettably, Brand X has taken this Court to the

precipice of administrative absolutism. Under its

rule of deference, agencies are free to invent new

(purported) interpretations of statutes and then

require courts to reject their own prior

interpretations. Brand X may well follow from

Chevron, but in so doing, it poignantly lays bare

the flaws of our entire executive-deference

jurisprudence.

Baldwin, et ux. v. United States, 140 S. Ct. 690, 695

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

certiorari).

Consider, for instance, the decades of conflicting

regulations over what the “waters of the United

States” means in the Clean Water Act. It started with

the Federal Water Pollution Control Act Amendments

of 1972, which used the term “navigable waters” and

defined it in this way: “The term ‘navigable waters’

means the waters of the United States, including the

territorial seas.” P.L. 92-500 § 502(7), 86 Stat. 816, 886

(codified in 33 U.S.C. § 1362(7)). The following is the

result of Chevron:

•

EPA defined “navigable waters” in May 1973. 38

Fed. Reg. 13528, 13,529 (1973) (codified at 40

C.F.R. § 125.1(p) (1974)).

•

The Army Corps of Engineers defined the same

statutory term in an entirely different way. 39

Fed. Reg. 12,115, 12,119 (April 3, 1974) (codified

in 33 C.F.R. § 209.120(d)(1) (1974)).

•

The D.C. District Court ruled that the Corps

definition was too narrow, but didn’t specify

what the actual meaning of the statutory term

was. Nat. Res. Def. Council, Inc. v. Callaway,

392 F. Supp. 685 (D.D.C. 1975).

•

The Corps expanded its rule. Regulatory

Programs of the Corps of Engineers, 42 Fed.

Reg. 37,122 (July 19, 1977) (codified 33 C.F.R.

§323.2(a) (1978)).

•

In 1977, EPA and the Corps disagreed

substantially over the proper statutory

definition of “navigable waters” and which

agency could define the term.

•

EPA issued regulations redefining “navigable

waters” and when a permit was required. Final

Rule, Consolidated Permit Regulations, 45 Fed.

Reg. 33,290, 33,424 (May 19, 1980) (codified in

40 C.F.R. § 122.3 (1981)).

•

The Corps adopted EPA’s definition in 1986,

marking the first time the two agencies agreed.

Final Rule for Regulatory Programs of the

Corps of Engineers, 51 Fed Reg. 41,206, 41,250

(1986) (codified in 33 CFR § 323.3 (1987)).

•

In 1986, EPA and the Corps expanded the scope

of the interpretation to include all waters that

were or may have been used by migratory birds.

See Final Rule for Regulatory Programs of the

Corps of Engineers, 51 Fed. Reg. 41,206, 41,217

(Nov. 13, 1986); Final Rule: Clean Water Act

Section 404 Program Definitions and Permit

Exemptions, 53 Fed. Reg. 20,764, 20,765 (June

6, 1988). The Corps also issued the first

wetlands delineation manual in 1987.

•

In 1989, the EPA and Corps issued a revised

federal wetlands delineation manual which,

without a rulemaking, expanded the scope of

covered lands.

•

In 2000, the Corps issued guidance in response

to the court holding in United States v. Wilson,

133 F.3d 251 (4th Cir. 1997) that actual rather

than potential connection to interstate or

foreign commerce was required. The Corps

limited the application of this doctrine to the

Fourth Circuit; it also expanded the definition

of “navigable waters” to include intermittent

and ephemeral streams of water.

•

In 2001, this Court rejected the Corps definition

in Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531 U.S. 159,

162 (2001), as applied to isolated water that had

become a habitat for migratory birds.

•

In 2003, EPA and the Corps started to redefine

the term yet again. Advanced Notice of

Proposed Rulemaking on the Clean Water

Regulatory Definitions of “Waters of the United

States,” 68 Fed. Reg. 1,991, 1,996 (January 15,

2003).

•

Before they could finish, this Court heard the

case of Rapanos v. United States, 547 U.S. 715

(2006). While many justices agreed the Corps

definition was flawed, no majority of this Court

agreed as to the proper interpretation. Justice

Scalia, joined by four justices, proposed one

interpretation, and Justice Kennedy proposed

another.

•

EPA and the Corps adopted the interpretation

that if either test proposed was met then they

would assert jurisdiction. Mem. from Envtl.

Prot. Agency & Dep’t of the Army on Clean

Water Act Jurisdiction Following the U.S.

Supreme Court’s Decision in Rapanos v. United

States & Carabell v. United States (June 5,

2007),

https://www.epa.gov/sites/production/files/2016

-04/documents/rapanosguidance6507.pdf.

•

In 2015, EPA and the Corps issued yet another

definition. Final Rule, Clean Water Rule,

Definition of “Waters of the United States,” 80

Fed. Reg. 37,054, 37,057 (June 29, 2015).

•

Just earlier this year, in 2023, EPA and the

Corps revised the rule again in Revised

Definition of “Waters of the United States,” 88

Fed. Reg. 3004 (January 18, 2023).

•

Within months, this Court invalidated critical

aspects of that rule in Sackett v. EPA, 143 S. Ct.

1322 (2023), and adopted an interpretation

similar to Justice Scalia’s in Rapanos.

These events were not an unusual “one-off,” but a

direct result of Chevron. Similar regulatory

uncertainty is likely to recur in other high-profile

regulatory contexts. Each time a President was elected

from a new party during this era, they attempted to

remake the last administration’s definition of the

“waters of the United States.” The same dynamics will

recur with any high-profile regulation, causing the law

to swing wildly back and forth every four or eight

years.

This Court has described the regulations issued by

EPA and the Corps as a “system of ‘vague’ rules that

depended on ‘locally developed practices.’” Sackett, 143

S. Ct. at 1333. This Chevron interpretation “gives rise

to serious vagueness concerns in light of the CWA’s

criminal penalties.” Id. at 1342. There is nothing

accidental about that; Chevron directly caused it.

EPA and the Corps knew that lowers courts would

be “[d]eferring to the agencies’ localized decisions,” due

to Chevron, so they drafted vague rules to ensure that

expansions happened on a case-by-case basis so that

“lower courts blessed an array of expansive

interpretations of the CWA’s reach.” See Id. at 1333.

Expanding agency authority was the goal; vague

regulations expanded on a case-by-case basis were the

means, all enabled by Chevron deference. This

vagueness is far from unprecedented, and it will

continue to occur as long as Chevron exists.

Don’t expect this Court’s decision in Sackett to end

the matter. EPA and the Corps are drafting revised

regulations right now to expand their authority,

despite the Court’s ruling in Sackett. No court decision

is safe as long as Chevron exists; there is always some

ambiguity that the agency will try to exploit under

Chevron to expand its power. Usually, this occurs on a

case-by-case basis, in which the Supreme Court does

not have time to monitor such minutiae. Nonetheless,

each such case slowly establishes greater agency

power.

Chevron regularly injects uncertainty into our legal

system. Chevron prevents people from planning their

lives and knowing what the law will allow or require

beyond the next presidential election. Chevron

discourages and unsettles planning and investment,

essentially because it makes such activities less

attractive and less worthwhile.

As this Court noted in Sackett, “once in court, the

landowner would face an uphill battle under the

deferential standards of review that the agencies

enjoy.” Id. at 1336. The battlefield should be levelled,

because the landowner, along with all other citizens, is

entitled to a neutral system of justice—in which courts

give neither side’s proposed interpretation of the law

greater weight and the best interpretation comes out

on top. Such correct interpretations should then

control until Congress decides to change the statute,

ensuring that everyone can know what the law is and

what it will be until Congress changes it.

IV. IN THIS CASE, CHEVRON ALLOWED THE

EXECUTIVE TO IMPROPERLY SEIZE THE

POWER OF THE PURSE.

In this case, Congress exercised its authority under

the Property Clause to write rules and regulations

governing the coastal seas owned by the Federal

Government. This allowed agencies in the Department

of Commerce to create fishery management plans

which are “necessary and appropriate for the

conservation and management of the fishery, to

prevent overfishing and rebuild overfished stocks, and

to protect, restore, and promote the long-term health

and stability of the fishery.” 16 U.S.C. § 1853(a)(1)(A).

The statutory phrase “necessary and appropriate”

has a parallel function to the constitutional phrase

“necessary and proper” that governs congressional

authority to assign incidental powers to executive

officials. But such assignment can only “carry into

execution” the power Congress exercised—in this case,

the power arising from the Property Clause.

Nonetheless, the agency did not confine itself to the

exercise of incidental powers that had been assigned

to it. On the contrary, the agency developed a fishery

management plan that required private fishermen to

pay for agency-mandated monitors. Creation of this

plan through rule was an attempt by the agency to

exercise the great (and non-incidental) power of

Congress to lay duties. U.S. Const. Art. I, § 8, clause 1.

The court below held that statutory “text makes

clear the Service may direct vessels to carry at-sea

monitors but leaves unanswered whether the Service

must pay for those monitors or may require industry

to bear the costs of at-sea monitoring mandated by a

fishery management plan.” Pet. App. 6. In other words,

the D.C. Circuit asked who was to pay the bill and

found that the question was “unanswered.” The

statute lacks any text that would give the agency

authority to extract such duties from the fishermen;

furthermore, Congress lacks the authority to hand

over this great power to the agency. See Louisiana

Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 357 (1986)

(“[A]n agency literally has no power to act . . . unless

and until Congress confers power upon it.”).

Nonetheless, due to Chevron, the lower court

interpreted the agency’s authority as including both

the incidental power to write rules so as to execute

Congress’s exercise of the Property Clause and to allow

the agency to exercise a separate great (and, again,

non-incidental) power: the power of the purse.

Not only does the statute not give the agency

authority to extract such duties from the fishermen,

but Congress also cannot assign this great power to the

agency. Congress must decide that duties should be

imposed and for what purpose; only then can the

details be assigned to the agency. Under our

constitutional system, which justly prizes self-

government and public accountability, it is impossible

for Congress to assign the authority to impose duties

without bearing the responsibility for doing so.

Agencies cannot have the authority of raising taxes or

spending money without Congress’s direction. In

short, because Congress did not exercise its great

power of laying duties for monitors, the agency did not

have the power to do so on its own.

In short, Chevron has brought us closer to a world

in which “the executive would possess an unbounded

power over the public purse of the nation; and might

apply all its monied resources at his pleasure.” See 3

Joseph Story, Commentaries on the Constitution of the

United States § 1342, at 213–14 (1833). Any private

individual could be faced with financial obligations

created through executive action in the absence of any

congressional policy decisions.

The Constitution requires that the “House of

Representatives cannot only refuse, but they alone can

propose, the supplies requisite for the support of

government.” Federalist No. 58. The court below said

Chevron requires otherwise. Many agencies have been

assigned rulemaking authority that contain no express

limits that might prohibit financial extraction from the

public. The implication of the lower court’s decision—

that any of those agencies can require private

individuals to provide “supplies requisite for the

support of government” policies without any

consideration by Congress—is, quite literally, radical.

The agency’s rule also avoided the political

accountability that, under our system, is attached to

the congressional appropriation of agency funds. If

Congress had appropriated money for the agency to

hire fishing monitors, a future Congress would have

the option of defunding the program. But by forcing

others to fund these monitors directly, the agency

sidesteps the congressional accountability that our

system of self-government requires.

Consider this example: for decades, the Securities

and Exchange Commission (“SEC”) has asked

Congress to give it the ability to “self-fund” through

fees on regulated entities. Commissioner Luis A.

Aguilar, Creating Reform That Is Sustainable for

Investors, 10 J. Int'l Bus. & L. 115, 121 (2011); Joel

Seligman, Self-Funding for the Securities and

Exchange Commission, 28 Nova L. Rev. 233, 259

(2004). But it appears that the SEC has instead

decided that it has the independent authority to raise

such revenues: apparently, the Commission’s

leadership has concluded that congressional silence

and its preexisting rulemaking authority are all that

is needed to engineer a new funding stream. The SEC

is now planning to require private companies to pay

outside entities it selects to ensure compliance with its

mandates. Notice of Proposed Rulemaking, The

Enhancement and Standardization of Climate-Related

Disclosures for Investors, 87 FR 21334, 21399 (April

11, 2022) (requiring “assurance of GHG emissions

disclosure by independent service providers should

also improve the reliability of such disclosure.”).

Courts have seen that deferring to agency actions

implies significant risk, in that it allows an end run

around the constitutional requirements imposed by

the congressional power of the purse. Bell Atl. Tel.

Companies v. F.C.C., 24 F.3d 1441, 1445 (D.C. Cir.

1994) (“Chevron deference to agency action that

creates a broad class of takings claims, compensable in

the Court of Claims, would allow agencies to use

statutory silence or ambiguity to expose the Treasury

to liability both massive and unforeseen.”). Yet, here,

the lower court deferred to the agency’s assumption of

the awesome taxing power. Cf. Nicol v. Ames, 173 U.S.

509, 515 (1899) (“The power to tax is the one great

power upon which the whole national fabric is based.

It is as necessary to the existence and prosperity of a

nation as is the air he breathes to the natural man. It

is not only the power to destroy, but it is also the power

to keep alive.”) (emphasis added).

Chevron should be overturned to protect the

Constitution’s enduring balance of powers. See also

Joe Biden, S. Rep. No. 104-5, at 27 (1995) (“The

founders also intended the power of the purse to be one

of the legislative branch’s strongest bulwarks against

incursions by the executive, and the key to

maintaining an enduring balance of powers.”).

CONCLUSION

For the foregoing reasons, this Court should

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

Defense Council, Inc. (1984).

Respectfully submitted,