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

Supreme Court briefJul 24, 2023

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No. 22-451

In The Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, INC., ET AL.,

Petitioners,

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 AMICI CURIAE THE SOUTHEASTERN

LEGAL FOUNDATION, JOB CREATORS

NETWORK FOUNDATION, TEXAS PUBLIC

POLICY FOUNDATION, AND THE DEFENSE OF

FREEDOM INSTITUTE FOR POLICY STUDIES

IN SUPPORT OF PETITIONERS

Braden H. Boucek

Kimberly S. Hermann

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

Karen Harned

JOB CREATORS NETWORK

FOUNDATION LEGAL ACTION FUND

15455 North Dallas Pkwy., Ste. 600

Addison, TX 75001

(202) 886-4651

Robert Henneke

Chance Weldon

TEXAS PUBLIC POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

(512) 472-2700

Thomas R. McCarthy

Counsel of Record

J. Michael Connolly

Tiffany H. Bates

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

Donald A. Daugherty, Jr.

DEFENSE OF FREEDOM

INSTITUTE FOR POLICY STUDIES

1455 Pennsylvania. Avenue, NW

Suite 400

Washington, DC 20004

(414) 559-6902

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF THE

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

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

Allowing agencies to evade congressional

appropriates and pass off enforcement costs to

regulated parties violates the separation of

powers.................................................................. 5

II. The Court should give the phrase “necessary

and appropriate” its plain meaning ........... 10

A. The court below interpreted the MSA’s

“necessary and appropriate” provision far

beyond its text ............................................ 10

B. A discretion-limiting interpretation of

“necessary and appropriate” is more

textually sound ........................................... 12

C. If any ambiguity exists, the Court should

construe the phrase narrowly to avoid

raising constitutional questions about

delegation.................................................... 14

III. This Court should overrule Chevron, because

it violates the separation of powers and basic

principles of due process. .................................. 17

A. Chevron violates the separation of powers . 17

B. Chevron violates basic due process

principles .................................................... 21

CONCLUSION ........................................................ 25

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935)................................................ 16

BST Holdings, L.L.C. v. OSHA,

17 F.4th 604 (5th Cir. 2021) ....................................2

Buffington v. McDonough,

143 S. Ct. 14 (2022)........................ 18, 19, 21, 23, 24

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

Council, Inc., 467 U.S. 837 (1984) ............4, 5, 18-24

Clinton v. City of N.Y.,

524 U.S. 417 (1998).......................................... 17, 20

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

575 U.S. 43 (2015)............................................ 19, 20

Egan v. Delaware River Port Auth.,

851 F.3d 263 (3d. Cir. 2017) .............................. 5, 24

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010)................................................ 20

Fuentes v. Shevin,

407 U.S. 67 (1972).................................................. 24

Goldberg v. Kelly,

397 U.S. 254 (1970)................................................ 21

iii

Gundy v. United States,

139 S. Ct. 2116 (2019)............................................ 15

Guthrie v. Wis. Emp. Rels. Comm’n,

111 Wis. 2d 447 (1983)........................................... 21

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016).............................. 21

Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013)................................ 19

Industrial Union Department, AFL-CIO v.

American Petroleum Institute,

448 U.S. 607 (1980).......................................... 15, 16

Kennedy v. Butler Fin. Sols., LLC,

2009 WL 290471 (N.D. Ill. Feb. 4, 2009) .............. 19

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)..............................................1

Marbury v. Madison,

5 U.S. 137 (1803).................................................... 18

Metro. Washington Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc.,

501 U.S. 252 (1991)................................................ 17

Mexican Gulf Fishing Co. v. U.S. Dep’t of

Com., 60 F.4th 956 (5th Cir. 2023)............ 13, 16, 17

Michigan v. EPA,

576 U.S. 743 (2015).......................................... 11, 12

Mistretta v. United States,

488 U.S. 361 (1989)................................................ 15

N.Y. Stock Exch. LLC v. SEC,

962 F.3d 541 (D.C. Cir. 2020) ................................ 13

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018)................................................1

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

Internet Servs., 545 U.S. 967 (2005).................. 4, 20

Nat’l Grain & Feed Ass’n v. OSHA,

866 F.2d 717 (5th Cir. 1988).................................. 13

Ocean Conservancy v. Gutierrez,

394 F. Supp. 3d 147 (D.D.C. 2005 ......................... 13

Olivas-Motta v. Holder,

746 F.3d 907 (9th Cir. 2013)............................ 13, 14

Padilla-Caldera v. Holder,

637 F.3d 1140 (10th Cir. 2011).............................. 19

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) .................................. 20

Relentless, Inc. v. U.S. Dep’t of Com.,

62 F.4th 621 (1st Cir. 2023)................................... 16

Sanchez v. Att’y Gen. of the U.S.,

997 F.3d 113 (3d. Cir. 2021) .................................. 14

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020)...................................... 17, 20

Serono Lab’ys, Inc. v. Shalala,

158 F.3d 1313 (D.C. Cir. 1998) .............................. 22

Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue,

382 Wis. 2d 496 (2018)........................................... 23

U.S. Dep’t of Navy v. Fed. Lab. Rel. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) ........................ 7, 8, 9

United States ex rel. Att’y Gen. v. Del. & Hudson

Co., 213 U.S. 366 (1909) ........................................ 14

United States v. Am. Trucking Assns., Inc.,

310 U.S. 534 (1940)................................................ 18

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) (Thapar, J.,

concurring), rev’d en banc, 927 F.3d 382

(6th Cir. 2019) ........................................................ 22

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014)..................................................1

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................. 15

Whitman v. Am. Truckers Ass’n, Inc.,

531 U.S. 457 (2001)................................................ 16

Williams v. Pennsylvania,

579 U.S. 1 (2016).................................................... 23

Constitution and Statutes

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

U.S. Const., art. III, §1 .............................................. 18

16 U.S.C. §1801(a)(6) ................................................ 10

16 U.S.C. §1853 ......................................................... 10

16 U.S.C. §1853(b)(14) .............................................. 10

31 U.S.C. §1341(a)(1) ..................................................5

31 U.S.C. §3302(b) .......................................................6

Other Authorities

Joseph Story, Commentaries on the

Constitution of the United States, §1342 (1833) ....9

A. Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L. J. 908

(2017) ...................................................................... 21

Todd Garvey & Daniel J. Sheffner, Congress’s

Authority to Influence and Control Executive

Branch Agencies, Cong. Research Serv., R45442

(May 12, 2021) .........................................................8

Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187 (2016) ......................... 21, 22, 23

Brett

Kavanaugh,

Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118

(2016) ................................................................ 24, 25

vii

New Oxford American Dictionary (Angus

Stevenson and Christine A. Lindberg eds., 3rd

ed. 2010) ................................................................. 12

Zachary S. Price, Funding Restrictions and

Separation of Powers, 71 Vand. L. Rev. 357

(2018) ........................................................................8

Antonin Scalia & Bryan A. Garner, Reading Law ... 14

Thomas Sowell, The Vision of the Anointed (1995) .. 12

Sean M. Stiff, Congress’s Power Over

Appropriations: Constitutional and Statutory

Provisions, Cong. Research Serv., R46417 (June

16, 2020) ............................................................... 7, 8

Kate Stith, Appropriations Clause, Nat’l Const.

Ctr., perma.cc/T7EW-S5BM ................................ 6, 7

Kate Stith, Congress’ Power of the Purse, 97

Yale L.J. 1343 (1988) ........................................... 3, 9

Cass R. Sunstein, Law and Administration After

Chevron, 90 Colum. L. Rev. 2071 (1990) .............. 18

Laurence H. Tribe, American Constitutional Law

(2d ed. 1988) .............................................................8

The Federalist No. 10 (J. Madison) .......................... 23

The Federalist No. 47 (J. Madison) ..........................17

The Federalist No. 51 (J. Madison) .......................... 19

viii

The Federalist No. 58 (J. Madison) ............................7

The Federalist No. 78 (A. Hamilton) .................. 18, 20

U.S. Jud. Conduct Code, Canon 1............................. 22

U.S. Jud. Conduct Code, Canon 3............................. 22

INTEREST OF AMICI CURIAE 1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates for constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion. In

particular, SLF advocates to protect individual rights

and the framework set forth to protect such rights in

the Constitution. This aspect of its advocacy is

reflected in the regular representation of those

challenging overreaching governmental and other

actions in violation of the constitutional framework.

See, e.g., Util. Air Regulatory Grp. v. EPA, 573 U.S.

302 (2014), and Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138

S. Ct. 617 (2018). SLF also regularly files amicus

curiae briefs with this Court about issues of agency

overreach and deference. See, e.g., Kisor v. Wilkie, 139

S. Ct. 2400 (2019).

Job Creators Network Foundation (JCNF) is a

501(c)(3) nonpartisan organization founded by

entrepreneurs committed to educating employees of

Main Street America about government policies that

harm economic freedom. JCNF’s Legal Action Fund

defends against government overreach to ensure that

America’s free market system is not only protected but

allowed to thrive.

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amici curiae or its counsel has made a monetary contribution to

the preparation or submission of this brief.

The Texas Public Policy Foundation (TPPF) is a

nonprofit, nonpartisan research foundation dedicated

to promoting and defending liberty, personal

responsibility, and free enterprise throughout Texas

and the nation. For decades, TPPF has worked to

advance these goals through research, policy

advocacy, and impact litigation. In pursuit of its broad

mission,

TPPF

has

advocated

against

unconstitutional judicial deference to unelected

bureaucrats through its litigation, in cases such as

BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir.

2021); its public advocacy, both in Texas and across

the country; and amicus briefs such as this one.

The Defense of Freedom Institute for Policy

Studies, Inc. (DFI) is a nonprofit, nonpartisan

501(c)(3) institute dedicated to defending and

advancing freedom and opportunity for every

American family, student, entrepreneur, and worker,

and to protecting the civil and constitutional rights of

Americans at school and in the workplace. Founded in

2021 by former senior leaders of the U.S. Department

of Education who are experts in education law, policy,

and agency rulemaking, DFI has a significant interest

in challenging administrative overreach by federal

agencies and recently joined with five former U.S.

Secretaries of Education to file an amicus brief with

this Court opposing the Department of Education’s

student loan debt cancellation policy. DFI’s efforts in

support of its mission include litigating federal

authority under the Constitution to take actions

through rulemaking or otherwise.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

For more than three decades, the MagnusonStevens Fishery Conservation and Management Act

of 1976 (MSA) has authorized the National Marine

Fisheries Service to require commercial herring

fisherman to carry third-party monitors on board to

monitor their compliance with federal fishing

regulations. But when the agency ran out of money for

the monitors, it shifted the responsibility of paying (an

estimated $700 per day) to the fishermen themselves.

In doing so, the agency evaded Congress’s power over

the purse and its ability to limit agency programming

through appropriations.

That scheme raises serious separation of powers

issues. The power of the purse is an important check

on federal agencies. And “absent express statutory

authority … agencies can only spend as much money

as Congress appropriates.” App. 23 (Walker, J.,

dissenting). They simply may not “resort to

nonappropriation

financing”

without

express

authority to do so. Kate Stith, Congress’ Power of the

Purse, 97 Yale L.J. 1343, 1356 (1988). If an agency

“could avoid limitations imposed by Congress in

appropriations

legislation[]

independently

financing its activities,” it “would vitiate the

foundational Constitutional decision to empower

Congress to determine what actions shall be

undertaken in the name of the United States.” Id. Yet

the Fisheries Service “attempted a workaround” of

those constraints here. App. 23 (Walker, J.). This

Court should not allow it.

Further, the Court should resolve the meaning of

the phrase “necessary and appropriate,” consistent

with its text. In determining that industry-funded

monitors are “necessary and appropriate” under the

MSA, the court below gave that provision a meaning

that went far beyond its text and allowed the agency

to expand its power and ignore the costs that the

program imposed on fishermen. In the MSA and other

statutes, “necessary and appropriate” is most

naturally read as a discretion-limiting provision. But

even if the phrase were not clear, any ambiguity must

be read narrowly to avoid raising constitutional

questions about delegation.

Finally, Amici agree that the Court should

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

Council, Inc., 467 U.S. 837 (1984). Chevron requires

courts to uphold an agency’s interpretation of a

statute—even if not the best interpretation—so long

as that interpretation is reasonable. This approach

forces courts to defer to agencies on questions of law,

thus requiring the judiciary to shirk its duty to say

what the law is. Time and again, Chevron forces

judges to uphold interpretations that they believe are

wrong. Indeed, “Chevron teaches that a court’s opinion

as to the best reading of an ambiguous statute an

agency is charged with administering is not

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

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

That approach shifts substantial power from the

judiciary to administrative agencies in violation of the

separation of powers.

Chevron also violates bedrock principles of due

process.

Among

other

concerns,

Chevron

systematically tips the scales in the government’s

favor, allows an agency to act as its own judge, and

deprives non-agency parties of fair notice. That

scheme is incompatible with the Constitution’s most

fundamental safeguards. Indeed, it is “contrary to the

roles assigned to the separate branches of

government” and “require[s] [judges] at times to lay

aside fairness and [their] own best judgment and

instead bow to the nation’s most powerful litigant, the

government, for no reason other than that it is the

government.” Egan v. Delaware River Port Auth., 851

F.3d 263, 278 (3d. Cir. 2017) (Jordan, J., concurring in

the judgment).

The Court should reverse the decision below.

ARGUMENT

Allowing agencies to evade congressional

appropriates and pass off enforcement

costs to regulated parties violates the

separation of powers.

For at least the last decade, “the Fisheries Service

has had trouble affording its preferred monitoring

programs with just its congressionally appropriated

funds.” App. 22-23 (Walker, J., dissenting). This

presented a serious problem for the agency. “[A]bsent

express statutory authority … agencies can only

spend as much money as Congress appropriates.” Id.

at 23; see e.g., 31 U.S.C. §1341(a)(1) (“An officer or

employee of the United States Government or of the

District of Columbia government may not— (A) make

or authorize an expenditure or obligation exceeding

an amount available in an appropriation or fund for

the expenditure or obligation”). And “Congress

generally prohibits an agency from collecting fees and

keeping the money from those fees for the agency’s

own purposes.” App. 23 (Walker, J.); see 31 U.S.C.

§3302(b) (barring agencies from collecting fees and

keeping that money to fund the agency itself; and

requiring government officials “receiving money …

from any source” to “deposit the money in the

Treasury as soon as practicable” unless Congress

establishes an exception).

So the Fisheries Service “attempted a

workaround.” App. 23 (Walker, J.). “It decided to make

fishing companies, like Loper Bright Enterprises, hire

and pay for their own at-sea monitors.” Id. While the

agency itself acknowledged that claiming this power

to force the regulated community to pay for the

government’s monitoring efforts was “highly

sensitive,” see Pet. 22; CADC App. 293, it claimed that

power nevertheless. It simply deemed the burden of

contracting $700 a day third-party monitors as a

reasonable compliance cost, thereby evading

Congress’s control over the purse and its ability to

limit agency programming through appropriations.

By interpreting the Magnuson-Stevens Act to allow

the agency to circumvent that process, this scheme

raises serious separation-of-powers concerns.

“Congress’s ‘power of the purse’ is at the

foundation of our Constitution’s separation of powers,

a constitutionally mandated check on Executive

power.” Kate Stith, Appropriations Clause, Nat’l

Const. Ctr., perma.cc/T7EW-S5BM; see U.S. Const.

art. I, §9, cl. 7 (“No money shall be drawn from the

Treasury, but in Consequence of Appropriations made

by Law”). Indeed, the Founders considered giving the

power of the purse to Congress alone as a key

structural curb on executive authority. See The

Federalist No. 58 (J. Madison) (“This power over the

purse may, in fact, be regarded as the most complete

and effectual weapon with which any constitution can

arm the immediate representatives of the people, for

obtaining a redress of every grievance, and for

carrying into effect every just and salutary

measure.”). And it remains a “bulwark of the

Constitution’s separation of powers among the three

branches of the National Government.” U.S. Dep’t of

Navy v. Fed. Lab. Rel. Auth., 665 F.3d 1339, 1347

(D.C. Cir. 2012) (Kavanaugh, J.).

For decades, however, executive agencies abused

the appropriations process. See Sean M. Stiff,

Congress’s Power Over Appropriations: Constitutional

and Statutory Provisions, Cong. Research Serv.,

R46417, 2 (June 16, 2020) (“Agencies augmented their

own budgets by retaining and using public money;

obligated an appropriation beyond its purpose;

wrested greater funding from Congress by spending

all that Congress had appropriated previously or

obligated for purposes not permitted by the

appropriation; and refused to obligate funds to

advance policies with which a President disagreed.”).

In response, “Congress adopted a series of generally

applicable ‘fiscal control’ statutes designed to” reclaim

its power over appropriations and to “tighten its hold

on the purse strings.” See id. at 4; App. 22-23 (Walker,

J.).

Today, the power of the purse remains a potent

check on federal agencies. Indeed, as Petitioners

explain, it remains “one of the few practical

constraints on overregulation.” Pet. 22. “Congress

exercises virtually plenary control over agency

funding.” Todd Garvey & Daniel J. Sheffner,

Congress’s Authority to Influence and Control

Executive Branch Agencies, Cong. Research Serv.,

R45442, 14 (May 12, 2021). And this power “can be

used to control agency priorities, prohibit agency

action by denying funds for a specific action, or force

agency action by either explicitly appropriating funds

for a program or activity or withholding agency

funding until Congress’s wishes are complied with.”

Id.; see also Laurence H. Tribe, American

Constitutional Law 221-22 (2d ed. 1988) (“Congress

may simply refuse to appropriate funds for policies it

deems unsound.”). This power is a particularly vital

tool for Congress because, unlike legislation, a

President cannot veto the absence of an appropriation.

See Zachary S. Price, Funding Restrictions and

Separation of Powers, 71 Vand. L. Rev. 357, 367-68

(2018) (“Congress has ensured that presidents must

always come back every year seeking money just to

keep the government’s lights on.”); U.S. Dep’t of Navy,

665 F.3d at 1347 (Kavanaugh, J.) (Congress’s

appropriations power “is particularly important as a

restraint on Executive Branch officers.”).

Yet the “attempted [] workaround” here, App. 23

(Walker, J.), allows the agency to independently fund

its operations without congressional authorization.

That scheme undercuts the constitutional safeguards

provided by the Congressional appropriations process.

See Stith, Congress’ Power of the Purse, supra, at 1356.

Under the government’s theory, any agency could

evade congressional oversight by designing a

regulatory program that simply transferred the

agency’s costs directly to regulated parties. See Dep’t

of Navy, 665 F.3d at 1347 (Kavanaugh, J.) (quoting 3

Joseph Story, Commentaries on the Constitution of

the United States, §1342, at 213-14 (1833)) (“If not for

the Appropriations Clause, ‘the executive would

possess an unbounded power over the public purse of

the nation.’”). Indeed, as Judge Walker recognized

below, the agency’s theory could allow it—or other

agencies—to

evade

Congressional

oversight

altogether. App. 32 (Walker, J.) (“[W]hat if Congress

were to entirely defund the compliance mechanisms of

the Fisheries Service—could the agency continue to

operate by requiring the industry to fund [the

agency]? That … could undermine Congress’s power

of the purse.”). That theory would fundamentally

undermine the separation of powers.

At bottom, “[f]ederal agencies may not resort to

nonappropriation financing.” Stith, Congress’ Power of

the Purse, supra, 1356. “[T]heir activities are

authorized only to the extent of their appropriations.”

Id. Thus, when an agency seeks funding outside of the

appropriations process without express statutory

authority, it presents serious separation-of-powers

issues. This Court should not overlook those concerns.

II. The Court should give the phrase

“necessary and appropriate” its plain

meaning.

A. The court below interpreted the MSA’s

“necessary and appropriate” provision far

beyond its text.

In determining that industry-funded monitors are

“necessary and appropriate” under the MSA, the court

below gave that provision a meaning that is far too

broad. This reading allowed the agency to expand its

power and ignore the costs the program imposed on

fishermen.

The Fisheries Service sought to justify its program

under its authority to implement comprehensive

fishery management programs. See 16 U.S.C.

§1801(a)(6). The law directs regional fisheries councils

to create and implement these plans within certain

defined limits. Id. §1853. And section 1853(b) specifies

the areas in which the fishery management programs

may permissibly regulate. That subsection ends with

a catchall provision that authorizes measures that are

“necessary and appropriate” to conserve the fishery.

Id. §1853(b)(14). But the MSA does not explicitly

authorize the New England Fishery Management

Council’s industry-funded monitoring scheme. So the

Council relied on the breadth of the “necessary and

appropriate” language in §1853 to justify passing off

monitoring costs to the fishermen themselves.

The court below ignored the grave separation

powers concerns presented by the Fisheries Service’s

nonappropriation financing. It held that the Fisheries

Service’s program fit within the purported “‘capacious’

grant of power” that the “necessary and appropriate”

language affords. App. 7 (quoting Michigan v. EPA,

576 U.S. 743, 752 (2015)).

That decision flies in the face of this Court’s

interpretation of similar language. In Michigan v.

EPA, this court held that a “necessary and

appropriate” clause requires an agency to weigh the

various, context-sensitive factors that inform sound

policy. 576 U.S. at 743. This almost always requires

“some attention to cost,” because Congress tasks

agencies with promulgating policy under conditions of

scarcity. See id. at 752. Put simply, “necessary and

appropriate” clauses are one way that Congress

expresses its view that promulgating high cost, low

return policies is “[ir]rational, never mind

‘appropriate.’” Id. at 752.

Rather than reading Michigan as cabining an

agency’s authority to impose costs on the industry, the

court below read Michigan as a license for the agency

to impose costs. The court reasoned that Michigan’s

cost-conscious holding “presupposes that a ‘necessary

and appropriate’ clause vests an agency with some

authority to impose compliance costs.” App. 8. The

court then dismissed concerns that the industryfunded monitoring scheme would create overly

burdensome compliance costs.

This reading grants the agency carte blanche to

levy costs on the regulated industry. First, the court

neither weighed the decidedly burdensome costs

against the benefits of the regulation nor specified a

limit beyond which additional costs would be

inappropriate. This effectively stripped Michigan of

its core holding: “Necessary and appropriate” clauses

force agencies to be cost conscious. Second, its reading

ignores the actual judgment in Michigan, which

invalidated the EPA regulation at issue because the

agency—much like the Council here—failed to

adequately account for the costs of the regulation it

sought to enforce. If, as the court below suggests,

“necessary and appropriate” merely confers authority

to impose compliance costs, it would render this

Court’s logic in Michigan nonsensical. Third, their

interpretation reads “necessary and appropriate” out

of the statute, since the authority to “impose some

costs” of compliance is implied by any grant of

regulatory authority. App. 8. By definition, all

regulation entails both costs and benefits. See Thomas

Sowell, The Vision of the Anointed 133 (1995) (“There

are no ‘solutions’ … only tradeoffs.”).

B. A discretion-limiting interpretation of

“necessary and appropriate” is more

textually sound.

The court below concluded that the phrase

“necessary and appropriate” is discretion-conferring.

See App. 7 (“necessary and appropriate” is a

“‘capacious[]’ grant of power that ‘leaves agencies with

flexibility’”). Yet in both the MSA and other statutes,

“necessary and appropriate” is most naturally read as

a discretion-limiting provision. “Necessary” does not

encompass all possible actions. Rather, it extends only

to those that are “needed” or “essential.” New Oxford

American Dictionary 1170 (Angus Stevenson and

Christine A. Lindberg eds., 3rd ed. 2010). The word

“appropriate” characterizes actions that are “suitable

or proper in the circumstances.” Id. at 77. Taken

together, these words cabin discretion by requiring

the agency to “spell out the need for any proposed rule

and its potential drawbacks.” N.Y. Stock Exch. LLC v.

SEC, 962 F.3d 541, 561 (D.C. Cir. 2020) (Pillard, J.,

concurring).

The most textually sound reading of “necessary

and appropriate,” then, is the reading that requires

agencies to weigh the costs and benefits of a particular

policy before promulgating it. Earlier this year, the

Fifth Circuit agreed. It concluded that “the adjectives

necessary and appropriate limit the authorization

contained in th[at] provision” of the MSA. Mexican

Gulf Fishing Co. v. U.S. Dep’t of Com., 60 F.4th 956,

965 (5th Cir. 2023) (emphasis in original); see also

Ocean Conservancy v. Gutierrez, 394 F. Supp. 3d 147,

156 (D.D.C. 2005) (“[NMFS’s] discretion is tempered

by substantive elements of the [MSA] that require all

regulations to be ‘necessary and appropriate’’’). This

discretion limiting approach typically requires

agencies to consider costs. See, e.g., Mexican Gulf, 60

F.4th at 965 (“[T]he rule is authorized by the

Magnuson-Stevens Act only if it is necessary and

appropriate, which at a minimum requires that its

benefits reasonably outweigh its costs.”).

That comports with the use of “necessary and

appropriate” in other instances too. See Nat’l Grain &

Feed Ass’n v. OSHA, 866 F.2d 717, 733 (5th Cir. 1988)

(holding that “necessary or appropriate” clauses call

for “cost-benefit justification”). Olivas-Motta v.

Holder, 746 F.3d 907, 918 (9th Cir. 2013) (Kleinfeld,

J., concurring) (A “necessary and appropriate” clause

“is considerably narrower than the word ‘any’ might

be,

because

requires

necessity

and

appropriateness.”); Sanchez v. Att’y Gen. of the U.S.,

997 F.3d 113, 121 (3d. Cir. 2021) (“appropriate and

necessary” is “limiting”). Moreover, because

“necessary and appropriate” clauses are discretion

limiting

and

“require[]

necessity

and

appropriateness,” they do not grant independent

authority to promulgate rules not otherwise permitted

by the statute. Olivas-Motta, 746 F.3d at 918

(Kleinfeld, J., concurring).

At bottom, the Court should give the phrase

“necessary and appropriate” its plain meaning.

C. If any ambiguity exists, the Court should

construe the phrase narrowly to avoid

raising constitutional questions about

delegation.

Even if there was some ambiguity about how to

interpret the MSA’s “necessary and appropriate”

clause, it should be resolved in favor of the narrower

interpretation to avoid raising serious constitutional

questions present here. “[W]here a statute is

susceptible of two constructions, by one of which grave

and doubtful constitutional questions arise and by the

other of which such questions are avoided, [this

Court’s] duty is to adopt the latter.” United States ex

rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408

(1909). Constitutional avoidance is appropriate when

an alternative interpretation “raise[s] serious

questions of constitutionality.” Antonin Scalia &

Bryan A. Garner, Reading Law 248.

A broad interpretation of “necessary and

appropriate” raises serious questions here concerning

congressional delegation of power. “Congress may not

transfer to another branch ‘powers which are strictly

and exclusively legislative.’” Gundy v. United States,

139 S. Ct. 2116, 2131 (2019) (quoting Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)).

Though the Court has seldom invoked the

nondelegation doctrine to invalidate statutes, the

doctrine often informs statutory construction. See,

e.g., Mistretta v. United States, 488 U.S. 361, 373 n.7

(1989) (“[O]ur application of the nondelegation

doctrine principally has” consisted of “giving narrow

constructions to statutory delegations that might

otherwise be thought to be unconstitutional.”).

In Industrial Union Department, AFL-CIO v.

American Petroleum Institute, this Court held that the

phrase “necessary and appropriate” may raise

delegation problems. 448 U.S. 607, 646 (1980). In that

case, this Court interpreted §3(8) of the Occupation

Health and Safety Act, which granted OSHA the

authority to promulgate regulations “reasonably

necessary and appropriate” to ensure workplace

safety. 448 U.S. 607 (1980). The Court adopted a

construction that cabined the Secretary’s discretion

because the alternative would constitute a “‘sweeping

delegation of legislative power’ that might be

unconstitutional.” Id. at 646 (quoting A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 539

(1935)). Concurring, Justice Powell explained that a

broad reading of “reasonably necessary and

appropriate” would require Congress to have

delegated an “irrational” amount of discretion to the

agency. Id. at 670 (Powell, J., concurring).

This Court’s logic in American Petroleum applies

with equal force here. The D.C. Circuit’s reading of

“necessary and appropriate” lacks any clear

“intelligible principle” to guide agency action. See

Whitman v. Am. Truckers Ass’n, Inc., 531 U.S. 457,

458 (2001) (holding that a congressional act of

delegation must “lay down an intelligible principle to

which the person or body authorized to act is directed

to conform”). It is not clear whether the court below

would deem anything outside the scope of the statute’s

“necessary and appropriate” language. A capacious

reading plausibly permits all sorts of peculiar

hypothetical regulations that have a tenuous link to

Congress’ intended scheme. E.g., App. 31 (Walker, J.)

(“Could the agency require the fishermen to drive

regulators to their government offices if gas gets too

expensive?”). At a minimum, this raises the possibility

of a delegation issue.

Recently, the Fifth Circuit invoked constitutional

avoidance while constructing this very language in

the MSA. In Mexican Gulf, fishermen challenged a

rule requiring covered fishing vessels to install GPS

trackers. Though the court found the meaning of

“necessary and appropriate” to be sufficiently clear to

adopt the narrow interpretation, they “[a]dd[ed] belt

to suspenders.” Relentless, Inc. v. U.S. Dep’t of Com.,

62 F.4th 621, 630 (1st Cir. 2023). Assuming in the

alternative that the phrase was vague, the court still

adopted the narrow interpretation because it avoided

a potential Fourth Amendment problem with the

challenged rule. Mexican Gulf, 60 F.4th at 966-67.

This Court should do the same if it finds that

“necessary and appropriate” is vague and adopt the

interpretation least likely to raise a constitutional

issue.

III. This Court should overrule Chevron,

because it violates the separation of powers

and basic principles of due process.

A. Chevron violates the separation of powers.

The separation of powers is an “essential

precaution in favor of liberty.” The Federalist No. 47

(J. Madison). Indeed, the “ultimate purpose” of the

separation of powers “is to protect the liberty and

security of the governed.” Metro. Washington Airports

Auth. v. Citizens for Abatement of Aircraft Noise, Inc.,

501 U.S. 252, 272 (1991). But “[l]iberty is always at

stake when one or more of the branches seek to

transgress the separation of powers.” Clinton v. City

of N.Y., 524 U.S. 417, 450 (1998) (Kennedy, J.,

concurring). Because the “accumulation of all powers,

legislative, executive, and judiciary, in the same

hands, … may justly be pronounced the very

definition of tyranny,” the Framers formed a

government that would keep those powers “separate

and distinct.” The Federalist No. 47, supra. They thus

adopted a Constitution that “set[] out three branches

and vest[ed] a different form of power in each—

legislative, executive, and judicial.” Seila Law LLC v.

CFPB, 140 S. Ct. 2183, 2212 (2020) (Thomas, J.,

concurring in part).

Article III vests “[t]he judicial Power of the United

States” in the federal courts alone. That division of

power was intentional. The Framers believed that

“the general liberty of the people can never be

endangered … so long as the judiciary remains truly

distinct from both the legislative and executive.” The

Federalist No. 78 (A. Hamilton). But Chevron—which

often requires judges to defer to an agency’s judgment

on questions of law—reallocates considerable judicial

power to federal agencies.

When agencies interpret the law, they exercise

“[t]he judicial Power of the United States.” U.S.

Const., art. III, §1. “The interpretation of the meaning

of statutes, as applied to justiciable controversies, is

exclusively a judicial function.” United States v. Am.

Trucking Assns., Inc., 310 U.S. 534, 544 (1940). In the

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

emphatically the province and duty of the judicial

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

Madison, 5 U.S. 137, 177 (1803). Yet Chevron forces

judges to shirk this duty. It is unsurprising, then, that

scholars have described Chevron deference as

“counter-Marbury.” Cass R. Sunstein, Law and

Administration After Chevron, 90 Colum. L. Rev.

2071, 2074-75 (1990). Under Chevron, judges do not

“say what the law is.” Instead, they pass off that task

to an agency, violating the separation of powers.

Chevron invites executive agencies to take on the

role of independent judges. It conflicts with the

“traditional rule that judges must exercise

independent judgment about the law’s meaning.”

Buffington v. McDonough, 143 S. Ct. 14, 17 (2022)

(Gorsuch, J.). And it instructs judges to “bypass[] any

independent review of the relevant statutes.” Id. at 14;

see, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081,

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

reasonable, we must accept that construction under

Chevron, even if we believe the agency’s reading is not

the best statutory interpretation.”). Yet neither

Congress nor the courts have constitutional authority

to transfer the judicial power to agencies. Indeed, the

“Vesting Clauses are exclusive” and “the branch in

which a power is vested may not give it up or

otherwise reallocate it.” Dep’t of Transp. v. Ass’n of

Am. Railroads, 575 U.S. 43, 74 (2015) (Thomas, J.,

concurring in the judgment). The Framers “were

concerned not just with the starting allocation, but

with the ‘gradual concentration of the several powers

in the same department.’” Id. (quoting The Federalist

No. 51 (J. Madison)). On top of that, agency

bureaucrats—who are responsive to political

pressures, budgetary concerns, and potential

removal—make poor substitutes for independent

judges who enjoy tenure and salary protections.

Over and over, Chevron forces judges to uphold

interpretations that they believe are wrong. See, e.g.,

Kennedy v. Butler Fin. Sols., LLC, 2009 WL 290471,

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

strikes the Court as reasonable, though perhaps not

the best interpretation of the law.”). And sometimes

courts are required to uphold an interpretation that

they have previously rejected. See, e.g., PadillaCaldera v. Holder, 637 F.3d 1140, 1147-1152 (10th

Cir. 2011) (holding that under Chevron the court is

obligated

discard

its

earlier

statutory

interpretation

and

defer

the

agency’s

interpretation). In fact, “Chevron teaches that a

court’s opinion as to the best reading of an ambiguous

statute an agency is charged with administering is not

authoritative.” Brand X Internet Servs., 545 U.S. at

983.

Chevron thus shifts substantial power from the

judiciary to administrative agencies, disrupting the

Constitution’s careful allocation of power amongst the

three branches. From the start, the Framers

identified the judiciary as “the weakest of the three

departments of power.” The Federalist No. 78, supra.

But under Chevron, courts are made even weaker.

Indeed, Chevron effectively renders the judiciary a

rubber stamp for agencies that “wield[] vast power

and touch[] almost every aspect of daily life.” Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.

477, 499 (2010). Such a scheme “‘pose[s] a significant

threat to individual liberty and to the constitutional

system of separation of powers and checks and

balances.’” Seila Law LLC, 140 S. Ct. at 2212

(Thomas, J., concurring in part) (quoting PHH Corp.

v. CFPB, 881 F.3d 75, 165 (D.C. Cir. 2018)

(Kavanaugh, J., dissenting)). “Abdication of

responsibility is not part of the constitutional design.”

Clinton, 524 U.S. at 452 (Kennedy, J., concurring).

The Constitution simply does not contemplate such

“undifferentiated governmental power.” Ass’n of Am.

Railroads, 575 U.S. at 67 (Thomas, J., concurring in

judgment) (cleaned up).

B. Chevron violates

principles.

basic

due

process

Chevron also violates basic principles of due

process.

then-Judge

Gorsuch

observed,

“[t]ransferring the job of saying what the law is from

the judiciary to the executive unsurprisingly invites

the very sort of due process … concerns the framers

knew would arise if the political branches intruded on

judicial functions.” Gutierrez-Brizuela v. Lynch, 834

F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J.,

concurring); see also Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187, 1239 (2016) (“Precedents

such as Chevron … require judges to give up their role

as judges and … violate the due process of law.”).

Among other problems, Chevron systematically tips

the scales in the government’s favor, allows agencies

to act as their own judge, and deprives non-agency

parties of fair notice.

To start, Chevron “introduce[s] into judicial

proceedings a ‘systematic bias toward one of the

parties.’” Buffington, 143 S. Ct. at 19 (Gorsuch, J.)

(quoting Hamburger, Chevron Bias, supra, at 1212).

But Americans expect courts to “resolve disputes

about their rights and duties under law without fear

or favor to any party—the Executive Branch

included.” Id. at 16 (citing A. Bamzai, The Origins of

Judicial Deference to Executive Interpretation, 126

Yale L. J. 908, 987 (2017). Indeed, the “minimal

rudiment of due process” includes a fair and impartial

decisionmaker.” Guthrie v. Wis. Emp. Rels. Comm’n,

111 Wis. 2d 447, 453 (1983) (citing Goldberg v.

Kelly, 397 U.S. 254, 271 (1970)).

But Chevron undermines the promise of a neutral

decisionmaker. Under Chevron, judges must abandon

their independent judgment and defer to an agency’s

interpretation of law. That means when judges defer

to these administrative interpretations, they often

simply “adopt[] the interpretation or legal position of

one of the parties.” Hamburger, Chevron Bias, supra,

at 1189. And they must do so as long as the agency’s

interpretation is reasonable, “regardless [of] whether

there may be other reasonable, or even more

reasonable, views.” Serono Lab’ys, Inc. v. Shalala, 158

F.3d 1313, 1321 (D.C. Cir. 1998). That necessarily

produces “systematically biased judgment[s]” in favor

of one party. Hamburger, Chevron Bias, supra, at

1211.

In no other context does a court simply defer to

one of the parties. At least one federal judge has

suggested that such extreme deference may violate

judicial canons requiring independence. See United

States v. Havis, 907 F.3d 439, 451 n.1 (6th Cir. 2018)

(Thapar, J., concurring), rev’d en banc, 927 F.3d 382,

n.1 (6th Cir. 2019) (“[I]f judges are predisposed to

defer when the government is involved, then that precommitment is ‘systemic bias.’ And that bias violates

both the first and third canon of judicial conduct. See

U.S. Jud. Conduct Code, Canon 1 (requiring an

independent judiciary for a just society); Canon 3

(requiring judges to recuse if a judge has a bias in

favor or against a party).”). Instead of recognizing the

judge as an impartial decisionmaker, Chevron

requires the judge to systematically favor one party.

And not just any party. This scheme favors the

federal government—“the most powerful of litigants.”

Buffington, 143 S. Ct. at 19 (Gorsuch, J.). Indeed,

Chevron gives the federal government an unfair

advantage by tipping the scales in its favor. See

Hamburger, Chevron Bias, supra, at 1250. Such

deference conflicts with American courts’ historic

commitment to “favor individual liberty” and to

construe certain ambiguities in law “against the

government and with lenity toward affected persons.”

Buffington, 143 S. Ct. at 19 (Gorsuch, J.).

Chevron also undermines due process because it

allows the agency to act as its own judge. “When an

administrative agency interprets and applies the law

in a case to which it is a party, it is to that extent

acting as judge of its own cause.” Tetra Tech EC, Inc.

v. Wis. Dep’t of Revenue, 382 Wis. 2d 496, 555, (2018).

But it is a “basic requirement of due process,”

Buffington, 143 S. Ct. at 19 (Gorsuch, J.), that “[n]o

man is allowed to be a judge in his own cause,” The

Federalist No. 10 (J. Madison). As James Madison

explained, “a body of men are unfit to be both judges

and parties, at the same time,” because a man’s

“interest would certainly bias his judgment, and, not

improbably, corrupt his integrity.” Id.; see also

Williams v. Pennsylvania, 579 U.S. 1, 8-9 (2016). And

“[i]t is entirely unrealistic to expect [an] agency to

function as a ‘fair and impartial decisionmaker’ as it

authoritatively tells the court how to interpret and

apply the law that will decide its case.” Tetra Tech EC,

Inc., 382 Wis. 2d at 556.

Finally, Chevron violates notions of fair notice.

The “central meaning of procedural due process” is the

“right to notice and an opportunity to be heard … at a

meaningful

time

and

meaningful

manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972).

Under a broad reading of Chevron, “[f]air notice gives

way to vast uncertainty.” Buffington, 143 S. Ct. at 20.

(Gorsuch, J.). Because agencies may shift from one

“reasonable” interpretation to another, “individuals

can never be sure of their legal rights and duties.” Id.

This uncertainty makes it difficult for individuals,

especially ordinary Americans, to structure their

personal affairs. They are simply “left to guess what

some executive official might ‘reasonably’ decree the

law to be today, tomorrow, next year, or after the next

election.” Id. And while “‘[e]very relevant actor may

agree’ that the agency’s latest interpretation is not the

best interpretation of the law, each new iteration still

‘carries the force of law.’” Id. (citing Brett M.

Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2151 (2016)). Allowing federal

agencies to shift the meaning of binding laws denies

Americans fair notice.

At bottom, Chevron is incompatible with the

Constitution’s most fundamental safeguards. It is

“contrary to the roles assigned to the separate

branches of government” and “require[s] [judges] at

times to lay aside fairness and [their] own best

judgment and instead bow to the nation’s most

powerful litigant, the government, for no reason other

than that it is the government.” Egan, 851 F.3d at 278

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

should revisit Chevron and put an end to this

“atextual invention by courts.” Kavanaugh, 129 Harv.

L. Rev. at 2150.

CONCLUSION

For these reasons, the Court should reverse the

decision below.

Respectfully submitted,

July 24, 2023