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

No. 22-451

In the

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, et al.,

Petitioners,

v.

GINA RAIMONDO, SECRETARY

OF COMMERCE, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of A ppeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE LAWYERS’

COMMITTEE FOR CIVIL RIGHTS UNDER

LAW IN SUPPORT OF RESPONDENTS

Damon Hewitt*

Jon Greenbaum

Thomas Silverstein

Sophia Jayanty

Lawyers’ Committee for

Civil Rights Under Law

1500 K Street NW,

Suite 900

Washington, D.C. 20005

James P. McLoughlin, Jr.

Counsel of Record

Mary K atherine Stukes

Pierce Werner

Moore & Van A llen

100 North Tryon Street,

Suite 4700

Charlotte, NC 28202

(704) 331-1000

jimmcloughlin@mvalaw.com

* Admitted in Pennsylvania

only. Practice limited to

matters before federal

courts.

Counsel for Amici Curiae

324108

i

TABLE OF CONTENTS

Page

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

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . vi

INTRODUCTION AND INTEREST

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

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

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

I.

Cong ress Has a Long- Standing and

Wholly Rational Reliance Interest in the

Durability of Chevron . . . . . . . . . . . . . . . . . . . . . . 5

A. C h e v r o n i s a C on s t it ut ion a l ly

Endued Doctrine Demonstrating the

Longstanding and Constitutionally

Correct Separation of Powers . . . . . . . . . . . 5

B. Cong ress’ Capacity to Leg islate

Ef fectively Depends on the

Institutiona l Compet ence of

Administrative Agencies to Build

Out Robust Statutory Protections . . . . . . . . 8

ii

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1.

Through comprehensive delegation,

Congress recognizes that agencies

have expertise, informed by data

and empirical analysis, that equip

them to develop comprehensive

civil rights enforcement schemes

and elucidate examples of conduct

that violates civil rights laws . . . . . . . . . 8

2. The Structure of the Administrative

State Incorporates Sufficient

Checks on an Agency’s Delegated

Authority to Ensure Executive

Action Remains Transparent

and Accountable to the Public

and the Co-Branches . . . . . . . . . . . . . . 10

C. W h e n D r a f t i n g C i v i l R i g h t s

Laws, Congress Legislates with a

Presumption of Deference Towards

Agency Judgments . . . . . . . . . . . . . . . . . . . . 13

1.

Chevron operates as a “background

principle” assumed by Congress

when it drafts civil rights laws . . . . . . 13

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2. Congress expressly delegated

rulemaking authority to HUD under

the Fair Housing Amendments Act

and to the Consumer Financial

Protection Bureau under the

Equal Credit Oppor tunity

Act, and the Court should not

disregard these delegations . . . . . . . . . 15

II. A b a n d o n i n g C h e v r o n D e f e r e n c e

Un d e r m i n e s C r i t i c a l P r o t e c t i o n s

Necessary to Advance The Civil Rights of

Vulnerable Communities . . . . . . . . . . . . . . . . . . . 19

A. Federal Agencies Such as HUD

Enhance the Protective Force of

Civil Rights Laws . . . . . . . . . . . . . . . . . . . . . 19

1.

HUD’s Regulatory Interpretation

of the FHA Captures Pernicious

Forms of Housing Discrimination

t he St at ut e Is De sig ned t o

Eradicate . . . . . . . . . . . . . . . . . . . . . . . . 19

2. HU D’s Reg u lat ions P rov ide

Accessibility and Design Standards

that Expand Housing Opportunities

for People with Disabilities . . . . . . . . . 21

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B. Federal Agencies Reduce Violence

A g a i nst Su r v ivor s of Domest ic

A bu s e C l a r i f y i n g t he P r o c e s s

t h r o u g h w h i c h S u r v i vo r s C a n

Vindicate Their Housing Rights . . . . . . . . .24

C. The Department of Labor’s Regulations

I mp l e m e nt i n g t h e Fa i r L a b o r

Standards Act Help Protect Historically

Disadvantaged Laborers . . . . . . . . . . . . . . . 27

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

v

TABLE OF APPENDICES

Page

A PPEN DI X — LIST OF A DDI TIONA L

AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074 (3d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 19

Baker v. F&F Inv.,

420 F.2d 1191 (7th Cir.), cert. denied,

400 U.S. 821 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Biden v. Missouri,

142 S. Ct. 647 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bos. Hous. Auth. v. Y.A.,

482 Mass. 240 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Bragdon v. Abbott,

524 U.S. 624, 642 (1998) . . . . . . . . . . . . . . . . . . . . . . . . 7

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

Defense Council, Inc.,

467 U.S. 837 (1984) . . . . . . . . . . . 1, 3, 4, 5, 6, 7, 8, 9, 14,

15, 18, 19, 32

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

City of Arlington v. FCC,

569 U.S. 290 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

vii

Cited Authorities

Page

Commissioner v.

Keystone Consol. Industries, Inc.,

508 U.S. 152 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

DHI Cherry Glen Assocs., L.P. v. Gutierrez,

46 Cal. App. 5th Supp. 1

(Cal. Super. Ct. App. Dep’t 2019) . . . . . . . . . . . . . . . . 26

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Fed. Commc’ns Comm’n v.

Prometheus Radio Project,

141 S. Ct. 1150 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gladstone Realtors v. Vill. Of Bellwood,

441 U.S. 91 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Hargraves v. Capital City Mortgage Corp.,

140 F. Supp. 2d 7 (D.D.C. 2000) . . . . . . . . . . . . . . . . . 18

Heights Cmty. Cong. v. Hilltop Realty, Inc.,

774 F.2d 135 (6th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 21

Horne v. Vi,

2018 U.S. Dist. LEXIS 11194

(N.D. Ga. March 20, 2018) . . . . . . . . . . . . . . . . . . . . . 18

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

Cited Authorities

Page

Laufman v. Oakley Building & Loan Co.,

408 F. Supp. 489 (S.D. Ohio 1976) . . . . . . . . . . . . . . . 17

Long Island Care at Home., Ltd. v. Coke,

551 U.S. 158 (2007) . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Maryland Casualty Co. v. United States,

251 U.S. 342 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Morton v. Ruiz,

415 U. S. 199 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

NAACP v. American Family Mut. Ins.,

978 F.2d 287 (7th Cir. 1992), cert. denied,

508 U.S. 907 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nationwide Mut. Ins. v. Cisneros,

52 F.3d 1351 (6th Cir. 1995), cert. denied,

516 U.S. 1140 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Potter v. Hall,

189 U.S. 292 (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ring v. First Interstate Mortgage, Inc.,

984 F.2d 924 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 17

Riordan v. Kempiners,

831 F.2d 690 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 19

ix

Cited Authorities

Page

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Trafficante v. Metropolitan Life Ins. Co.,

409 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v.

Cerecedo Hermanos y Compania,

209 U.S. 337 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Mead,

533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . . . . 3, 4, 7, 9

United States v. Moore,

95 U.S. 760 (1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Vowell & M’Clean,

9 U.S. 368 (1809) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc.,

435 U. S. 519 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

STATUTES AND REGULATIONS

5 U.S.C. § 551(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 U.S.C. § 553(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 U.S.C. § 553(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

x

Cited Authorities

Page

5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5 U.S.C. §§ 801-808 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

15 U.S.C. §§ 1691 – 1691f . . . . . . . . . . . . . . . . . . . . . . . . . 16

29 U.S.C. § 13(a)(15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

29 U.S.C. § 13(b)(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

29 U.S.C. §§ 201-219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

29 U.S.C. § 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

29 U.S.C. § 213(a)(15) . . . . . . . . . . . . . . . . . . . . . . 28, 29, 30

34 U.S.C. § 12471(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

34 U.S.C. § 12471(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

34 U.S.C. § 12471(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

34 U.S.C. § 12471(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

34 U.S.C. § 12491(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

34 U.S.C. § 12491(b)(3)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . 26

34 U.S.C. § 12491(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

xi

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34 U.S.C. § 12491(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

34 U.S.C. § 12491(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

42 U.S.C. § 3531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 3535(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 3601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. §§ 3601-3619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. § 3604 . . . . . . . . . . . . . . . . . . . . . . . . 4, 16, 20, 21

42 U.S.C. § 3604(f)(3)(C)(i) . . . . . . . . . . . . . . . . . . . . . . . .22

42 U.S.C. § 3604(f)(3)(C)(ii) . . . . . . . . . . . . . . . . . . . . . . . 22

42 U.S.C. § 3605 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16, 20

42 U.S.C. § 3606 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16, 20

42 U.S.C. § 3610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23

42 U.S.C. § 3614(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 3617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 20

42 U.S.C. § 12741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

xii

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12 C.F.R. § 1002.4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

12 C.F.R. § 1002.5(b-e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

12 C.F.R. § 1002.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

24 C.F.R. pt. 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20

24 C.F.R. § 5.2005(a)(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 25

24 C.F.R. § 5.2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

24 C.F.R. § 5.2009(b)(2)-(c) . . . . . . . . . . . . . . . . . . . . . . . 26

24 C.F.R. §§ 100.50-100.90 . . . . . . . . . . . . . . . . . . . . . . . . 20

24 C.F.R. § 100.70(c)(1)-(4) . . . . . . . . . . . . . . . . . . . . . . . . 20

24 C.F.R. § 100.70(c)(2)-(3) . . . . . . . . . . . . . . . . . . . . . . . . 21

24 C.F.R. §§ 100.110-135 . . . . . . . . . . . . . . . . . . . . . . . . . 17

24 C.F.R. §§ 100.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

24 C.F.R. § 100.205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

29 C.F.R. § 552.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

29 C.F.R. § 552.6(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

xiii

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Page

29 C.F.R. § 552.109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

54 Fed. Reg 3,240 (Jan. 23, 1989) . . . . . . . . . . . . . . . . . . 20

78 Fed. Reg. 60,454 (Oct. 1, 2013) . . . . . . . . . . . . . . . 29, 31

78 Fed. Reg. 60,458-70 . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

85 Fed. Reg. 78,957 (Dec. 8, 2020) . . . . . . . . . . . . . . . . . 23

Pub. L. No. 93-259 § 7, 88 Stat. 55 (1974) . . . . . . . . . . . 28

Pub. L. No. 100-430, tit. VIII, 102 Stat. 1619 (1988) . . 22

OTHER AUTHORITIES

A Brief Overview, Feb. 27, 2023, https://crsreports.

congress.gov/product/pdf/IF/IF10023 . . . . . . . . . . . 12

A. E. Benjamin, Consumer-Directed Services

at Home: A New Model for Persons with

Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

A.

S c a l i a , Ju di c i a l Defe r e n c e t o

Administrative Interpretations of Law,

1989 Duke L. J. 511, 516 (1989) . . . . . . . . . . 7, 8, 13, 14

A n n C hoi et a l ., L o n g Isl a n d D iv i d e d ,

Newsday (Nov. 17, 2019) . . . . . . . . . . . . . . . . . . . . . . . 20

xiv

Cited Authorities

Page

Bronx, HUDUSER (May 10, 2023), https://

w w w. hu d u s e r. g o v/ p o r t a l /c a s e s t u d i e s /

study-051023.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CDC (last v isited Sep. 12 , 2 02 3), https://

w w w.cdc.gov/ncbddd/disabilityandhealth/

disability-barriers.html . . . . . . . . . . . . . . . . . . . . . . . 22

Centers for Disease Control & Prevention, Common

Bar r iers to Par ticipation Exper ienced

by People with Disabilities . . . . . . . . . . . . . . . . . . . . 22

Congress, ASPE (May 13, 2003), http://aspe.

hhs.gov/​daltcp/​reports/​ltcwork.pdf . . . . . . . . . . . . . . 31

Do m estic Viol en ce, O f f ic e O n V iol e nc e

Against Women (Nov. 1, 2019) . . . . . . . . . . . . . . . . . . 24

Elena K ag a n a nd Dav id J. Ba r ron,

C h e v r o n’ s No n d e l e g a t i o n D o c t r i n e ,

2001 Sup. Ct. Rev. 201, 212, 223 (2001) . . . . . . . . . . . . 9

H i l a Sha m i r, Be twee n Ho m e an d Wo rk:

Assess in g th e D i str ib utive Ef fec t s of

Employment Law in Markets of Care,

30 Berkeley J. Emp. & Lab. L. 404 (2009) . . . . . . . .28

Home Care, NELP (2015), https://www.nelp.

o r g / w p - c o n t e n t / u p l o a d s / Ho m e - C a r e Misclassification-Fact-Sheet.pdf . . . . . . . . . . . . . . . . 30

xv

Cited Authorities

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Hou s i n g & Ur b a n D e ve lop me nt , PD& R

Mission and Background . . . . . . . . . . . . . . . . . . . . . 23

Jon Pynoos et al., Aging in Place, Housing,

and the Law, 16 Elder L. J. 77, 78 (2008) . . . . . . . . 29

Julie Lipitt, Protecting the Protectors: A Call for

Fair Working Conditions for Home Health Care

Workers, 19 Elder L. J. 219, 220 (2011) . . . . . . . 29, 30

Laura L. Rogers, Transitional Housing Programs

and Empowering Survivors of Domestic

Violence, O fficice O n Violence A ga inst

Women (Nov. 1, 2019), https://www.justice.gov/

ovw/blog/transitional-housing-programs-andempowering-survivors-domestic-violence . . . . . . . . 24

M. Herz & K.M. Stack, The False Allure of

the Anti-Accumulation Pr inciple,

102 B.U.L. Rev 925, 943, 946-49 (2022) . . . . . . . . . . . 6

Marc Linder, Farm Workers and the FLSA:

Racial Discrimination in the New Deal,

65 Tex. L. Rev. 1335 (June 1987) . . . . . . . . . . . . . . . 27

Ma rger y Aust i n T u r ner et a l., Ho u sin g

Discrimination Study: Analyzing Racial

and Ethnic Steering, HUDUSER (Oct. 1991) . . . . . 20

Matthew Desmond, Poor Black Women Are Evicted

at Alarming Rates, Setting Off a Chain of

Hardship, MacA rthur Foundation (2014) . . . . . . . 24

xvi

Cited Authorities

Page

Nat’l Emp. L. Project, Independent Contractor

Classification in Home Care, NELP (2015) . . . . . . 30

Policy Statement on Discrimination in Lending,

59 Fed. Reg. 18,266, 18,268 (April 15, 1995) . . . . . . 17

Rachel E. Barkow, The Wholesale Problem

with Congress: The Dangerous

Decline of Exper tise in the Legislative

Process, 90 Fordham L. Rev. 1029 (2021) . . . . . . . . . .9

Robert G. Schwemm and Jeffrey L. Taren

D i s c r e t i o n a r y P r i c i n g , Mo r t g a g e

Discr imination , and the Fair Housing

Act, 45 Harv. C.R.-C.L. L. Rev. 375 (2010) . . . . . . . 18

Susan B. Mettler, Federalism, Gender and the Fair

Labor Standards Act, 26 Polity 4, 635 (1994) . . . . . 27

The Congressional Review Act (CRA): A Brief

Overview, Feb. 27, 2023, https://crsreports.

congress.gov/product/pdf/IF/IF10023 . . . . . . . . . . . 12

Un d e r s t a n din g t h e Po w e r a n d Co n t r ol

W h eel, D o m e s t ic A bu s e I n t e r v e n t io n

Programs (Apr. 22, 2021) . . . . . . . . . . . . . . . . . . . . . . 24

U.S. Dep’t of Health and Human Serv’s, The

Future Supply of Long-Term Care Workers in

Relation to the Aging Baby Boom Generation:

Report to Congress, ASPE (May 13, 2003),

http://aspe.hhs.gov/daltcp/ reports/ ltcwork.pdf. . . 31-32

xvii

Cited Authorities

Page

U.S. Dep’t of Hous. & Urb. Dev.., Case Study:

Supportive Housing Helping Domestic Violence

Survivors and Their Children Recover and

Thr ive in the Bron x, HUDUSER (May

10, 2023), https://www.huduser.gov/portal/

casestudies/study-051023.html . . . . . . . . . . . . . . . . . 24

U. S . D e p a r t m e nt of Ho u s i n g & Ur b a n

Development, PD&R Mission and Background,

HUDUSER (last visited Sep. 12, 2023) . . . . . . . . . . 23

Vivien Hart, Minimum Wage Policy and Constit.

Inequality: the Paradox of the FLSA of 1938,

1 J. of Pol’y Hist. 3, 319, 327 (July 1989) . . . . . . . . . 27

1

INTRODUCTION AND INTEREST

OF AMICI CURIAE1

The amici curiae joining this brief are civil rights

organizations committed to ensuring that federal

administrative agencies make real the promises of

our nation’s civil rights laws through Congressionally

authorized rulemaking and enforcement. They therefore

have an interest in this Court’s decision on the continued

viability of Chevron deference, a doctrine delivering

greater certainty, predictability, and appropriate

allocation of authority in addressing how statutes are

applied in particular contexts to and by the bodies

that have the greatest expertise and ability to consider

empirical data. The civil rights community relies upon

agency rulemaking to clarify the scope of individuals’

rights to those who may be subjected to discrimination

and to increase the likelihood that regulated entities

will refrain from engaging in unlawful conduct because

of education and training informed by the content of

regulations. A decision overturning Chevron risks making

this critical work materially more difficult and would

provide no real countervailing benefit.

The Lawyers’ Committee for Civil Rights Under

Law (“Lawyers’ Committee”) is a nonprofit civil rights

organization founded in 1963 by the leaders of the

American bar, at the request of President Kennedy,

to secure equal justice for all through the rule of law,

1. Pursuant to Supreme Court Rule 37.6, amici affirm that

no counsel for a party authored this brief in whole or in part and

that no person other than amici and their counsel made a monetary

contribution to its preparation or submission.

2

targeting the inequities confronting Black Americans

and other people of color. The Lawyers’ Committee uses

legal advocacy to achieve racial justice to ensure that

Black people and other people of color have the voice,

opportunity, and power to make the promises of our

democracy real. The Lawyers’ Committee has for decades

advocated for federal administrative agencies to play

a robust role in the implementation of our nation’s civil

rights laws, both through rulemaking that clarifies the

scope of anti-discrimination protections and by engaging

in proactive enforcement. Administrative agencies play a

crucial role in advancing the Lawyers’ Committee’s goal

of preventing discrimination in employment, housing,

education, and other areas that affect broader access to

opportunity.

The Lawyers’ Committee is joined by additional civil

rights organizations identified in Appendix A.

SUMMARY OF ARGUMENT

Congress has designed a robust system of federal civil

rights protections and complementary laws that provide

significant protections to communities of color, women,

persons with disabilities, and other groups that have

historically been subjected to discrimination. Congress

entrusts federal agencies with the responsibility of

developing the infrastructure necessary to make those

rights real. Enabled by clear congressional delegations

of authority, federal agencies have translated Congress’s

aims into workable standards that clarify to the public

what the law requires in a level of detail essential for

those laws to achieve the intent of Congress. These

regulations yield benefits for individuals and groups that

3

have historically been subject to discrimination, regulated

entities that must understand their obligations under the

law, and courts that must interpret and enforce these laws.

Rulemaking of this kind has been crucial to the

advancement of civil rights to the benefit of the entirety

of our society. Notable agency regulations address explicit

illustrations of conduct that violates anti-discrimination

laws and other key statutes. Such regulations fulfil the

legislative aims of Congress in enacting landmark laws

such as the Fair Housing Act (“FHA”), the Fair Labor

Standards Act (“FLSA”), and the Violence Against Women

Act (“VAWA”). In the absence of agency rulemaking

that addresses points on which underlying statutes are

silent or purposely broad, our society’s ability to realize

the benefits of the protections enshrined in this nation’s

landmark civil rights statutes would be significantly

impeded.

Any assessment of the Chevron doctrine, first defined

in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), and refined most

pertinently in United States v. Mead, 533 U.S. 218 (2001),

must give due weight to the benefits of its requirement

that courts defer to agency regulations that fill gaps or

resolve ambiguities in statutes and that are reasonable.

In Mead Corp., this Court held that “administrative

implementation of a particular statutory provision

qualifies for Chevron deference when it appears that

Congress delegated authority to the agency generally to

make rules carrying the force of law, and that the agency

interpretation claiming deference was promulgated in

the exercise of that authority.” 533 U.S. at 226. Even in

the absence of such predicates, some deference to the

4

agency is warranted nonetheless, “given the ‘specialized

experience and broader investigations and information’

available to the agency and given the value of uniformity

in its administrative and judicial understandings of what

a national law requires.” Id. at 234. History demonstrates

that deference to the hard-earned expertise of agencies

carries with it substantial benefits.

Congress acts with a rational appreciation of the

complexity of interpretation and implementation of its

statutes, a pragmatic reliance on the rulemaking process,

and a reasoned determination that implementation

requires some leeway for agencies to interpret statutes

that cannot exhaustively map out every detail of the

vast landscape of issues Congress chooses to address.

Congress does so because it is aware that it does not

have the depth of expertise or thousands of personnel

necessary to replicate the expertise of the agencies that

implement its mandates. Congress also understands that

if the interpretation of a statute by the executive branch

is construed as unreasonable by the judicial branch under

the current state of the law, the interpretation of the

judicial branch will control. Properly applied, the Chevron

doctrine is of vital consequence to the functional operation

of government.

For those who rely upon the protections of the

regulations that implement the civil rights, fair housing,

and workplace protections that follow from statutes

such as the FHA, 42 U.S.C. §§ 3601-3619, and FLSA, 29

U.S.C. §§ 201-219, and for those who must operate within

the regulations implementing those statutes, Chevron

deference has far-reaching benefits of certainty and

adaptability to changed circumstances and new data.

5

This Court should decline to overturn Chevron, a

decision adopted unanimously by the deciding justices,

which embodies principles that have successfully guided

the federal courts through a remarkably broad array

of controversies for decades, and which facilitates the

effective implementation of civil rights laws.

ARGUMENT

I.

Congress Has a Long-Standing and Wholly Rational

Reliance Interest in the Durability of Chevron.

A.

Chevron is a Constitutionally Endued Doctrine

Demonst rating the L ong st a nd ing a nd

Constitutionally Correct Separation of Powers.

Deference to the executive branch is traceable to the

origins of the Republic. See United States v. Vowell &

M’Clean, 9 U.S. 368 (1809) (Marshall, J.) (discussing that

the Court should “respect[] the uniform construction” of

agencies on “doubtful questions”); Maryland Casualty Co.

v. United States, 251 U.S. 342, 349 (1920) (“It is settled by

many recent decisions of this court that a regulation by a

department of government, addressed to and reasonably

adapted to the enforcement of an act of Congress, the

administration of which is confided to such department,

has the force and effect of law if it be not in conflict with

express statutory provision.”).

The anti-accumulationist view that, in light of

Federalist No. 47, the executive branch may not exercise

any quasi-judicial or legislative functions without

running afoul of the separation of powers principles in

the Constitution is a profound misunderstanding of the

6

document and the separation of powers as conceived by

the Framers. See City of Arlington V. FCC, 569 U.S.

290, 304, n.4 (2013) (Scalia J.) (When agencies exercise

“legislative” and “judicial” power, “[t]hese activities take

‘legislative’ and ‘judicial’ forms, but they are exercises of

- indeed, under our constitutional structure they must be

exercises of - the ‘executive Power.’”); see also M. Herz &

K.M. Stack, The False Allure of the Anti-Accumulation

Principle, 102 B.U.L. Rev 925, 943, 946-49 (2022).

Congress could amend the Administrative Procedure

Act (“APA”) to overrule Chevron but has chosen not to do

so. In continuing to leave Chevron intact for decades, the

legislature has been neither negligent nor incompetent.

As this Court’s many prior decisions applying Chevron

have concluded:

Chevron is rooted in a background presumption

of congressional intent: namely, “that Congress,

when it left ambiguity in a statute” administered

by an agency, “understood that the ambiguity

would be resolved, first and foremost, by the

agency, and desired the agency (rather than the

courts) to possess whatever degree of discretion

the ambiguity allows.” Chevron thus provides a

stable background rule against which Congress

can legislate: Statutory ambiguities will be

resolved, within the bounds of reasonable

interpretation, not by the courts but by the

administering agency Congress knows to speak

in plain terms when it wishes to circumscribe,

and in capacious terms when it wishes to

enlarge, agency discretion.

7

City of Arlington, 569 U.S. at 296 (internal citations

omitted).

“Broad delegation to the Executive is the hallmark

of the modern administrative state; agency rulemaking

powers are the rule rather than, as they once were,

the exception....” A. Scalia, Judicial Deference to

Administrative Interpretations of Law, 1989 Duke L. J.

511, 516 (1989). One can bemoan that decision by Congress,

but one cannot ignore it in an effort to frustrate that

Congressional prerogative by elevating that choice to a

constitutional infirmity.

Overruling Chevron, and in the process effecting a

total reversal of the course that this Court has charted for

decades, is unnecessary after Mead Corp. and potentially

reckless. “If the Chevron rule is not a 100% accurate

estimation of modern congressional intent, the prior caseby-case evaluation was not so either-and was becoming

less and less so, as the sheer volume of modern dockets

made it less and less possible for the Supreme Court to

police diverse application of an ineffable rule.” Id. at 517.

And when “the fair measure of deference” is held to vary

with the circumstances based upon the “agency’s care, its

consistency, formality, and relative expertness, and to the

persuasiveness of the agency’s position,” id. at 228, and

with the inescapable acknowledgment that “[t]he wellreasoned views of the agencies implementing a statute

‘constitute a body of experience and informed judgment

to which courts and litigants may properly resort for

guidance,” id. at 227 (quoting Bragdon v. Abbott, 524 U.S.

624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U.S.

134, 139-140 (1944)), reversal of Chevron risks leaving no

place for agency expertise or the Congressional delegation

8

of authority, a position which cannot be reconciled with

common sense or this Court’s precedents going back to

1809. See Vowell, 9 U.S. at 368.

A mong the many casualties befallen from the

abandonment of established principles of deference will

first be the public—especially the most vulnerable—

who will face uncertainty in exercising their essential

protections, and second, the federal courts, which absent

deference to agency determinations, will be flooded with

litigation by parties emboldened by the news that the

experience and expertise of the executive branch will not

be given deference.

B. Congress’ Capacity to Legislate Effectively

Depends on the Institutional Competence of

Administrative Agencies to Build Out Robust

Statutory Protections.

1.

Through comprehensive delegation,

Congress recognizes that agencies have

expertise, informed by data and empirical

analysis, that equip them to develop

comprehensive civil rights enforcement

schemes and elucidate examples of conduct

that violates civil rights laws.

Often described as the ‘practical justification for the

Chevron doctrine,’ see e.g., Scalia, supra, at 514—though

admittedly not its “theoretical justification”—agencies’

institutional competence to effectively implement the

laws enacted by Congress serves as a compelling reason

not to overturn Chevron. Indeed, the Court in Chevron

acknowledged that agencies—as experts in their fields and

9

as politically accountable entities—are better suited than

Congress to work out the minutia required to effectuate

statutes and are better suited than courts to reconcile

policy choices necessary for the administration of federal

laws. See Chevron, 467 U.S. at 865-66. The Chevron

doctrine recognizes the functional strengths of agencies

in the context of interpretive rulemaking as “mak[ing] for

good government” and “stressed…the virtues of placing

interpretive decisions in the hands of accountable and

knowledgeable administrators.” Elena Kagan and David

J. Barron, Chevron’s Nondelegation Doctrine, 2001 Sup.

Ct. Rev. 201, 212, 223 (2001).

Congress does not have the time, staff resources,

or subject matter expertise to include the detail and

complexity in legislation that executive agencies are

well-positioned to spell out through rulemaking. Federal

agencies have vast technical expertise, experience, and

resources in their respective fields, see, e.g., Chevron,

467 U.S. at 865; Mead Corp., 533 U.S. at 234 (recognizing

agencies’ specialized experience and ability to investigate

and collect information); Kisor v. Wilkie, 139 S. Ct.

2400, 2413 (2019) (recognizing the substantive technical

expertise of agencies required to administer regulations

in complex circumstances), and the modern legislature

does not. See Rachel E. Barkow, The Wholesale Problem

with Congress: The Dangerous Decline of Expertise in

the Legislative Process, 90 Fordham L. Rev. 1029, 1048-49

(2021) (discussing the decline in number and substance of

congressional hearings since the 1970s).

10

2.

The Structure of the Administrative State

Incorporates Sufficient Checks on an

Agency’s Delegated Authority to Ensure

Executive Action Remains Transparent

and Accountable to the Public and the

Co-Branches.

When Congress grants an agency rulemaking

authority, the agency still must follow the APA to

promulgate rules. The APA specifies the procedures

under which agencies develop and implement rules as well

as a framework for judicial review of the exercise of this

delegated authority to ensure agencies act appropriately

within their power.

The APA limits agencies’ delegated authority in

several ways. First, the APA’s “notice and comment”

requirements for rulemaking prescribe transparency

through public involvement, allowing a critical opportunity

for the public to inform agencies about the impact of a

proposed agency action.

The APA’s rulemaking procedures are triggered when

agencies engage in the process of “formulating, amending,

or repealing a rule.” 5 U.S.C. § 551(5). An agency must

initiate this process first by notifying the public: the agency

must issue a “[g]eneral notice of proposed rulemaking,”

ordinarily by publication in the Federal Register. 5 U.S.C.

§ 553(b). Then, in most instances, the agency must “give

interested persons an opportunity to participate in the

rule making through submission of written data, views,

or arguments.” 5 U.S.C. § 553(c). Agencies are required

to take seriously comments received by responding to

significant comments. See Citizens to Preserve Overton

11

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Once an

agency issues its final rule, the rule must include “a concise

general statement of [its] basis and purpose.” 5 U.S.C.

§ 553(c).

The APA requires agencies not only to consider the

varying interests of those to be regulated by their actions,

but to explain the basis for its action and how it accounted

for those interests in doing so. This aspect of rulemaking

is critical for agency actions affecting civil rights, as

protected individuals and regulated entities both have a

direct opportunity to drive agency decision-making in the

identification and redress of conduct that violates federal

civil rights laws. The requirement to directly consider the

input of individuals and groups engaged in the subject

being regulated is unique to this executive function—no

such requirement exists in proceedings before the judicial

branch, which require only standing before a tribunal, or

in interactions with the legislative branch, which rely on

representative decision making. Through the APA, agency

rulemaking is transparent and accountable to the public

to a unique degree.

The procedural requirements for rulemaking under

the APA are extensive. As a result, “[r]ules issued through

the notice-and-comment process are often referred to

as ‘legislative rules’ because they have the ‘force and

effect of law.’” Perez v. Mortgage Bankers Ass’n, 575

U.S. 92 (2015) (quoting Chrysler Corp. v. Brown, 441 U.S.

281–303 (1979)). Because of the accountability built into

the rulemaking process, these rules are rightly afforded

deference. So long as an agency complies with the APA’s

rulemaking procedures in creating its own rules and

procedures, a court may not “‘impose upon [an] agency

12

its own notion of which procedures are ‘best’ or most

likely to further some vague, undefined public good.’

To do otherwise would violate ‘the very basic tenet of

administrative law that agencies should be free to fashion

their own rules of procedure.’” Perez, 575 U.S. at 101-02

(quoting Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U. S. 519, 549 (1978)).

The APA speaks also to judicial review, communicating

Congress’s view that such review is not, and should not be,

an unfettered right to undo agency actions that comply

with the procedures of the APA and Congressional intent.

See 5 U.S.C. § 706. The detailed mapping of judicial review

in § 706 confirms the important role of agency delegation

and deference to agency discretion, while providing a

tailored mechanism to overturn agency actions that exceed

that authority: the arbitrary-and-capricious standard has

been used effectively by this Court its review of recent

regulations and policies. See, e.g., Biden v. Missouri, 142

S. Ct. 647, 653–654 (2022) (per curiam); Fed. Commc’ns

Comm’n v. Prometheus Radio Project, 141 S. Ct. 1150

(2021); Encino Motorcars, LLC v. Navarro, 579 U.S. 211,

215 (2016).

Congress retains the authority to step in. The

Congressional Review Act (“CRA”) provides an opportunity

for direct Congressional intervention to undo agency

actions with which the legislative branch disagrees. See

5 U.S.C. §§ 801-808. 2 Any challenge to Chevron deference

2. The CRA has been in effect since 1996 and has been used

to overturn a total of 20 rules. Congressional Research Service,

The Congressional Review Act (CRA): A Brief Overview, Feb. 27,

2023, https://crsreports.congress.gov/product/pdf/IF/IF10023.

13

must acknowledge the reality of the CRA, the APA’s

procedures, and the voices of others with vested interests

who have expressed views contrary to others, including

through the APA’s notice-and-comment process. Congress

could intervene in any dispute over the implementation of

its statutes at any time but chooses in the vast majority of

cases not to do so. This Court should not give insufficient

weight to the complexity of governance that is surely a

factor in those Congressional decisions and, as a result,

give too little credit to the foundation and benefits of

Chevron deference.

C.

When Drafting Civil Rights Laws, Congress

Legislates with a Presumption of Deference

Towards Agency Judgments.

1.

Chevron operates as a “background

principle” assumed by Congress when it

drafts civil rights laws.

Congress can legislate to meet the needs of the

complex and growing American society because it

knows that the administrative agencies charged with

implementation of those laws will take up the torch and

administer Congress’s purpose. Morton v. Ruiz, 415 U. S.

199, 231 (1974) (“The power of an administrative agency

to administer a congressionally created . . . program

necessarily requires the formulation of policy and the

making of rules to fill any gap left, implicitly or explicitly,

by Congress.”). “Congress now knows that the ambiguities

it creates, whether intentionally or unintentionally, will be

resolved, within the bounds of permissible interpretation,

not by the courts but by a particular agency, whose policy

biases will ordinarily be known.” Scalia, supra, at 517.

14

Deference to administrative agency expertise began

long before the Chevron ruling. See, e.g., United States v.

Moore, 95 U.S. 760, 763 (1877) (“The construction given

to a statute by those charged with the duty of executing

it is always entitled to the most respectful consideration,

and ought not to be overruled without cogent reasons.”);

Potter v. Hall, 189 U.S. 292, 300 (1903) (“We have said

that when the meaning of a statute is doubtful great weight

should be given to the construction placed upon it by the

department charged with its execution.”); United States v.

Cerecedo Hermanos y Compania, 209 U.S. 337, 339 (1908)

(“In the construction of a doubtful and ambiguous law, the

contemporaneous construction of those who were called

upon to act under the law, and were appointed to carry its

provisions into effect, is entitled to very great respect.”).

Abandoning Chevron deference would disrupt the

status quo relied upon by Congress and impede the

modern functioning of a complex government addressing

important issues such as civil rights. Chevron deference

empowers Congress to draft laws regarding civil rights

without needing to anticipate every detail of what the

law will require to be implemented, leaving the filling

of gaps to the expertise of the agency with delegated

authority. The doctrine has allowed Congress to focus on

the overarching needs of society because administrative

agencies are able to use their expertise to execute the

details. Scalia, supra, at 514 (“Agencies are more likely

to know what is required of the statute than the courts

based on subject matter expertise and familiarity with

the legislation in question.”). Furthermore, this Court

has recognized that Congress has been aware of and

legislated based on the precedent of deference to agency

interpretations of statutes. See, e.g., Nat’l Cable &

15

Telecommunications Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 992 (2005) (noting Congress drafts terms

in statutes with consideration to regulatory history

defining such term); Commissioner v. Keystone Consol.

Industries, Inc., 508 U.S. 152, 159, (1993) (noting the

presumption that Congress is aware of “settled judicial

and administrative interpretation[s]” of terms when it

enacts a statute).

2.

Congress expressly delegated rulemaking

authority to HUD under the Fair Housing

Amendments Act and to the Consumer

Financial Protection Bureau under

the Equal Credit Opportunity Act, and

the Court should not disregard these

delegations.

Chevron deference is essential to the functioning of our

civil rights laws. The protections against discrimination

in various aspects of our lives, from banking to housing

to employment to voting, depend on vigorous by agencies

to which Chevron deference is integral. Were this Court

to do away with the Chevron doctrine, uncertainty would

surround agency regulation advancing the protections

of core components of the Civil Rights Act and similar

enactments, potentially limiting the authority and efficacy

of agencies such as the Department of Housing and Urban

Development (“HUD”), Consumer Financial Protection

Bureau (“CFPB”), and the Department of Justice to act

as Congress intended. The Court should not disrupt this

delegation by upending the presumption of deference, as

the result would be more far-reaching than a decrease

in the effectiveness of regulations protecting Atlantic

herring populations and the livelihoods of those who

16

harvest them, but in compromised protections for people

seeking a place to call home, lines of credit, or reliable

employment—to name a few.

The FHA outlaws discrimination in housing on the

basis of race, color, religion, sex, national origin, familial

status, and disability, 42 U.S.C. §§ 3604-3606, and the

Equal Credit Opportunity Act (“ECOA”), administered

by CFPB, enhances this protection of civil rights in

housing by banning discrimination in in all types of

credit transactions, including home mortgages, on similar

grounds. 15 U.S.C. §§ 1691 – 1691f. When Congress

amended the FHA in 1988, it gave broad rulemaking

authority to HUD to promulgate rules to “carry out” the

Act, id. § 3614a, and, independent of the FHA, Congress

has assigned to the Secretary of HUD the power to “make

such rules and regulations as may be necessary to carry

out [their] functions, powers, and duties” in its organic

statute. Id. § 3535(d). Congress has thereby made clear its

intent to arm HUD with robust authority to promulgate

regulations “to provide…for fair housing throughout the

United States” and to ensure “the general welfare and

security of the Nation and the health and living standards

of our people” by “eradicate[ing] discriminatory practices

within a sector of our Nation’s economy.” See Id. §§ 3601,

3531; Texas Dep’t of Hous. & Cmty. Affs., 576 U.S. at 539.

Even 12 years before its articulation of the Chevron

doctrine this Court recognized the language of the

FHA to be “broad and inclusive,” and HUD’s consistent

administration and construction of the FHA to be “entitled

to great weight,” Trafficante v. Metropolitan Life Ins.

Co., 409 U.S. 205, 209-10 (1972), and “command[ing of]

considerable deference.” Gladstone Realtors v. Vill. Of

17

Bellwood, 441 U.S. 91, 107 (1979). This enables HUD to

promulgate particularized regulations contained within

24 C.F.R. pt. 100 to address the intent of Congress to

combat housing discrimination through the FHA in

an array of contexts necessary to securing Congress’s

objectives, which CFPB has done as well to regulate

lenders’ behavior. See, e.g., 12 C.F.R. § 1002.4(b); 12 C.F.R.

§ 1002.5(b-e); 12 C.F.R. § 1002.6.

Because housing discrimination manifests in different

ways depending on the local context and is constantly

evolving, HUD and CFPB must be afforded deference in

promulgating regulations to address it, in fulfillment of

the duties and responsibilities imposed by Congress. To

illustrate this point, the regulations of both the FHA and

ECOA outlaw the discriminatory practice of “redlining,”

which is the refusal to make residential loans or imposition

of more onerous terms on loans made because of the

predominant race or national origin of the residents of

the neighborhood in which the property is located. See

Policy Statement on Discrimination in Lending, 59

Fed. Reg. 18,266, 18,268 (April 15, 1995); 24 C.F.R. §§

100.110-135 (unlawful discriminatory practices); cf. e.g.,

Nationwide Mut. Ins. v. Cisneros, 52 F.3d 1351 (6th Cir.

1995) (insurance redlining), cert. denied, 516 U.S. 1140

(1996); NAACP v. American Family Mut. Ins., 978 F.2d

287 (7th Cir. 1992) (same), cert. denied, 508 U.S. 907 (1993);

Ring v. First Interstate Mortgage, Inc., 984 F.2d 924

(8th Cir. 1993) (mortgage redlining); Laufman v. Oakley

Building & Loan Co., 408 F. Supp. 489 (S.D. Ohio 1976)

(mortgage redlining). Unfortunately, the history of the

fight for civil rights teaches that one door frequently

opens when another is closed, and alternative forms of

housing discrimination emerge to circumvent existing

18

regulations; for example, “reverse redlining” is a type of

discrimination not foreseen by Congress in the FHA and

ECOA, that involves targeted, predatory lending of “too

much easy access to high-cost credit” to communities of

color and Black neighborhoods in particular, rather than

the outright denial of credit. See Robert G. Schwemm,

Jeffrey L. Taren, Discretionary Pricing, Mortgage

Discrimination, and the Fair Housing Act, 45 H arv.

C.R.-C.L. L. Rev. 375, 392 (2010) (citing Hargraves v.

Capital City Mortgage Corp., 140 F. Supp. 2d 7 (D.D.C.

2000)). Courts have acknowledged the existence of this

practice and its potential violation of the FHA. See, e.g.,

Baker v. F&F Inv., 420 F.2d 1191 (7th Cir.), cert. denied, 400

U.S. 821 (1970); Horne v. Vi, 2018 U.S. Dist. LEXIS 11194

(N.D. Ga. March 20, 2018) (setting forth the elements of a

reverse redlining claim in the Eleventh Circuit).

Agency authority is essential to protecting Americans

from both traditional redlining and reverse redlining, and

enforcing the FHA and ECOA as the regulations describe

above provides guidance to the courts—which are not

designed to provide timely policy responses to newly

developing discriminatory practices—as to the illegality

of those practices. The elimination of the Chevron doctrine

from U.S. jurisprudence could shift the onus of competent

administration of these and similar protections from

well-equipped agencies to the courts. However, it is not

the agencies that will suffer the inequities of housing

insecurity, abusive debt, or unemployment. Rather, the

uncertainty resulting from the erosion of agency authority

will harm ordinary individuals and families to the

disproportionate detriment of the people of color, women,

and persons with disabilities. The wholesale abandoning of

Chevron deference will certainly do more harm than good.

19

II. Abandoning Chevron Deference Undermines

Critical Protections Necessary to Advance The

Civil Rights of Vulnerable Communities.

A.

Federal Agencies Such as HUD Enhance the

Protective Force of Civil Rights Laws.

1.

HUD’s Regulatory Interpretation of

the FHA Captures Pernicious Forms of

Housing Discrimination the Statute Is

Designed to Eradicate.

HUD’s administration of the FHA is just one example

of the beneficial impact of agencies implementing broad

but necessary non-specific federal statutes via regulatory

enactments and enforcement, and the timeliness,

effectiveness, and benefits of doing so could be undermined

if Chevron deference is abandoned. There is strong

consensus among the federal courts that those motivated

by a discriminatory purpose rarely admit their invidious

intent publicly. Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074, 1082 (3d Cir. 1996) (explaining that while

discriminatory conduct persists, violators have learned not

to leave the proverbial “smoking gun” behind”); Riordan v.

Kempiners, 831 F.2d 690, 697 (7th Cir. 1987) (recognizing

that “[d]efendants of even minimal sophistication will

neither admit discriminatory animus or leave a paper trail

demonstrating it”). The flexibility afforded to agencies like

HUD ensures they can act nimbly in the face of evolving

threats to civil rights crafted to avoid detection. Through

the FHA, as amended in 1988, Congress empowers HUD

to issue regulations in furtherance of the statutory goal

of eliminating discrimination in the housing market and

pursuant to statutory provisions that prohibit certain

20

conduct. 42 U.S.C. § 3614(a); see also 42 U.S.C. §§ 3604,

3605, 3606, 3617. The statute broadly describes the

type of discriminatory activities it seeks to outlaw, but

HUD’s regulations translate them into more discernably

enforceable directives. 24 C.F.R. Pt. 100.

HUD supplemented this broad proscription by

identifying examples of unlawful conduct that the

agency has recognized, through its experience, as both

inconsistent with Congress’s goals and as violative of

the FHA upon application of the tests commonly used by

courts to determine whether discrimination has occurred.

24 C.F.R. §§ 100.50-100.90; 54 Fed. Reg 3,240 (Jan. 23,

1989) (discussing regulatory purpose to illustrate practices

prohibited by FHA). The methods of discrimination are so

varied that the FHA seldom identifies specific practices.

For example, HUD has consistently interpreted 42 U.S.C.

§ 3604 to prohibit the practice of “steering” based on

protected characteristics, which HUD recognized as a

pervasive discriminatory housing practice engaged in by

real estate brokers, landlords, and property managers.

24 C.F.R. § 100.70(c)(1)-(4); Margery Austin Turner

et al., Housing Discrimination Study: Analyzing

Racial and Ethnic Steering, HUDUSER (Oct. 1991),

Steering remains all too common today. Ann Choi et al.,

Long Island Divided, Newsday (Nov. 17, 2019), https://

projects.newsday.com/long-island/real-estate-agentsinvestigation/. The Newsday data revealed that in nearly

40 percent of paired tests, real estate brokers treated

Black home seekers worse than white home seekers by

informing Black home seekers of half the listings of white

home seekers and routinely limiting the scope of listings

based on conformity of the individual’s race with the

residential patterns of a given neighborhood. Id.

21

In response, HUD’s regulations target fine-grained

examples of steering practices known to be common from

its experience. For instance, HUD’s regulations prohibit

specific acts like “exaggerating drawbacks” or withholding

“information on desirable features of a dwelling, or of a

community neighborhood, or development” to “discourage

the purchase or rental of a dwelling because of race,

color, religion, sex, handicap, familial status, or national

origin.” 24 C.F.R. § 100.70(c)(2)-(3). The Act does not ban

these practices by name; in fact it is silent on whether

steering, per se, is prohibited, but the statute’s description

on the types of discriminatory conduct that, when applied,

logically leads to the conclusion steering is prohibited.

42 U.S.C. § 3604; see also Gladstone Realtors, 441 U.S.

at 111 (permitting steering claim that defendant’s “sales

practices actually have begun to rob [the neighborhood]

of its racial balance and stability”); Heights Cmty. Cong.

v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985)

(affirming steering as a violation of the FHA in accordance

with Supreme Court precedent).

For victims of discrimination and their advocates,

the regulations make it easier to know their rights and

streamline the administrative enforcement process. For

those in the real estate industry, the regulations make

it easier to avoid engaging in unlawful conduct through

ignorance and facilitate effective training and education.

2.

HUD’s Regulations Provide Accessibility

and Design Standards that Expand

Housing Opportunities for People with

Disabilities.

W hen Cong ress amended the FH A to confer

rulemaking authority on HUD, Congress also enacted

22

new substantive protections to ensure equal housing

opportunity for persons with disabilities. Pub. L. No.

100-430, tit. VIII, 102 Stat. 1619 (1988). Most relevant

here, Congress required the design and construction of

covered multifamily dwellings in accordance with certain

accessibility standards. 42 U.S.C. § 3604(f)(3)(C). For

instance, § 3604(f)(3)(C)(i) states “the public use and

common use portions of such dwellings [must be] readily

accessible to and usable by…persons [with disabilities],”

and § 3604(f)(3)(C)(ii) requires doors be “sufficiently

wide to allow passage by…persons [with disabilities] in

wheelchairs,” but Congress gave no further guidance

on what areas are “common” and was silent on precise

doorframe metrics.

HUD has filled in these gaps through rulemaking.

24 C.F.R. §§ 100.201, 100.205. Reading the regulations,

the definitions may seem mundane, but they are of real

consequence—even in the context of a refuse room as a

“common use area.” For example, these regulations allow

a wheelchair user to understand their rights of access

and for multifamily developers to understand unclear

accessibility requirements resolved by HUD’s definition.

HUD’s rulemaking reinforces the independence of a

person with a disability in undertaking an activity of

daily living and avoids unnecessary litigation risk for the

developer. See Centers for Disease Control & Prevention,

Common Barriers to Participation Experienced by

People with Disabilities, CDC (last visited Sep. 12,

2023), https://www.cdc.gov/ncbddd/disabilityandhealth/

disability-barriers.html.

It would be unrealistic to expect Congress to codify

this level of detail, especially when combined with a similar

23

level of regulatory detail as applied to other technical

facets of design and construction such as ramp gradients

and countertop heights, into statute. Instead, allowing

HUD to elucidate these specifications by regulation is a

sound approach. In addition to its civil rights expertise,

see 42 U.S.C. § 12741; 42 U.S.C. § 3610 (charging the

Secretary with investigating administrative complaints

alleging violations of the FHA), HUD is deeply involved

in the development of multifamily housing through its

administration of grant programs, and has dedicated

staff to engage in empirical study of pressing issues

in the housing market. U.S. Department of Housing &

Urban Development, PD&R Mission and Background,

HUDUSER (last visited Sep. 12, 2023), https://www.

huduser.gov/portal/about/mission_and_background.html.

Thus, HUD can make decisions like those reflected in 24

C.F.R. § 100.205 in a thoughtful, data-driven manner.

Leaving such details open in the statutory text while

empowering HUD to fill them in through rulemaking

also ensures that the law keeps pace with changes in

technology, design, and construction methods. See Fair

Housing Act Design and Construction Requirements;

Adoption of Additional Safe Harbors, 85 Fed. Reg. 78,957

(Dec. 8, 2020) (designating new editions of the International

Building Code as safe harbors). Such adaptability is

furthered by Chevron deference, so each evolution does

not become the subject of litigation by interests intent on

disrupting the enforcement of the FHA or whose economic

interests make them resistant to ongoing improvement

of standards. This is true across the federal landscape.

24

B. Federal Agencies Reduce Violence Against

Sur vivors of Domestic Abuse Clarifying

the Process through which Survivors Can

Vindicate Their Housing Rights.

The Violence Against Women Act (“VAWA”), most

recently reauthorized in 2022, explicitly recognizes the

housing precarity that survivors of domestic violence

endure and the impossible choice they must often confront

between remaining with an abuser and experiencing

homelessness. 34 U.S.C. § 12471(12); U.S. Dep’t of Hous.

& Urb. Dev.., Case Study: Supportive Housing Helping

Domestic Violence Survivors and Their Children

Recover and Thrive in the Bronx, HUDUSER (May

10, 2023), https://www.huduser.gov/portal/casestudies/

study-051023.html; Matthew Desmond, Poor Black Women

Are Evicted at Alarming Rates, Setting Off a Chain

of Hardship, M ac A rthur Foundation (2014), https://

www.macfound.org/media/files/hhm_research_brief_-_

poor_black_women_are_evicted_at_alarming _rates.

pdf. Given the frequency with which abusers manipulate

finances to control their victims, Congress determined

that access to housing is commonly weaponized in abusive

relationships, and while the Act covers all individuals

regardless of gender, it is well documented that women are

disproportionately likely to experience domestic violence.

34 U.S.C. § 12471(10); Laura L. Rogers, Transitional

Housing Programs and Empowering Survivors of

Domestic Violence, O ffice O n Violence A ga inst

Women (Nov. 1, 2019), https://w w w.justice.gov/ovw/

blog/transitional-housing-programs-and-empoweringsurvivors-domestic-violence; Understanding the Power

and Control Wheel, D omestic A buse I nterv ention

Programs (Apr. 22, 2021), https://www.theduluthmodel.

25

org/wheels/. Exacerbating this trend, Congress found that

survivors often faced further victimization when landlords

reject applicants based on their status as survivors or

evict them for domestic violence crimes perpetrated

against them. 34 U.S.C. § 12471(3). Significant among

Congress’s reasons for passing VAWA was its legislative

finding of “strong links” between domestic violence and

homelessness as evidenced by numerous studies including

one estimating that around 44 percent of unhoused

individuals traced their lack of housing to this source.

34 U.S.C. § 12471(1). To reduce domestic violence and

prevent homelessness, Congress codified housing rights

for survivors in federally assisted housing and enlisted the

agencies responsible for administering these programs,

including HUD, to “implement” these federal protections.

34 U.S.C. § 12491(b); 34 § U.S.C. 12491(g).

While VAWA states what conduct violates it, as well

as who may avail themselves of the law’s protections,

the statute does not describe in detail how a survivor

can invoke these protections effectively. For instance,

the statute authorizes HUD to “develop a notice of the

rights” of survivors requiring federally assisted landlords

to provide that notice to their tenants, but it is silent on

the precise content of that notice. 34 U.S.C. § 12491(d)

(1)-(2). To fill in this statutory gap, HUD’s accompanying

regulations incorporate by reference the content of the

notice requirements developed and contained in HUD

Form 5380 (12/2016) to which funding grantees and their

subrecipients must adhere when pursuing eviction. 24

C.F.R. § 5.2005(a)(1)(i). Courts readily enforce HUD’s

VAWA notice requirements and have dismissed eviction

proceedings for a federally assisted landlord’s failure

to comply with this “strict notice” requirement—even

26

when the tenant did not know to claim this protection

themselves. DHI Cherry Glen Assocs., L.P. v. Gutierrez,

46 Cal. App. 5th Supp. 1, 10 (Cal. Super. Ct. App. Dep’t

2019) (dismissing eviction action where landlord failed

to give VAWA notice regardless of tenant’s status as

survivor).

As a secondary buffer to housing displacement, the

statute provides a lease bifurcation remedy for survivors

to exercise when the survivor tenant is not named on the

lease but faces eviction tied to a domestic violence-based

lease termination. 34 U.S.C. § 12491(b). The law directs

the landlord to give the survivor tenant the opportunity

to establish eligibility or find alternative housing within

a “reasonable time as determined by the appropriate

agency.” Id. at (b)(3)(B)(ii). Though the statute delegates

the determination of reasonableness to the agency, it

provides no instruction to the agency on what qualifies

as a “reasonable” timeframe for resolving this issue and

omits instructions for landlords on how to proceed when

this remedy is chosen. Those specifics are detailed in the

regulation. 24 C.F.R. § 5.2009(b)(2)-(c). Based on this

system of protections, courts have permitted tenants to

raise VAWA as a defense to eviction and relied in part

on the regulations to guide their understanding of the

protections afforded by VAWA. Bos. Hous. Auth. v. Y.A.,

482 Mass. 240, 245-7 (2019).

Relatedly, under the same delegation of authority to

HUD to develop the notice, Congress also directed the

agency to incorporate terms relating to “the right to

confidentiality and the limits thereof” into its regulations

to address privacy risks associated with disclosing

one’s survivor status. 34 U.S.C. § 12491(d)(1). HUD has

discharged this duty by providing specific details on the

27

privacy protections afforded to survivors of domestic

violence and the stringent standards a federally assisted

landlord must follow to protect confidential information

shared with them by a survivor who is exercising their

rights. 24 C.F.R. § 5.2007.

Collectively, HUD’s VAWA regulations ground the

statutory protections in the practical details of the

assisted housing market and provide bright-line standards

that enable survivors and landlords to mutually benefit

from the law.

C.

The Department of Labor’s Regulations

Implementing the Fair Labor Standards Act

Help Protect Historically Disadvantaged

Laborers.

In passing the Fair Labor Standards Act of 1938

(“FLSA”), Congress instituted a federal minimum floor

for wages and maximum hour restrictions that guaranteed

vulnerable workers across the country just compensation

for their labor. 29 U.S.C. §§ 206-07. However, despite

certain successes, the FLSA fell short of protecting the

rights of many laborers most in need of these base line

safeguards, particularly laborers involved in sectors

where racial or sex-based marginalization and exploitation

characterize industry practice. See Marc Linder, Farm

Workers and the FLSA: Racial Discrimination in the

New Deal, 65 T ex . L. Rev. 1335 at 1337 (June 1987);

Susan B. Mettler, Federalism, Gender and the Fair Labor

Standards Act, 26 Polity 4, 635, 643 (1994); Vivien Hart,

Minimum Wage Policy and Constit. Inequality: the

Paradox of the FLSA of 1938, 1 J. of Pol’y Hist. 3, 319,

327 (July 1989). Domestic workers specifically confronted a

dual assault on their right to labor protections, contending

28

with the racially biased dimension of labor exploitation

as well as the legacy of gender-based discrimination

that historically devalued and ignored labor performed

in the home in what is often described as “care work.”

Hila Shamir, Between Home and Work: Assessing the

Distributive Effects of Employment Law in Markets

of Care, 30 Berkeley J. Emp. & Lab. L. 404, 454 (2009);

Hart, supra, at 336.

In 1974, Congress amended the FLSA to reflect its

evolved understanding that the “employment of persons

in domestic service in households affects commerce,” thus

giving domestic service workers access to the material

advantages provided under the banner of federal minimum

wage and hour protections that their predominantly white

male counterparts had gained over a quarter-century

before. 29 U.S.C. § 202, as amended in Fair Labor

Standards Amendments of 1974, Pub. L. No. 93-259 § 7,

88 Stat. 55, 62 (1974). Despite the gains effectuated by

these more expansive protections, under this amended

regime, Congress still chose to exempt companionship

services from the minimum wage and maximum hour

rules as well as to deny overtime pay to live-in domestic

workers. 29 U.S.C. §§ 13(a)(15), 13(b)(21). It then entrusted

the Department of Labor (“DoL”) with responsibility

for defining the terms “domestic service employee” and

“companionship services” under a broadly conferred

delegation, stating only “as such terms are defined and

delimited by regulations of the Secretary” to reflect this

statutory change. 29 U.S.C. § 213(a)(15).

Consistent with its statutory mandate and in light

of substantial new evidence, DoL chose to revise its

definitions and “delimi[t]” these same terms in 2013 to

strengthen protections for domestic service workers.

29

29 U.S.C. § 213(a)(15); Application of the Fair Labor

Standards Act to Domestic Service Workers, 78 Fed.

Reg. 60,454 (Oct. 1, 2013). Turning to its previous

exemptions for “companionship services” and “domestic

service workers,” 29 C.F.R. §§ 552.6 & 552.109, the

agency conceded that its regulations no longer captured

its understanding of the care industry and undermined

the welfare of an emerging class of professional domestic

services employees involved in in-home medical care by

excluding them from the statute’s protective scope, 78 Fed.

Reg. at 60,455; because, by this time the prevailing system

for private in-home care depended on a professional work

force of home healthcare aids and nurses equipped with

the medical expertise to manage the serious long-term

healthcare needs of patients (including the elderly and

individuals with disabilities) who preferred to reside in

home and community-based settings. A.E. Benjamin,

Consumer-Directed Services at Home: A New Model for

Persons with Disabilities, 20 Health A ff. 80, 80 (2001)

(reporting that a majority of long-term care recipients

are elderly individuals who receive care primarily in their

homes); Jon Pynoos et al., Aging in Place, Housing, and

the Law, 16 Elder L. J. 77, 78 (2008) (discussing the recent

changes in federal policy leading to increasing numbers of

the elderly being cared for at home and the barriers they

face to do so); Julie Lipitt, Protecting the Protectors: A

Call for Fair Working Conditions for Home Health Care

Workers, 19 Elder L. J. 219, 220 (2011).

In the absence of regulatory changes corresponding

to this industry-wide shift in care management, private

agencies and employers exploited this regulatory loophole

by routinely mis-categorizing in-home health care workers

as providers of “companionship services” to exempt these

employees from federal minimum wage, maximum hour,

30

and overtime protections. 78 Fed. Reg. at 60,459; see Nat’l

Emp. L. Project, Independent Contractor Classification

in Home Care, NELP (2015), https://www.nelp.org/

wp-content/uploads/Home-Care-Misclassification-FactSheet.pdf [https://perma.cc/2FK3-CGSZ] (identifying

misclassification as a threat to home care workers’

ability to assert their rights). This abusive practice

disproportionately degraded the working conditions of

and denied labor rights to the Black and Latina women

who make up a substantial portion of the home healthcare

aid workforce. Lippitt, supra, at 225.

The public outcry and a concerted advocacy campaign

by home healthcare aides to push DoL to revise its

regulatory definition eventually came to a head before this

Court in Long Island Care at Home., Ltd. v. Coke. 551 U.S.

158, 165 (2007). Despite the significant implications for

the welfare of workers and patients alike and the notable

public opposition to the continued mistreatment of home

healthcare aides allowed for by the regulation, this Court,

in a unanimous decision, unequivocally declared its fidelity

to Chevron—including in the face of statutory silence—

and deferred to DoL’s interpretation maintaining that:

FLSA explicitly leaves gaps, for example,

as to the scope and definition of statutory

terms such as “domestic service employment”

and “companionship ser vices.” 29 U.S.C.

§ 213(a)(15). It provides the Department with

the power to fill these gaps through rules

and regulations. The subject matter of the

regulation in question concerns a matter in

respect to which the agency is expert, and it

concerns an interstitial matter, i.e., a portion

of a broader definition, the details of which,

31

as we said, Congress entrusted the agency to

work out.

Id.

Subsequently exercising the interpretive power that

the Court recognized in Long Island Care at Home, Ltd.,

DoL undertook rulemaking following careful study of

the care industry as a whole and the associated rise in

substandard wage and inhabitable working conditions for

home health care workers endemic to the system. 78 Fed.

Reg. 60,454-60,458-70. The agency recognized, given the

present working conditions, its interpretation no longer

embodied the protective intent of Congress and revised

the regulatory definition of “companionship services” to

exclude workers engaged in the “performance of medically

related services provided for the person” and make clear

to the industry and to home healthcare aides that they

are entitled to the wage and hour protections promised

by the statute. 29 C.F.R. § 552.6(d).

The DoL has given meaningful effect to the aims of

Congress by expanding worker protections for a rapidly

growing class of laborers who are likely to become a

fixture of the care industry as the elderly population

continues to swell and more people choose to receive care

in their homes. Bureau of Labor Statistics, U.S. Dep’t of

Labor, Occupational Outlook Handbook, Home Health

and Personal Care Aides, BLS.gov (visited Sep. 6, 2023),

https://www.bls.gov/ooh/healthcare/home-health-aidesand-personal-care-aides.htm (noting continued growth of

workers in the industry); U.S. Dep’t of Health and Human

Serv’s, The Future Supply of Long-Term Care Workers

in Relation to the Aging Baby Boom Generation: Report

to Congress, ASPE (May 13, 2003), http://aspe.hhs.gov/​

32

daltcp/​reports/​ltcwork.pdf. It is unlikely that DoL could

respond to the changes in economic circumstance in this

industry or in other complex labor markets and implement

regulations that give full force to these statutory

guarantees as swiftly, successfully, and effectively without

the backdrop of and reliance on Chevron deference,

including its clear limitations and guidelines.

CONCLUSION

In light of the importance of the Chevron doctrine

and of deference to agency rulemaking to the effective

implementation of civil rights laws, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

Damon Hewitt*

Jon Greenbaum

Thomas Silverstein

Sophia Jayanty

Lawyers’ Committee for

Civil Rights Under Law

1500 K Street NW,

Suite 900

Washington, D.C. 20005

James P. McLoughlin, Jr.

Counsel of Record

Mary K atherine Stukes

Pierce Werner

Moore & Van A llen

100 North Tryon Street,

Suite 4700

Charlotte, NC 28202

(704) 331-1000

jimmcloughlin@mvalaw.com

* Admitted in Pennsylvania

only. Practice limited to

matters before federal

courts.

Counsel for Amici Curiae

APPENDIX

i

TABLE OF APPENDICES

Page

A PPEN DI X — LIST OF A DDI TIONA L

AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

1a

Appendix

APPENDIX —

LIST OFAADDITIONAL

AMICI CURIAE

Center for Responsible Lending

Justice in Aging

Lambda Legal

Leadership Conference on Civil and Human Rights

National Association for the Advancement of Colored

People (NAACP)

National Community Reinvestment Coalition (NCRC)

National Employment Law Project (NELP)

National Fair Housing Alliance