Amicus Curiae Brief — Altagracia Sanchez, et al., Petitioners v. District of Columbia Office of the State Superintendent of Education, et al.

No. 22-543

In the Supreme Court of the United States

ALTAGRACIA SANCHEZ, DALE SORCHER,

AND JILL HOMAN,

Petitioners,

V.

OFFICE OF THE STATE SUPERINTENDENT OF

EDUCATION AND DISTRICT OF COLUMBIA,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 7 OTHER STATES

IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

FRANKIE A. DAME*

GRANT A. NEWMAN*

Special Assistants

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTIONS PRESENTED

A District of Columbia administrative agency

promulgated regulations requiring day-care providers to

obtain a college degree (on top of existing, extensive

training requirements) to care for children ages zero to

three. The agency imposed these regulations with no

guidance from the legislature and no mechanism in place

for review by a court.

1. Does the Due Process Clause require complete and

total judicial deference to these regulations?

2. Does the nondelegation doctrine impose any limits

on delegating to administrative agencies the power to

enact such regulations?

II

TABLE OF CONTENTS

Questions Presented ............................................................ I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 4

I.

The Court Should Revive The Nondelegation

Doctrine .......................................................................... 4

II. Overbroad Delegations Invite Oppressive

Regulations .................................................................. 13

Conclusion ........................................................................... 21

III

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ............................................... 4, 5, 12

Am. Inst. for Int’l Steel, Inc. v. United

States,

806 F. App’x 982 (Fed. Cir. 2020) ................................. 8

Barsky v. Bd. of Regents of Univ. of State

of N.Y.,

347 U.S. 442 (1954) ................................................. 15, 16

Big Time Vapes, Inc. v. FDA,

963 F.3d 436 (5th Cir. 2020) ........................................... 8

Bradford v. U.S. Dep’t of Lab.,

582 F. Supp. 3d 819 (D. Colo. 2022) .............................. 8

City of Arlington v. FCC,

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

Dent v. West Virginia,

129 U.S. 114 (1889) ....................................................... 18

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

575 U.S. 43 (2015) ................................................... 7, 8, 9

Fletcher v. Peck,

10 U.S. 87 (1810) ........................................................... 12

Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd.,

561 U.S. 477 (2010) ....................................................... 14

Granados v. Garland,

17 F.4th 475 (4th Cir. 2021) ........................................... 8

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Gundy v. United States,

139 S. Ct. 2116 (2019) ...................... 4, 5, 6, 7, 8, 9, 10, 13

ICC v. Goodrich Transit Co.,

224 U.S. 194 (1912) ......................................................... 5

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ......................................................... 9

J. W. Hampton & Co. v. United States,

276 U.S. 394 (1928) ..................................................... 4, 6

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022) ........................................... 8

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ..................................................... 4, 5

N.C. State Bd. of Dental Exam’rs v. FTC,

574 U.S. 494 (2015) ....................................................... 19

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) ....................................................... 12

Nat’l Fed’n of Indep. Bus. v. OSHA,

142 S. Ct. 661 (2022) ....................................................... 9

Panama Ref. Co. v. Ryan,

293 U.S. 388 (1935) ..................................................... 4, 5

Paul v. United States,

140 S. Ct. 342 (2019) ....................................................... 7

Seila L. LLC v. CFPB,

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

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Thomas v. Collins,

323 U.S. 516 (1945) ....................................................... 18

Tiger Lily, LLC v. U.S. Dep’t of Hous. &

Urb. Dev.,

5 F.4th 666 (6th Cir. 2021) ..................................... 10, 11

Touby v. United States,

500 U.S. 160 (1991) ......................................................... 4

United States v. Lopez-Alvarado,

812 F. App’x 873 (11th Cir. 2020) .................................. 8

United States v. Melgar-Diaz,

2 F.4th 1263 (9th Cir. 2021) ........................................... 8

Wayman v. Southard,

23 U.S. 1 (1825) ........................................................... 4, 5

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................................... 18

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................................... 4, 6, 7, 11

Statutes

D.C. CODE § 7-2031 ............................................................ 12

D.C. CODE § 7-2036 ............................................................ 12

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Amy Coney Barrett,

Suspension and Delegation,

99 CORNELL L. REV 251 (2014) ..................................... 6

Benjamin H. Barton,

An Institutional Analysis of Lawyer

Regulation: Who Should Control

Lawyer Regulation—Courts,

Legislatures, or the Market?,

37 GA. L. REV. 1167, 1226 (2003) ................................. 18

Benjamin Silver,

Nondelegation in the States,

75 VAND. L. REV. 1211 (2022) ........................................ 8

Bradford R. Clark,

Separation of Powers as a Safeguard of

Federalism,

79 TEX. L. REV. 1321 (2001)........................................... 2

Bureau of Labor Statistics,

Certification and licensing status of the

civilian noninstitutional population 16

years and over by employment status,

2020 annual averages (2021) ....................................... 14

Calvin R. Massey,

Etiquette Tips: Some Implications of

“Process Federalism,”

18 HARV. J.L. & PUB. POL’Y 175 (1994) ........................ 2

Childcare Workers, DATAUSA (2022) ............................ 17

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Evan J. Criddle,

When Delegation Begets Domination:

Due Process of Administrative

Lawmaking,

46 GA. L. REV. 117 (2011) ............................................... 6

THE FEDERALIST No. 47 ..................................................... 4

THE FEDERALIST No. 48 ..................................................... 8

THE FEDERALIST No. 51 ..................................................... 4

THE FEDERALIST No. 78 ................................................... 12

Gary Lawson,

Delegation and Original Meaning,

88 VA. L. REV 327 (2002) ............................................ 3, 6

JANNA E. JOHNSON & MORRIS M.

KLEINER,

IS OCCUPATIONAL LICENSING A

BARRIER TO INTERSTATE MIGRATION?

(2017) .............................................................................. 15

Jason Iuliano & Keith E. Whittington,

The Nondelegation Doctrine: Alive and

Well,

93 NOTRE DAME L. REV. 619 (2017) ........................... 11

Jason Webb Yackee & Susan Webb

Yackee, Delay in Notice and Comment

Rulemaking: Evidence of Systemic

Regulatory Breakdown? in

REGULATORY BREAKDOWN: THE CRISIS

OF CONFIDENCE IN U.S. REGULATION

(2012) .............................................................................. 10

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

John M. Manning,

The Nondelegation Doctrine As A

Canon of Avoidance,

2000 SUP. CT. REV. 223 (2000) ....................................... 9

Joseph Postell & Randolph J. May,

The Myth of the State Nondelegation

Doctrines,

74 ADMIN. L. REV. 263 (2022) ................................ 11, 20

Julian N. Eule,

Laying the Dormant Commerce Clause

to Rest,

91 YALE L.J. 425 (1982) ............................................... 19

Kathryn A. Watts,

Rulemaking As Legislating,

103 GEO. L.J. 1003 (2015) ............................................... 7

LISA KNEPPER, ET AL., INSTITUTE FOR

JUSTICE,

LICENSE TO WORK: A NATIONAL STUDY

OF BURDENS FROM OCCUPATIONAL

LICENSING (3d ed. 2022) .............................................. 17

Mila Sohoni,

The Major Questions Quartet,

136 HARV. L. REV. 262 (2022) ...................................... 13

MILTON FRIEDMAN,

CAPITALISM AND FREEDOM

(3d ed. 2022) .................................................................. 19

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

MORRIS M. KLEINER, BROOKINGS INST.,

REFORMING OCCUPATIONAL

LICENSING POLICIES (2015) ........................................ 14

MORRIS M. KLEINER & EVGENY S.

VOROTNIKOV,

AT WHAT CO$T?: STATE AND NATIONAL

ESTIMATES OF THE ECONOMIC COSTS

OF OCCUPATIONAL LICENSING (2018) .................. 15, 16

NAT’L CONF. OF STATE LEGISLATURES,

THE STATE OF OCCUPATIONAL

LICENSING (2017) ................................................... 15, 17

Nicholas Clairmont,

D.C.’s Misguided Attempt to Regulate

Daycare, THE ATLANTIC (July 11, 2017) ............. 20, 21

Nick Robinson,

The Multiple Justifications of

Occupational Licensing,

93 WASH. L. REV. 1903 (2018) ..................................... 20

OFF. OF ECON. POLICY, U.S. DEP’T OF THE

TREASURY ET AL.,

OCCUPATIONAL LICENSING: A

FRAMEWORK FOR POLICYMAKERS

(2015) ........................................................................ 14, 15

Priya Baskaran,

Respect the Hustle: Necessity

Entrepreneurship, Returning Citizens,

and Social Enterprise Strategies,

78 MD. L. REV. 323 (2019) ............................................ 19

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Professor Morris Kleiner: Licensing of

More Occupations Hurts the Economy,

UNIV. OF MINN. HUBERT H.

HUMPHREY SCH. OF PUB. AFFAIRS

(Jan. 23, 2018) ............................................................... 16

Pub. L. No. 107- 56 (2001 H.R. 3162) ............................... 10

Ronald Cass,

Delegation Reconsidered: A Delegation

Doctrine for the Modern

Administrative State,

40 HARV. J.L. & PUB. POL’Y 147 (2017) ........................ 9

Samuel Dodge,

Whitmer bill signings include

tightened sex offender registration

protocols, boosts in medical staffing,

MLIVE (Dec. 2020 11:09 am) ....................................... 11

Sean P. Sullivan,

Powers, But How Much Power? Game

Theory and the Nondelegation

Principle,

104 VA. L. REV. 1229 (2018) ........................................... 5

Steven G. Calabresi,

Separation of Powers and the

Rehnquist Court: The Centrality of

Clinton v. City of New York,

99 NW. U. L. REV. 77 (2004)........................................... 7

This Is How Much Child Care Costs In

2022, CARE.COM (June 15, 2022) ................................. 17

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

THOMAS SOWELL,

KNOWLEDGE AND DECISIONS (1996) .................... 15, 16

Timothy Sandefur, Insiders, Outsiders,

and the American Dream: How

Certificate of Necessity Laws Harm

Our Society’s Values,

26 NOTRE DAME J.L. ETHICS & PUB.

POL’Y 381 (2012) ............................................................ 16

Tzirel Klein,

Occupational Licensing: The Path to

Reform Through Federal Courts and

State Legislatures,

59 HARV. J. ON LEGIS. 427 (2022) .......................... 17, 18

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

The nondelegation doctrine might seem like an idea

only an academic could love. But the concept is really a

simple one: Congress cannot pass off the important work

of lawmaking to an executive or that executive’s agencies.

So the doctrine should serve a vital role in our

constitutional system. Yet for a great long while, the

Court has seemed reluctant to apply it with any real vigor.

Although the doctrine has spurred plenty of law-review

articles and debate over the years, it has generated

regrettably few court decisions against administrative

overreach and broad executive assertions of lawmaking

power.

This case shows how letting the nondelegation doctrine

lie dormant for too long offends more than just legal

theory—it can hurt real people. Altagracia Sanchez and

Dale Sorcher want to earn a living by caring for children

in the District of Columbia, and they seem well-qualified

to do that under any ordinary person’s understanding. Jill

Homan wants to find quality, affordable care for her

daughter in the city. Yet they have all been thwarted by a

D.C. statute that gives the Office of the State

Superintendent of Education breathtakingly broad power

to regulate day-care providers. Left free to do effectively

whatever it wants, the Office has imposed an onerous

requirement that D.C. daycare providers must hold a

specific kind of college degree. Voters hate the rule. But

shielded by the broad statutory language that empowers

it, the Office has left its unpopular daycare-diploma

mandate in place.

Under Supreme Court Rule 37.2, amici timely notified counsel of

record of their intent to file this brief.

*

2

The amici States of West Virginia, Alaska, Idaho,

Montana, Nebraska, South Carolina, Texas, and Utah

have concededly little interest in one D.C. childcare

regulation—but they have a substantial interest in

preventing unelected administrators from asserting

broad powers that should be left to accountable

lawmakers. After all, “strict adherence to federal

lawmaking procedures arguably has a larger influence

upon the working balance of our federalism than the

formal distribution of authority between the nation and

the states.” Bradford R. Clark, Separation of Powers as

a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1325

(2001) (cleaned up). In other words, “we ought to tighten

the non-delegation doctrine” for the sake of federalism.

Calvin R. Massey, Etiquette Tips: Some Implications of

“Process Federalism,” 18 HARV. J.L. & PUB. POL’Y 175,

215 (1994).

This case is a strong example of why the Court should

restore the nondelegation doctrine to its proper place in

our constitutional order. Lawmakers should be making

decisions of this sort, not agencies. And when agencies

like the Office can exercise broad lawmaking powers with

effectively no supervision, burdensome regulations and

licensing requirements become almost inevitable.

Essential rights like the right to work become easy

targets for administrative personnel acting in favor of

narrow industry interests rather than the voting public.

Our economy and our liberties suffer.

The Court should grant the Petition and remind courts

that the nondelegation doctrine is not just a matter of

concern for the law-review crowd. It is a constitutional

imperative of the first degree.

3

SUMMARY OF ARGUMENT

“[T]o abandon openly the nondelegation doctrine is to

abandon openly a substantial portion of the foundation of

American representative government.” Gary Lawson,

Delegation and Original Meaning, 88 VA. L. REV. 327,

332 (2002). The Court should grant the Petition to make

plain that it has not in fact left the nondelegation doctrine

behind.

I. The nondelegation doctrine plays a foundational

role in our constitutional system. But after acknowledging

the limits that the doctrine should impose on executive

assertions of legislative power, the Court has largely

stepped aside. Meanwhile, lower courts and others have

been left to question whether the doctrine has any real

purpose anymore. The Court should take the case and say

directly that it does.

II. Unsurprisingly, the vacuum left by the

nondelegation doctrine has been filled—and filled with a

vengeance. Occupational licensing has exploded over the

last seven decades with bad results across the board. This

case shows what happens when unaccountable agency

staffers exercise wholesale legislative discretion: The

States, their citizens, and everyday people looking to

make a living all take a hit. Unfortunately, these

Petitioners are not the first to suffer under unchecked

agency rule. Unless the Court intervenes, they will not be

the last.

4

REASONS FOR GRANTING THE PETITION

I.

The Court Should Revive The Nondelegation

Doctrine.

A. The Founders thought the greatest threat to

liberty is governmental power—especially concentrated

power. THE FEDERALIST No. 47 (J. Madison) (describing

how the “accumulation of all powers, legislative, executive,

and judiciary, in the same hands” is a tyranny). So they

limited the sum amount of power the government could

hold and then divvied that up by kind—legislative,

executive, and judicial—among three co-equal branches.

Divided power, the Founders said, would force one

branch’s ambition “to counteract” another’s.

THE

FEDERALIST No. 51 (J. Madison). And as part of that

division, keeping legislative power out of the hands of the

executive has been “universally recognized as vital to the

integrity and maintenance of the system of government

ordained by the constitution.” Marshall Field & Co. v.

Clark, 143 U.S. 649, 692 (1892).

The nondelegation doctrine puts these separation-ofpowers principles into action. It says Congress may not

give away legislative power: It “can[not] delegate to the

Courts, or to any other tribunals,” or to anyone else,

really, “powers which are strictly and exclusively

legislative.” Wayman v. Southard, 23 U.S. 1, 42 (1825);

accord Gundy v. United States, 139 S. Ct. 2116, 2123

(2019) (plurality op.). For nearly 200 years, the Court’s

nondelegation cases have at least recognized that much.

See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,

472 (2001); Touby v. United States, 500 U.S. 160, 165

(1991); A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 537 (1935); Panama Ref. Co. v. Ryan, 293

U.S. 388, 421 (1935); J. W. Hampton & Co. v. United

5

States, 276 U.S. 394, 406 (1928) ICC v. Goodrich Transit

Co., 224 U.S. 194, 214 (1912); Marshall Field, 143 U.S. at

693-94.

Of course, not everything that might look like a

delegation of legislative power is. For instance, Congress

can condition a statutory trigger on an executive official’s

fact-finding. See, e.g., Marshall Field, 143 U.S. at 693. Or

it may delegate powers shared by itself and another

branch. Wayman, 23 U.S. at 45. And Congress “may

authorize another branch to ‘fill up the details’” so “long

as Congress makes the policy decisions when regulating

private conduct.” Gundy, 139 S. Ct. at 2136 (Gorsuch, J.,

dissenting) (quoting Wayman, 23 U.S. at 43).

But aside from restrained exceptions like these, the

tautology holds: Legislators legislate, and the executive

must stick to executing.

B. For a while, at least some of the Court’s decisions

lined up with these tenets, and Congress conducted itself

accordingly. And when the Court eventually confronted

overly broad legislative delegations in the 1930s, it

rebuffed them. Schechter Poultry, 295 U.S. at 551;

Panama Refining, 293 U.S. at 432-33. The Court at that

time stood against “delegation running riot.” Schechter

Poultry, 295 U.S. at 553 (Cardozo, J., concurring).

But as the 20th century marched on, the Court’s

nondelegation jurisprudence began to unravel. “To the

confusion of lower courts and the frustration of legal

scholars, sweeping grants of what appear[ed] to be

embarrassingly legislative powers [were] consistently

upheld against nondelegation challenges.” Sean P.

Sullivan, Powers, But How Much Power? Game Theory

and the Nondelegation Principle, 104 VA. L. REV. 1229,

1231-32 (2018). Particularly “[f]or the past seventy-five”

6

(now, nearly ninety) “years, the Court has averted its eyes

while Congress has enacted a host of expansive

delegations with only minimal policy guidance.” Evan J.

Criddle, When Delegation Begets Domination: Due

Process of Administrative Lawmaking, 46 GA. L. REV.

117, 143-44 (2011). A meaningful nondelegation doctrine

gave way to a growing indifference toward sweeping

legislative delegations.

The Court often pushed nondelegation concerns aside

by applying a looser understanding of the intelligibleprinciple standard. See, e.g., Lawson, supra, at 371

(“After 1935, the Court abandoned any serious

nondelegation analysis … [and] announced the search for

an ‘intelligible principle.’”). In its earlier version, the

theory said that a congressional act does not violate the

separation of powers if Congress articulates “an

intelligible principle” to guide an agency’s discretion. J.W.

Hampton, 276 U.S. at 409. But this standard has since

“mutated” into one with no footing “in the original

meaning of the Constitution, in history, or even in” J.W.

Hampton itself. Gundy, 139 S. Ct. at 2139-41 (Gorsuch,

J., dissenting). Now, effectively any standard will do. And

under this “notoriously lax” test, Amy Coney Barrett,

Suspension and Delegation, 99 CORNELL L. REV. 251, 318

(2014), the administrative state has flourished, “with

hundreds of federal agencies poking into every nook and

cranny of daily life,” City of Arlington v. FCC, 569 U.S.

290, 215 (2013) (Roberts, C.J., dissenting).

Nor is the intelligible-principle standard the only

problem. Some later cases say, for example, “that the

degree of agency discretion that is acceptable varies

according to the scope of the power congressionally

conferred.” Whitman, 531 U.S. at 475 (cleaned up). Yet

it is not the amount of power that matters in a separation-

7

of-powers analysis, but its nature. Only the legislative

branch can create generally applicable rules governing

private conduct, big or small. Were it otherwise, Congress

could delegate plenary power over entire industries to the

executive branch so long as it split the industry into

enough bite-size parts and regulated it piecemeal. This

outcome perverts the separation of powers, but courts like

the one below embrace it anyway. See Pet.App.21a-24a

(applying Whitman to say that executive discretion may

be exercised without guiding standards because childcare

staff qualifications are a matter within a particular

industry).

C. This decades-long watering down of the

nondelegation doctrine has left many confused. See Dep’t

of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 76-86 (2015)

(Thomas, J., concurring in the judgment) (tracing the

doctrine’s long decline). It is not even clear today whether

the nondelegation doctrine has any role to play. And even

those that oppose the doctrine have said that its “continual

appearance in the case law has confused administrative

law as a whole.” Kathryn A. Watts, Rulemaking As

Legislating, 103 GEO. L.J. 1003, 1007 (2015).

Several members of the Court have also now openly

questioned at least some aspects of the present doctrine,

intensifying the uncertainty. See Gundy, 139 S. Ct. at

2131 (Alito, J., concurring in the judgment); id. (Gorsuch,

J., with Roberts, C.J., and Thomas, J., dissenting); Paul v.

United States, 140 S. Ct. 342 (2019) (Kavanaugh, J.,

respecting the denial of certiorari). Even aside from

express statements like these, the Court had seemed to be

creeping back toward using the nondelegation doctrine for

years, but without using the word “nondelegation.” See,

e.g., Steven G. Calabresi, Separation of Powers and the

Rehnquist Court: The Centrality of Clinton v. City of New

8

York, 99 NW. U. L. REV. 77, 85 (2004) (calling Clinton a

“non-delegation doctrine case masquerading as a

bicameralism and presentment case”).

Lower courts have begun noting that this Court’s

“nondelegation jurisprudence appears to be in a state of

flux.” Pet.App.26a (Randolph, J., concurring). Most still

try to apply the (problematic) existing precedent—that is,

a modern, mutated version of the intelligible-principle

formula. See, e.g., Pet.App.18a-23a; Am. Inst. for Int’l

Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed.

Cir. 2020); Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 443

(5th Cir. 2020); United States v. Lopez-Alvarado, 812 F.

App’x 873, 879 & n.3 (11th Cir. 2020). Others have begun

adopting, or at least using bits of, the history-based ideas

in Justice Gorsuch’s Gundy dissent. See, e.g., Jarkesy v.

SEC, 34 F.4th 446, 460 (5th Cir. 2022); United States v.

Melgar-Diaz, 2 F.4th 1263, 1266-68 (9th Cir. 2021);

Granados v. Garland, 17 F.4th 475, 480 (4th Cir. 2021).

And still others have questioned the vitality of the

nondelegation doctrine entirely. See Bradford v. U.S.

Dep’t of Lab., 582 F. Supp. 3d 819, 847 n.8 (D. Colo. 2022).

In short, “[t]he only certainty about the federal

nondelegation doctrine is that it is sure to change.”

Benjamin Silver, Nondelegation in the States, 75 VAND.

L. REV. 1211, 1271 (2022).

D. The Court should grant this Petition to dispel the

confusion and contradictions in its treatment of the

nondelegation doctrine.

“[C]lassifying governmental

power” is no doubt an “elusive venture,” “[b]ut it is no less

important for its difficulty.” Dep’t of Transp., 575 U.S. at

76 (Thomas, J., concurring in the judgment). Madison

even called it “the great problem to be solved.”

FEDERALIST NO. 48. After all, the Constitution requires

9

“call[ing] foul” when necessary. Gundy, 139 S. Ct. at 2135

(Gorsuch, J., dissenting).

The Court should therefore tackle the problem and

reinvigorate the nondelegation doctrine’s health.

Remember that the nondelegation doctrine protects

liberty by keeping policy decisions where the voters can

see them—in Congress. It is human nature to work more

carefully when others are watching and can hold you to

account. Accountability when managing liberties is thus

essential to healthy government. See Dep’t of Transp.,

575 U.S. at 57 (Alito, J., concurring) (“Liberty requires

accountability.”). The nondelegation doctrine does its

part “to protect liberty,” id. at 61, by keeping lawmaking

power “with the people’s elected representatives” and

away from unaccountable officials hidden inside

bureaucracies, Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S.

Ct. 661, 668 (2022) (Gorsuch, J., concurring) (emphasis

added). At the same time, half-loaf approaches to

nondelegation—such as enforcing it through a canon of

constitutional avoidance—can undermine accountability

by upsetting “the fruits of legislative compromise.” John

M. Manning, The Nondelegation Doctrine As A Canon of

Avoidance, 2000 SUP. CT. REV. 223, 228 (2000).

Keeping lawmaking power in Congress is also

important because lawmakers—like everyone else—

would sometimes rather shirk tough decisions. See

Ronald Cass, Delegation Reconsidered: A Delegation

Doctrine for the Modern Administrative State, 40 HARV.

J.L. & PUB. POL’Y 147, 154 (2017). Worse, they might try

“to take credit for addressing a pressing social problem

by” offloading it to the executive and then “blaming the

executive for the problems that attend whatever measures

he chooses to pursue.” Gundy, 139 S. Ct. at 2135

(Gorsuch, J., dissenting); see Indus. Union Dep’t, AFL-

10

CIO v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980)

(Rehnquist, J., concurring in the judgment) (explaining

that Congress did exactly this when it “pass[ed] this

difficult choice” of how to address benzene exposure on to

OSHA). A meaningful nondelegation doctrine ensures

that the decisionmakers reap the benefits and bear the

blame.

E. No doubt many would urge the Court to stay away

from this Petition for fear of what a real nondelegation

doctrine might mean. But their objections do not hold.

For instance, some think agencies act faster than

Congress—but Congress can legislate quickly when it

wants to. President Bush signed the PATRIOT Act just

three days after it was introduced. See Pub. L. No. 10756 (2001 H.R. 3162); see also Tiger Lily, LLC v. U.S. Dep’t

of Hous. & Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021)

(Thapar, J., concurring) (giving more examples).

Legislating by notice-and-comment rulemaking is not

faster than legislating by bill in non-emergency situations,

either. On average, it takes about 18 months. See Jason

Webb Yackee & Susan Webb Yackee, Delay in Notice and

Comment Rulemaking: Evidence of Systemic Regulatory

Breakdown?, in REGULATORY BREAKDOWN: THE CRISIS

OF CONFIDENCE IN U.S. REGULATION 163, 168 (2012).

Anyway, deliberative lawmaking is a feature of our

republic—not a bug. Gundy, 139 S. Ct. at 2134 (Gorsuch,

J., dissenting) (stating the Founders “went to great

lengths to make lawmaking difficult”).

Some also regard agencies as better experts, but that

is not necessarily so. Congress can ensure that laws are

technically sound by using its own experts, eliciting

testimony from others, or commissioning reports from

executive-branch experts. The Congressional Budget

Office has top-notch experts on financial, economic, and

11

budget matters, for example. Tiger Lily, LLC, 5 F.4th at

675 (Thapar, J., concurring). And fact-gathering and

investigation is the very reason committees and

(especially) subcommittees exist. So Congress can get its

hands on the same information that executive branch

agencies have.

A more robust nondelegation doctrine also need not

disrupt efficient governing. Most obviously, Congress can

adopt existing regulations as statutes—it already does.

See Whitman, 531 U.S. at 472 (noting “a subsequent

Congress had incorporated the regulations into a revised

version of the statute”). Michigan’s legislature did just

that when the Michigan Supreme Court reinvigorated its

state-law-based nondelegation doctrine and invalidated

certain executive orders. See Samuel Dodge, Whitmer

bill signings include tightened sex offender registration

protocols, boosts in medical staffing, MLIVE (Dec. 30,

2020 11:09 a.m.), https://bit.ly/3WXARXC. Dozens of

other state-court decisions have invalidated statutes on

nondelegation grounds without catastrophic effect, either.

See Jason Iuliano & Keith E. Whittington, The

Nondelegation Doctrine: Alive and Well, 93 NOTRE DAME

L. REV. 619, 636 (2017) (cataloguing 151 successful

nondelegation challenges in state courts). So real-world

experience confirms that a meaningful nondelegation

doctrine “would not lead to apocalyptic results.” See

Joseph Postell & Randolph J. May, The Myth of the State

Nondelegation Doctrines, 74 ADMIN. L. REV. 263, 305

(2022).

F. This case—and its strikingly overbroad

delegation—presents an excellent vehicle to address the

tepid state of nondelegation law.

The statute here says only that the “Mayor shall

promulgate all rules necessary to implement the

12

provisions of this subchapter,” including, among other

things, “[m]inimum standards of operation of a child

development facility concerning staff qualification,

requirements and training.” D.C. CODE § 7-2036(a)(1)(A).

The D.C. Circuit found an intelligible principle in the

definition of “child development facilities”—a “structure”

“that provides care and other services, supervision, and

guidance for children, infants, and toddlers on a regular

basis.” Id. § 7-2031(3). This thin provision, the court said,

shows that minimum qualifications must “relate to the

care, supervision, and guidance of children.” Pet.App.23a.

Even under the current test, the statute has no

intelligible principle. “Instead of prescribing rules of

conduct, it authorizes the making of codes to prescribe

them.” Schechter Poultry, 295 U.S. at 541. It delegates to

a single person—the Mayor—absolute discretion to do

whatever she feels is “necessary.” This statute contains

no direction, no goal, no mission, no policy—just the naked

command to go forth and regulate. The D.C. Council could

not manage to include the vaguest of guiding standards—

not even regulating in the “public interest.” See, e.g., Nat’l

Broad. Co. v. United States, 319 U.S. 190, 225-26 (1943).

And digging an intelligible principle out of the definition

section is categorical error. Statutory definitions merely

explain what the legislating body means when it uses

certain terms; they are descriptive, not prescriptive.

But really, the Court should not go hunting for a

nonexistent intelligible principle—it should strike this

statute down as a delegation of raw legislative power in its

original sense. The D.C. Office’s standards are “general

rules for the government of society,” Fletcher v. Peck, 10

U.S. 87, 136 (1810), that regulate the “rights of every

citizen,” FEDERALIST NO. 78 (A. Hamilton); they are

“generally applicable rules of conduct,” Gundy, 139 S. Ct.

13

at 2133 (Gorsuch, J., dissenting), that govern private

persons’ future actions. This statute is not a delegation of

fact-finding or shared power. And it is “hard,” if not

impossible, “to see how [it] leaves the [Mayor] with only

details to fill up.” Gundy, 139 S. Ct. at 2143 (Gorsuch, J.,

dissenting). Promulgating these standards-cum-laws is

an exercise of legislative power and so properly within the

D.C. Council’s province alone.

* * * *

Continuing uncertainty over nondelegation is doing no

one any good. And the issue’s urgency is only growing

given this Court’s recent “major questions” cases—for

“without knowing what [the] underlying [nondelegation]

theory is, it becomes much harder to accurately apply a

rule that ostensibly exists ‘in service of’ that underlying

doctrine.” Mila Sohoni, The Major Questions Quartet, 136

HARV. L. REV. 262, 300 (2022) (quoting Gundy, 139 S. Ct.

at 2142 (Gorsuch, J., dissenting)). The Court should grant

the Petition and take this issue head on.

II.

Overbroad Delegations Invite Oppressive

Regulations.

A toothless nondelegation doctrine has real-world

consequences.

Just ask Petitioners.

Unrestricted

delegation of legislative power to the Mayor led to a

regulation that compels Ms. Sanchez to close her doors

while she takes college courses. Pet.5-7. It treated Ms.

Sorcher’s graduate degrees as less valuable than the

paper they were printed on. Pet.App.32a. And it

justifiably concerned Ms. Homan that the quality of her

young daughter’s care would plummet while its price

soared. Id.

14

Petitioners’ stories are not one-offs. Many of our

residents have been denied the freedom to “function[]

without being ruled by functionaries” over the years. Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,

499 (2010). Under the status quo, many more are sure to

face the same—especially in the world of occupational

licensing. The hit to interstate migration, the burdens to

consumers and workers, the lack of any real structure or

control when a bad regulatory proposal sails through—all

of it flows from unaccountable agencies filling the vacuum

left by an atrophic nondelegation doctrine.

A. Occupational licensing has taken the American

economy by storm. Halfway through the twentieth

century, licensing laws covered less than five percent of

the workforce. See MORRIS M. KLEINER, BROOKINGS

INST., REFORMING OCCUPATIONAL LICENSING POLICIES

3 (2015). Seventy years later, that number has seen a fivefactor increase—nearly one out of every four workers

must now obtain and maintain a license to gain and keep

their jobs. See Bureau of Labor Statistics, Certification

and licensing status of the civilian noninstitutional

population 16 years and over by employment status, 2020

annual averages (2021), https://bit.ly/3jCM3KO (last

visited Jan. 3, 2023). This growth mostly came from “an

increase in the number of professions that require a

license”—as of 2015, about 1,100 in at least one State and

nearly 60 in all States—along with a “changing

composition of the workforce” as a whole. OFF. OF ECON.

POLICY, U.S. DEP’T OF THE TREASURY ET AL.,

OCCUPATIONAL LICENSING: A FRAMEWORK FOR

POLICYMAKERS 3-4 (2015), https://bit.ly/3WxlmFV.

This licensing boom is a growing headache for the

States and the country. For one thing, the ever-increasing

variance and complexity of state-specific licensing

15

regimes stifles interstate migration. JANNA E. JOHNSON

& MORRIS M. KLEINER, IS OCCUPATIONAL LICENSING A

BARRIER TO INTERSTATE MIGRATION? 2 (2017),

https://bit.ly/3G3rdvB (“[I]ndividuals in a variety of

licensed occupations … move across states at a

significantly lower rate than others.”). This kind of

“national patchwork of stealth regulation” is bound to

“restrict[] labor markets, innovation, and worker

mobility.” NAT’L CONF. OF STATE LEGISLATURES, THE

STATE OF OCCUPATIONAL LICENSING 5 (2017),

https://bit.ly/3CaEoKi (cleaned up). Workers may decide

moving to another State is just not worth the cost of

securing all the licenses needed to keep working. And

these individual decisions add up. While the toll varies

from State to State, “[a]t the national level” it “cost[s] the

economy between 1.8 and 1.9 million jobs” and up to $7.1

billion and almost $200 billion annually in “lost output” and

“misallocated resources,” respectively.

MORRIS M.

KLEINER & EVGENY S. VOROTNIKOV, AT WHAT CO$T?:

STATE AND NATIONAL ESTIMATES OF THE ECONOMIC

COSTS OF OCCUPATIONAL LICENSING 5 (2018),

https://bit.ly/3QeNsUp.

B. The on-the-ground struggles of people like

Petitioners bring these figures into stark focus. “The

right to work,” purportedly “the most precious liberty that

man possesses,” has become often honored in name only.

Barsky v. Bd. of Regents of Univ. of State of N.Y., 347 U.S.

442, 472 (1954) (Douglas, J., dissenting). Occupational

licensing has imposed “inconsistent, inefficient, and

arbitrary” burdens on particular “workers, employers,

and consumers” along the way. OFF. OF ECON. POLICY,

U.S. DEP’T OF THE TREASURY ET AL., supra, at 7.

For starters, the whole scheme creates “an enormous

bias toward incumbents.” THOMAS SOWELL, KNOWLEDGE

16

AND DECISIONS 200 (1996) (cleaned up).

As qualification

standards go up, “existing practitioners” are “almost

invariably exempt[ed]” from meeting them and freed to

“reap increased earnings from the contrived scarcity,

without having to pay the costs they impose on new

entrants in the form of longer schooling.” Id.; cf.

Pet.App30a (discussing exemption for certain positions

after 10 or more years of continuous service). Strict

licensing “almost invariably reduces the quantity of new

practitioners through various restrictive devices.”

SOWELL, supra, at 200. At the same time, third parties

leech off this process. Governments collect licensing fees,

and “education[al] institutions … collect[] the tuition for

the courses that those workers need to take in order to

qualify for”—or, in some cases, keep—“a license.”

Professor Morris Kleiner: Licensing of More

Occupations Hurts the Economy, UNIV. OF MINN.

HUBERT H. HUMPHREY SCH. OF PUB. AFFAIRS (Jan. 23,

2018), https://bit.ly/3Q0Sqnq.

With the flow of newcomers stemmed, incumbents can

“artificially raise[]” the price of services. SOWELL, supra,

at 200.

This supply constraint “inflates earnings

significantly above what workers would make absent

licensing.” Kleiner & Vorotnikov, supra, at 17. Who, then,

“bear[s] the cost of [these] economic returns”? Id. The

consumer-citizens of our States. And if that were not bad

enough, paying these “above market rates” allows the

benefiting industries to escape “the pressure … to

innovate or improve” their services—causing our

residents to suffer even more. Timothy Sandefur,

Insiders, Outsiders, and the American Dream: How

Certificate of Necessity Laws Harm Our Society’s Values,

26 NOTRE DAME J.L. ETHICS & PUB. POL’Y 381, 384

(2012).

Empirically, “across a broad range of

professions,” licensing has had “a null or negative effect

17

on service quality.” Tzirel Klein, Occupational Licensing:

The Path to Reform Through Federal Courts and State

Legislatures, 59 HARV. J. ON LEGIS. 427, 433 (2022).

The child-care sector has felt all these effects. With

childcare licensed in 44 States, see LISA KNEPPER, ET AL.,

INSTITUTE FOR JUSTICE, LICENSE TO WORK: A NATIONAL

STUDY OF BURDENS FROM OCCUPATIONAL LICENSING 19

(3d ed. 2022), https://bit.ly/3G2vAqT, is it any surprise

that, in 2022, those costs ate up over 20% of the incomes of

over half of the households that pay for childcare? This Is

How Much Child Care Costs In 2022, CARE.COM (June 15,

2022), https://bit.ly/3C9SRGh.

A fifth of parents

responded by leaving the workforce entirely. Id. In areas

like Washington, D.C., where the cost of daycare is 85%

above the national average, options like leaving the

workforce, the District, or both become increasingly

enticing. Id. And with the Bureau of Labor Statistics

projecting that the childcare-worker occupation will grow

at less than half the rate of the national average workforce

over a 10-year period, this problem is poised to get worse,

not better. Childcare Workers, DATAUSA (2022),

https://bit.ly/3WvBiZv (last visited Jan. 3, 2023). At the

same time, childcare workers like Ms. Sanchez and Ms.

Homan face challenges of their own. Climbing educational

and other licensing costs put the squeeze on workers who

are already operating at thin margins. “Low-income

workers”—those for whom the costs “represent a larger

share of their income than the[ir] … higher-income”

colleagues—are “disproportionately affect[ed].” NAT’L

CONF. OF STATE LEGISLATURES, supra, at 7.

C. The most frustrating aspect of this predicament is

also the simplest one: These problems are the kind that

citizens elected their representatives to solve—not by

shuffling the job to an agency, but by gauging what the

18

public wants and legislating their way to an answer

themselves. But when “a regime administered by a ruling

class of largely unaccountable ‘ministers’” takes over,

West Virginia v. EPA, 142 S. Ct. 2587, 2617 (2022)

(Gorsuch, J., concurring) (quoting THE FEDERALIST NO.

11 (A. Hamilton)), the problems either persist, or, as this

case shows, intensify.

Occupational licensing ought to “provide for the

general welfare of [the] people” by “secur[ing] them

against the consequences of ignorance and incapacity, as

well as of deception and fraud.” Dent v. West Virginia,

129 U.S. 114, 122 (1889). The State has a duty “to protect

the public from those who seek … to obtain its money”

through “untrustworthy, [] incompetent, or []

irresponsible” means.” Thomas v. Collins, 323 U.S. 516,

545 (1945) (Jackson, J., concurring). And licensing rules

can help “consumers … separate the” real professionals

“from the quacks.” Klein, supra, at 432. But in taking

these measures, the State must relate requirements to the

“calling or profession” and make them attainable by

“reasonable study and application,” lest they infringe the

“right to pursue a lawful vocation.” Dent, 129 U.S. at 122.

Legislators are best positioned to perform those tasks.

As this case illustrates all too well, legislatures often

opt to shunt their licensing-related work to regulatory

bodies. This institutional avoidance gives legislators the

double benefit of avoiding “the hard work of ironing out

the details” and being able to “blame unaccountable

bureaucrats for any unpopular effects or decisions,” such

as invasions of liberty.

Benjamin H. Barton, An

Institutional Analysis of Lawyer Regulation: Who

Should

Control

Lawyer

Regulation—Courts,

Legislatures, or the Market?, 37 GA. L. REV. 1167, 1226

(2003). In fact, “many licensing boards are composed of

19

midlevel bureaucrats with unmitigated authority to make

licensing decisions.” Priya Baskaran, Respect the Hustle:

Necessity Entrepreneurship, Returning Citizens, and

Social Enterprise Strategies, 78 MD. L. REV. 323, 339

(2019). These boards and agencies then assume roles akin

to the medieval guilds of old—imposing by-their-leave

edicts that “specify[] which individuals should be

permitted to follow particular pursuits” without direct

accountability to the real people they regulate. MILTON

FRIEDMAN, CAPITALISM AND FREEDOM 137-38 (3d ed.

2002).

Empowering a state-sanctioned “cartel immune from

fair competition” departs from what the Constitution and

this Court ever envisioned. Sandefur, supra, at 385; cf.

N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494,

505 (2015) (warning about the special concerns that arise

when a “State seeks to delegate its regulatory power to

active market participants”). And legislation with a

“discriminatory or protectionist nature represents a

breakdown of the mechanism of democratic government,”

Julian N. Eule, Laying the Dormant Commerce Clause to

Rest, 91 YALE L.J. 425, 443 (1982)—a problem even

harder to correct when the culprit is someone whose name

never appeared on a ballot.

Reinvigorating the nondelegation doctrine would be a

major step toward dialing back these concerns and the

burdensome occupational regulations they spark.

First, the doctrine would force Congress to reevaluate

its broad licensing delegations for places like the District

of Columbia, military bases, national parks, and other

federal lands. It would also require Congress to take

ownership over the many other industry-wide licensing

and occupational requirements that proliferate at the

federal level. Telling Congress that it must own these

20

licensing issues would be timely considering the

“increasingly prominent role that the federal government

plays in regulating occupational licensing.”

Nick

Robinson, The Multiple Justifications of Occupational

Licensing, 93 WASH. L. REV. 1903, 1920 (2018).

Second, this Court’s nondelegation decisions influence

how state courts apply the doctrine under their own

constitutions. See, e.g., Postell & May, supra, at 287

(“Most states apply a weak nondelegation doctrine[]

similar to that of the U.S. Supreme Court.”). So if the

Court works to restore the nondelegation doctrine here,

then it should have a secondary effect of shifting power

back to state-level legislatures, too.

This work must be done; the total reign of regulators

over occupational licensing needs to end. It is one thing

for the people’s elected leaders to govern using others’

technical “expertise.” Seila L. LLC v. CFPB, 140 S. Ct.

2183, 2207 (2020) (cleaned up). It is something else

entirely when those elected leaders abdicate their

responsibility to agencies staffed with bureaucrats unable

or unwilling to wield that expertise with deftness. Cf.

Pet.6 (describing how the D.C. Council repeatedly

“ordered [the Office] to ‘conduct a study to assess the

impact of [the college requirement] on staff members and

the cost of child care in the District,’” but the Office has

not done so). The academic report on which the regulation

here was based concedes that the “existing research” on

its key recommendation is “inconclusive.” Nicholas

Clairmont, D.C.’s Misguided Attempt to Regulate

Daycare,

THE

ATLANTIC

(July

11,

2017),

https://bit.ly/3Cbn087. The “rest of the report doesn’t

exactly lead one to the conclusion that this policy is a good

idea,” either. Id. In fact, the rule was so off-base that it

even baffled one of the report’s editors: The report looked

21

at “the question of requiring degrees for child-care

workers” as a theory to consider, not a policy to

implement. Id. It did not probe the theory’s “real-world

implications” in areas like “the labor market and cost.” Id.

(cleaned up).

Allowing agencies near-unchecked power to implement

policies that fly against “the logic of the science” and hurt

real people, see Clairmont, supra, should be unacceptable

in a republic like ours. The Court should grant the

Petition to say at least that.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

FRANKIE A. DAME*

GRANT A. NEWMAN*

Special Assistants

*admitted in Michigan;

practicing under supervision of

West Virginia attorneys

Counsel for Amicus Curiae State of West Virginia

22

ADDITIONAL COUNSEL

TREG TAYLOR

Attorney General

State of Alaska

ALAN WILSON

Attorney General

State of South Carolina

RAÚL R. LABRADOR

Attorney General

State of Idaho

KEN PAXTON

Attorney General

State of Texas

AUSTIN KNUDSEN

Attorney General

State of Montana

SEAN D. REYES

Attorney General

State of Utah

DOUGLAS J. PETERSON

Attorney General

State of Nebraska