Amicus Curiae Brief — Securities and Exchange Commission, Petitioner v. George R. Jarkesy, Jr., et al.

No. 22-859

In the Supreme Court of the United States

SECURITIES AND EXCHANGE COMMISSION,

Petitioner,

v.

GEORGE R. JARKESY, JR., ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR INDEPENDENT WOMEN’S

LAW CENTER AS AMICUS CURIAE

SUPPORTING RESPONDENTS

JENNIFER C. BRACERAS

INDEPENDENT WOMEN’S

LAW CENTER

1802 Vernon Street NW

Suite 1027

Washington, DC 20009

(202) 807-9986

KATHRYN E. TARBERT

Counsel of Record

GENE C. SCHAERR

ANNIKA BOONE BARKDULL

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

ktarbert@schaerr-jaffe.com

Counsel for Amicus Curiae

OCTOBER 18, 2023

TABLE OF CONTENTS

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

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ................................................... 1

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

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

I.

II.

Broad Delegations of Power Allow

Agencies to Burden Individual and

Minority Interests........................................... 3

A.

Broad Delegations of Power Allow

Agencies to Adopt Regulations that

Burden Minorities. .................................. 4

B.

Broad Delegations of Power Allow

Agencies to Burden Individual

Liberty Interests. .................................... 7

Broad Delegations of Power to

Administrative Agencies Destabilize

the Law. .......................................................... 8

CONCLUSION .......................................................... 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

American Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490 (1981) ................................................ 15

Doe v. Purdue Univ.,

928 F.3d 652 (7th Cir. 2019) .................................... 8

Doe v. University of Cincinnati,

872 F.3d 393 (6th Cir. 2017) .................................... 8

Gorman v. University of R.I.,

837 F.2d 7 (1st Cir. 1988) ........................................ 8

Gundy v. United States,

139 S. Ct. 2116 (2019) ................................ 4, 5, 9, 15

Industrial Union Dep’t, AFL-CIO v. American

Petroleum Inst., 448 U.S. 607 (1980)................. 4, 15

Mathews v. Eldridge,

424 U.S. 319 (1976) .................................................. 8

Morrison v. Olson,

487 U.S. 654 (1988) .................................................. 2

Pascua Yaqui Tribe v. U.S. EPA,

557 F. Supp. 3d 949 (D. Ariz. 2021) ...................... 14

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) .................................................... 2

Sackett v. EPA,

143 S. Ct. 1322 (2023) ............................................ 14

Texas v. U.S. EPA,

No. 3:23-cv-00017 (S.D. Tex. July 10, 2023) ......... 14

iii

Constitutional Provisions

U.S. Const. art. I, § 1 ................................................... 3

Statutes

29 U.S.C. § 203(r) ........................................................ 5

Dodd-Frank Act, 15 U.S.C. § 78u-2(a) ........................ 1

Regulations

34 C.F.R. § 106.30........................................................ 8

34 C.F.R. § 106.45........................................................ 8

Affidavit of Support on Behalf of Immigrants,

86 Fed. Reg. 15140 (Mar. 22, 2021)....................... 13

Corporate Average Fuel Economy (CAFE)

Preemption, 86 Fed. Reg. 74,236

(Dec. 29, 2021) ........................................................ 11

Coverage of Certain Preventive Services Under

the Affordable Care Act, 88 Fed. Reg. 7,236

(Feb. 2, 2023) .......................................................... 10

Definition of “Waters of the United States”—

Recodification of Pre-Existing Rules,

84 Fed. Reg. 56,626 (Oct. 22, 2019) ....................... 14

Employee or Independent Contractor

Classification Under the Fair Labor

Standards Act, 87 Fed. Reg. 62,218

(Oct. 13, 2022) ................................................ 5, 6, 10

Endangered and Threatened Wildlife and

Plants; Regulations for Listing Endangered

and Threatened Species and Designating

Critical Habitat, 87 Fed. Reg. 37,757

(June 24, 2022) ....................................................... 11

iv

Energy Conservation Program for Appliance

Standards: Procedures, Interpretations, and

Policies for Consideration in New or Revised

Energy Conservation Standards and Test

Procedures for Consumer Products

and Commercial/Industrial Equipment,

86 Fed. Reg. 70,892 (Dec. 13, 2021) ...................... 11

Energy Conservation Program: Definition

of Showerhead, 86 Fed. Reg. 71,797

(Dec. 20, 2021) ........................................................ 11

Ensuring Access to Equitable, Affordable,

Client-Centered, Quality Family Planning

Services, 86 Fed. Reg. 56,144 (Oct. 7, 2021) ......... 12

Financial Value Transparency and Gainful

Employment (GE), Financial Responsibility,

Administrative Capability, Certification

Procedures, Ability to Benefit (ATB),

88 Fed. Reg. 32,300 (May 19, 2023) ...................... 10

Making Admission or Placement

Determinations Based on Sex in

Facilities Under Community Planning

and Development Housing Programs;

Withdrawal; Regulatory Review,

86 Fed. Reg. 22,125 (Apr. 27, 2021) ...................... 13

Modification of Registration Requirement for

Petitioners Seeking to File Cap-Subject

H–1B Petitions, 86 Fed. Reg. 1,676

(Jan. 8, 2021) .......................................................... 13

v

Multi-Pollutant Emissions Standards for

Model Years 2027 and Later Light-Duty and

Medium-Duty Vehicles, 88 Fed. Reg. 29,184

(May 5, 2023).......................................................... 10

National Emission Standards for Hazardous

Air Pollutants: Coal- and Oil-Fired Electric

Utility Steam Generating Units—Revocation

of the 2020 Reconsideration and Affirmation

of the Appropriate and Necessary

Supplemental Finding, 88 Fed. Reg. 13,956

(Mar. 6, 2023) ......................................................... 10

National Environmental Policy Act

Implementing Regulations Revisions,

87 Fed. Reg. 23,453 (Apr. 20, 2022) ...................... 11

National Vaccine Injury Compensation

Program: Rescission of Revisions to the

Vaccine Injury Table, 86 Fed. Reg. 21,209

(Apr. 22, 2021) ........................................................ 13

Nondiscrimination on the Basis of Sex

in Education Programs or Activities

Receiving Federal Financial Assistance,

87 Fed. Reg. 41,390 (July 12, 2022) ........................ 8

Pipeline Safety: Safety of Gas Gathering

Pipelines: Extension of Reporting

Requirements, Regulation of Large,

High-Pressure Lines, and Other Related

Amendments, 86 Fed. Reg. 63,266

(Nov. 15, 2021) ....................................................... 11

Prudence and Loyalty in Selecting Plan

Investments and Exercising Shareholder

Rights, 87 Fed. Reg. 73,822 (Dec. 1, 2022)............ 10

vi

Public Charge Ground of Inadmissibility,

87 Fed. Reg. 55,472 (Sept. 9, 2022) ....................... 11

Rebuilding and Enhancing Programs to

Resettle Refugees and Planning for the

Impact of Climate Change on Migration,

Exec. Order No. 14,013, 86 Fed. Reg. 8,839

(Feb. 4, 2021) .......................................................... 13

Recission of the Notice of July 23, 2019,

Designating Aliens for Expedited Removal,

87 Fed. Reg. 16,022 (Mar. 21, 2022)...................... 11

Regulations Governing Take of Migratory

Birds; Revocation of Provisions,

86 Fed. Reg. 54,642 (Oct. 4, 2021) ......................... 12

Reinstatement of HUD’s Discriminatory

Effects Standard, 88 Fed. Reg. 19,450

(Mar. 31, 2023) ....................................................... 10

Removal of International Entrepreneur Parole

Program, 86 Fed. Reg. 25,809 (May 11, 2021) ...... 12

Rescinding the Rule on Increasing Consistency

and Transparency in Considering Benefits

and Costs in the Clean Air Act Rulemaking

Process, 86 Fed. Reg. 26,406 (May 14, 2021) ........ 12

Restoring Affirmatively Furthering Fair

Housing Definitions and Certifications,

86 Fed. Reg. 32,767 (June 23, 2021) ..................... 12

Revised Definition of “Waters of the

United States”, 88 Fed. Reg. 3,004

(Jan. 18, 2023) ........................................................ 10

vii

Revised Definition of “Waters of the United

States”; Conforming, 88 Fed. Reg. 61,964

(Sept. 8, 2023) ........................................................ 14

Safeguarding the Rights of Conscience

as Protected by Federal Statutes,

88 Fed. Reg. 820 (Jan. 5, 2023) ............................. 10

Standards of Performance for New,

Reconstructed, and Modified Sources and

Emissions Guidelines for Existing Sources:

Oil and Natural Gas Sector Climate Review,

86 Fed. Reg. 63,110 (Nov. 15, 2021) ...................... 12

Strengthening Wage Protections for the

Temporary and Permanent Employment of

Certain Immigrants and Non-Immigrants

in the United States: Delay of Effective and

Transition Dates, 86 Fed. Reg. 26,164

(May 13, 2021)........................................................ 12

The Navigable Waters Protection Rule:

Definition of “Waters of the United States”,

85 Fed. Reg. 22,250 (Apr. 21, 2020) ...................... 14

Tip Regulations Under the Fair Labor

Standards Act (FLSA); Partial Withdrawal,

86 Fed. Reg. 60,114 (Oct. 29, 2021) ....................... 12

Withdrawing Rule on Securing Updated and

Necessary Statutory Evaluations Timely,

87 Fed. Reg. 32,246 (May 27, 2022) ...................... 11

viii

Other Authorities

Jennifer C. Braceras,

Title IX, Sexual Misconduct, and Due

Process on Campus, Indep. Women’s Forum

(Jan. 2020) ................................................................ 7

Brookings Inst.,

Tracking Regulatory Changes in the Biden

Era ............................................................................ 9

Chasing Work: Independent Contractors,

Hear real stories of workers impacted by jobkilling regulations, Indep. Women’s Forum ........... 6

Courtney Connley,

More than 860,000 women dropped out of the

labor force in September, according to new

report, CNBC (Oct. 2, 2020, 2:45 PM) ..................... 6

The Federalist No. 51 (J. Madison),

(Wash. D.C.: Libr. of Cong.) ..................................... 2

Gabriella Hoffman,

Freelancing Gives Women an Edge. New

Labor Department Rule Will Stifle Our

Potential, Indep. Women’s Forum

(Sept. 8, 2023) .......................................................... 6

Karen Kosanovich,

Spotlight on Statistics, Workers in

Alternative Employment Arrangements,

U.S. Bureau of Lab. Stats. (Nov. 2018) ................... 5

MBO Partners,

11th Annual State of Independence:

The Great Realization (Dec. 2021) .......................... 5

ix

Bethany A. Davis Noll & Richard L. Revesz,

Presidential Transitions: The New Rules,

39 Yale J. Regul. 1100 (2022) ............ 4, 9, 13, 14, 15

Adam Ozimek,

Freelance Forward Economist Report,

Upwork ..................................................................... 6

INTRODUCTION AND

INTEREST OF AMICUS CURIAE 1

Congress has given the Securities and Exchange

Commission (SEC) absolute discretion to decide

whether to prosecute certain enforcement actions in

court or in an administrative proceeding within the

agency. In so doing, Congress has effectively—and

unlawfully—given the SEC power to decide which

defendants receive certain legal protections and which

do not.

The grant of such unbridled power to an

administrative agency greatly concerns amicus

Independent Women’s Law Center (IWLC). IWLC is

the legal advocacy arm of Independent Women’s

Forum (IWF), a nonprofit, non-partisan 501(c)(3)

organization founded by women to develop and

promote policies that enhance freedom, opportunity,

and well-being. IWLC supports the mission of IWF by

advocating—in court, in Congress, and before

administrative agencies—for equal opportunity,

individual liberty, and respect for the American

constitutional order.

IWLC agrees with Respondents that Section

929P(a) of the Dodd-Frank Act, 15 U.S.C. § 78u-2(a),

lacks the intelligible principle required to guide the

exercise of the SEC’s discretion in pursuing securities

fraud actions. IWLC writes further to detail the ways

in which broad grants of power to the executive limit

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

individual rights, particularly those of minority

populations, and to emphasize the destabilizing effect

of allowing executive agencies to change the rules of

the game with each new administration.

This Court should take this opportunity to revisit

the nondelegation doctrine and to remind Congress

that it may not transfer its policy-making duties to

executive agencies.

SUMMARY OF ARGUMENT

The framers of our Constitution had good reason

to fear the concentration of power in any one branch

of government.

The central innovation of the

Constitution was, therefore, the division of powers

among three co-equal branches of government. This

structural separation of powers and its built-in checks

and balances were not intended to be theoretical

abstractions. To the contrary, they were intended as

“practical and real protections for individual liberty.”

Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 118

(2015) (THOMAS, J., concurring in the judgment)

(citation omitted); accord The Federalist No. 51 (J.

Madison), (Wash. D.C.: Libr. of Cong.), available at

https://guides.loc.gov/federalist-papers/text-51-60#slg-box-wrapper-25493427; Morrison v. Olson, 487 U.S.

654, 697 (1988) (Scalia, J., dissenting) (“[w]ithout a

secure structure of separated powers, our Bill of

Rights would be worthless.”).

Under our Constitution, only Congress—the

branch of government most accountable to the

people—has the power to legislate. And that power is

deliberately constrained in order to prevent legislative

3

majorities from running roughshod over minority

interests.

To put it simply, the framers never meant for

legislating to be easy.

In fact, they made

legislating difficult by design. And they certainly

did not intend for politicians to skirt the Constitution’s

limitations by delegating their power to another

branch of government.

And, yet, that is exactly what Congress has done,

time and time again. The result is that federal

bureaucrats, unaccountable to the people and not

subject to liberty-preserving checks and balances,

have acquired the power to burden individual liberty

in precisely the ways the framers feared. This poses a

particular threat to minority interests and to

individual rights.

Open-ended delegations of

authority also allow agencies to easily reverse

regulatory requirements, undermining the stability of

the law.

For these reasons, and the reasons stated by

Respondents, the Court should affirm the decision

below that Congress unconstitutionally delegated

legislative power to the SEC.

ARGUMENT

I.

Broad Delegations of Power Allow Agencies

to Burden Individual and Minority

Interests.

The framers vested “[a]ll legislative Powers” in

the Congress of the United States. U.S. Const. art. I,

§ 1. The Constitution thus “promises that only the

people’s elected representatives may adopt new

4

federal laws restricting liberty.” Gundy v. United

States, 139 S. Ct. 2116, 2131 (2019) (GORSUCH, J.,

dissenting).

Congress, however, has increasingly delegated

broad policy-making authority to executive agencies.

See Industrial Union Dep’t, AFL-CIO v. American

Petroleum Inst., 448 U.S. 607, 686-687 (1980)

(Rehnquist, J., concurring)); see also Bethany A. Davis

Noll & Richard L. Revesz, Presidential Transitions:

The New Rules, 39 Yale J. Regul. 1100, 1104 & n.17

(2022) (describing trend of presidents relying on

administrative rules rather than legislation to

accomplish their policy objectives). These delegations

fundamentally conflict with the separation of powers

enshrined in the Constitution and have serious

consequences for the people governed by it.

A.

Broad Delegations of Power Allow

Agencies to Adopt Regulations that

Burden Minorities.

Recognizing that legislative majorities can easily

threaten minority rights, the framers of our

Constitution adopted a legislative process designed to

ensure that no federal law would be enacted lightly—

or easily. Gundy, 139 S. Ct. at 2134 (GORSUCH, J.,

dissenting). By insisting on “a legislature composed of

different bodies subject to different electorates,” the

framers ensured that minority votes “would often

decide the fate of proposed legislation.” Id. at 21342135. Our system thus protects minorities from the

tyranny of the majority by deliberately building in

gridlock.

5

Because agencies, which developed long after our

constitutional founding, are subject neither to the

bicameral legislative process nor to the clear “lines of

accountability” that guide and limit Congress’s

discretion, id. at 2134, it is unsurprising that they

often fail to account for important minority interests.

To take just one example, in 2022 the Department of

Labor (the Department) proposed a new regulation

that would reverse its previous rule for determining

whether an individual is operating as an “employee”

or an “independent contractor” under the Fair Labor

Standards Act (FLSA). See Employee or Independent

Contractor Classification Under the Fair Labor

Standards Act, 87 Fed. Reg. 62,218, 62,218 (Oct. 13,

2022) (Independent Contractor Rule). The FLSA itself

does not define the term “independent contractor,” 29

U.S.C. § 203(r), so the Department’s previous rule

tried to bring some clarity to this area of the law.

Such clarity was critical for the over 51 million

independent contractors who were operating in 2021, 2

for it allowed them to find work and to organize their

financial affairs without fear that they would be

deemed part of an employment relationship they

neither desired nor in reality had. 3 This protection of

independent contracting status was particularly

2 MBO

Partners, 11th Annual State of Independence: The

Great Realization 7 (Dec. 2021), https://tinyurl.com/3bkwk5fs.

3 See Karen Kosanovich, Spotlight on Statistics, Workers in

Alternative Employment Arrangements, at tab 9, U.S. Bureau of

Lab. Stats. (Nov. 2018), https://tinyurl.com/2mjdc7ah (reporting

that “Independent contractors overwhelmingly favored their

alternative employment arrangement (79 percent) to a

traditional one (9 percent)”).

6

important to the many women who depend upon the

flexibility that independent contracting provides. 4

The Department’s proposed 2022 rule wholly

disregards the needs of this minority constituency.

Instead of offering an accurate determination of

worker status, the proposed rule concededly

misclassifies some independent contractors as

employees. See Independent Contractor Rule, 87 Fed.

Reg. at 62,260 (explaining that Department does not

believe independent contractors will be misclassified

only “for the most part”). And the Department fails

even to consider the burden on these contractors in its

cost-benefit analysis of the rule. See id. at 62,26562,266.

Because the bureaucrats at the Department are

not elected by any of the 51 million independent

contractors, however, they face no threat of losing

their jobs. Agencies like the Department of Labor

simply lack the accountability the Constitution

requires of Congress and therefore can more easily

4 See Chasing Work: Independent Contractors, Hear real stories

of workers impacted by job-killing regulations, Indep. Women’s

Forum, https://www.iwf.org/chasing-work-independent-contract

ors/ (last visited Oct. 15, 2023); Gabriella Hoffman, Freelancing

Gives Women an Edge. New Labor Department Rule Will Stifle

Our Potential, Indep. Women’s Forum (Sept. 8, 2023),

https://www.iwf.org/2023/09/08/freelancing-gives-women-an-ed

ge-new-labor-department-rule-will-stifle-our-potential/;

Adam

Ozimek, Freelance Forward Economist Report, Upwork,

https://tinyurl.com/mrybzau3 (last visited Oct. 15, 2023);

Courtney Connley, More than 860,000 women dropped out of the

labor force in September, according to new report, CNBC (Oct. 2,

2020, 2:45 PM), https://tinyurl.com/bdzf9npm.

7

disregard the needs of discrete populations they

govern.

B.

Broad Delegations of Power Allow

Agencies to Burden Individual Liberty

Interests.

Shifting policy-making power to executive

agencies is also problematic because agencies may use

their increased authority to eliminate procedures that

protect individual rights. Here, the SEC used its

unfettered discretion to select a method of prosecution

that lowered its burden at trial, bypassing a jury in

which one vote of twelve could have prevented

conviction. Resp’ts’ Br. 47-52. But this is not the only

occasion on which an executive agency has used its

power in liberty-constricting ways.

In the Title IX context, the Department of

Education has proposed rules that disregard

fundamental due process rights of individuals accused

of sexual misconduct in postsecondary educational

institutions. Although sexual assault is a crime, the

Department of Education wants colleges and

universities to investigate and punish this class of

offenses outside the criminal justice system and

without all of the attendant constitutional protections

that our justice system provides. See, e.g., Jennifer C.

Braceras, Title IX, Sexual Misconduct, and Due

Process on Campus, Indep. Women’s Forum 2-3 (Jan.

2020), https://tinyurl.com/2ezrk6hp.

Students

at

public

universities

are

constitutionally entitled to robust procedural

protections, including the right to notice and an

opportunity to be heard. See, e.g., Doe v. Purdue

8

Univ., 928 F.3d 652, 663 (7th Cir. 2019); Doe v.

University of Cincinnati, 872 F.3d 393, 399-400 (6th

Cir. 2017) (citing Mathews v. Eldridge, 424 U.S. 319,

334-335 (1976)); Gorman v. University of R.I., 837 F.2d

7, 12 (1st Cir. 1988). 5 But rules proposed by the

Department of Education in 2022 would eliminate

those basic due process rights. See Nondiscrimination

on the Basis of Sex in Education Programs or

Activities Receiving Federal Financial Assistance, 87

Fed. Reg. 41,390, 41,567 (July 12, 2022) (allowing

investigations to proceed solely on the basis of verbal

complaints).

College investigators should not—and under the

Due Process Clause cannot—trample individual

liberties, even in the pursuit of justice. But agencies

without specific guidance from Congress, and with no

accountability or incentive to protect liberty, often

ignore, and indeed undermine, the process that our

Constitution requires.

II. Broad

Delegations

of

Power

to

Administrative Agencies Destabilize the

Law.

In addition to burdening minority and individual

rights, the broad delegation of policy-making

authority to executive agencies also undercuts the

stability of the law.

The framers’ decision to

“[r]estrict[] the task of legislating to one branch

5 See also 34 C.F.R. §§ 106.30(a), 106.45(b)(5)(vi) (current reg-

ulations codifying due process requirements by requiring schools

to provide accused students with written notice of the charges

against them and an opportunity to inspect the evidence against

them).

9

characterized by difficult and deliberative processes

was * * * designed to promote fair notice and the rule

of law, ensuring the people would be subject to a

relatively stable and predictable set of rules.” Gundy,

139 S. Ct. at 2134 (GORSUCH, J., dissenting) (citation

omitted). That stability has proven increasingly

unattainable in a world of administrative legislation,

where “presidents have come to rely on the

administrative state as a primary mechanism for

accomplishing their policy objectives.” Noll & Revesz,

supra, at 1104.

To be sure, presidential attempts to reverse the

administrative course of their predecessors have gone

on for decades. Id. at 1135 (describing efforts by

President Reagan, among others, to suspend rules

from previous administrations).

But they have

become especially prevalent in recent years. Indeed,

while the Trump administration was criticized for

“unusually aggressive effort[s] to undo the regulatory

output of its predecessor,” id. at 1102, recent research

confirms that the Biden Administration has made

good use of the “Trump-era toolkit on rollbacks,” in

some cases using it even more aggressively than the

Trump administration itself. Ibid. 6

6 One

regulatory tracker counts President Biden’s

administration as proposing or issuing dozens of regulations

overturning rules adopted when President Trump was in office.

See Brookings Inst., Tracking Regulatory Changes in the Biden

Era (last updated Sept. 19, 2023), https://www.brookings.edu

/articles/tracking-regulatory-changes-in-the-biden-era/ (noting

that Biden administration has proposed or issued the following

rules that overturn regulations adopted by President Trump:

10

• Financial

Value Transparency and Gainful Employment

(GE), Financial Responsibility, Administrative Capability,

Certification Procedures, Ability to Benefit (ATB), 88 Fed.

Reg. 32,300 (May 19, 2023) (requiring colleges to meet

employment standards to receive federal funding);

• Multi-Pollutant Emissions Standards for Model Years 2027

and Later Light-Duty and Medium-Duty Vehicles, 88 Fed.

Reg. 29,184 (May 5, 2023) (proposing new emission

standards);

• Reinstatement of HUD’s Discriminatory Effects Standard,

88 Fed. Reg. 19,450 (Mar. 31, 2023) (reinstating 2013 antidiscrimination effects standard);

• National Emission Standards for Hazardous Air Pollutants:

Coal- and Oil-Fired Electric Utility Steam Generating

Units—Revocation of the 2020 Reconsideration and

Affirmation of the Appropriate and Necessary Supplemental

Finding, 88 Fed. Reg. 13,956 (Mar. 6, 2023) (revising

mercury standards);

• Coverage

of Certain Preventive Services Under the

Affordable Care Act, 88 Fed. Reg. 7,236 (Feb. 2, 2023)

(restricting religious

and moral exemptions for

contraceptive coverage);

• Revised Definition of “Waters of the United States”, 88 Fed.

Reg. 3,004 (Jan. 18, 2023) (expanding definition of waters

under federal jurisdiction);

• Safeguarding

the Rights of Conscience as Protected by

Federal Statutes, 88 Fed. Reg. 820 (Jan. 5, 2023) (partially

rescinding rule protecting healthcare workers’ exercise of

conscience rights);

• Prudence and Loyalty in Selecting Plan Investments and

Exercising Shareholder Rights, 87 Fed. Reg. 73,822 (Dec. 1,

2022) (revising criteria for investments made by 401(k) plan

administrators);

• Employee or Independent Contractor Classification Under

the Fair Labor Standards Act, 87 Fed. Reg. 62,218 (Oct. 13,

2022) (changing FLSA regulations and making it more

difficult to be classified as an independent contractor);

11

• Public

Charge Ground of Inadmissibility, 87 Fed. Reg.

55,472 (Sept. 9, 2022) (revising criteria for immigration

admissions);

• Endangered

and Threatened Wildlife and Plants;

Regulations for Listing Endangered and Threatened Species

and Designating Critical Habitat, 87 Fed. Reg. 37,757 (June

24, 2022) (expanding protected habitats);

• Withdrawing

Rule on Securing Updated and Necessary

Statutory Evaluations Timely, 87 Fed. Reg. 32,246 (May 27,

2022) (repealing rule requiring periodic reevaluation of rules

issued by Department of Health and Human Services);

• National

Environmental Policy Act Implementing

Regulations Revisions, 87 Fed. Reg. 23,453 (Apr. 20, 2022)

(revising environmental assessment rules);

• Recission of the Notice of July 23, 2019, Designating Aliens

for Expedited Removal, 87 Fed. Reg. 16,022 (Mar. 21, 2022)

(rescinding rule permitting expedited removal of certain

undocumented immigrants);

• Corporate Average Fuel Economy (CAFE) Preemption, 86

Fed. Reg. 74,236 (Dec. 29, 2021) (reconsidering emissions

waiver for California and partially rescinding rule governing

vehicles);

• Energy Conservation Program: Definition of Showerhead,

86 Fed. Reg. 71,797 (Dec. 20, 2021) (reversing definition of

“showerhead” for water usage standards);

• Energy

Conservation Program for Appliance Standards:

Procedures, Interpretations, and Policies for Consideration

in New or Revised Energy Conservation Standards and Test

Procedures

for

Consumer

Products

and

Commercial/Industrial Equipment, 86 Fed. Reg. 70,892

(Dec. 13, 2021) (revising several appliance energy

standards);

• Pipeline

Safety: Safety of Gas Gathering Pipelines:

Extension of Reporting Requirements, Regulation of Large,

High-Pressure Lines, and Other Related Amendments, 86

Fed. Reg. 63,266 (Nov. 15, 2021) (adopting stricter reporting

standards for pipeline operators);

12

• Standards

of Performance for New, Reconstructed, and

Modified Sources and Emissions Guidelines for Existing

Sources: Oil and Natural Gas Sector Climate Review, 86

Fed. Reg. 63,110 (Nov. 15, 2021) (adopting stricter emission

standards);

• Tip

Regulations Under the Fair Labor Standards Act

(FLSA); Partial Withdrawal, 86 Fed. Reg. 60,114 (Oct. 29,

2021) (rescinding portion of rule governing who could

participate in tip pool);

• Ensuring Access to Equitable, Affordable, Client-Centered,

Quality Family Planning Services, 86 Fed. Reg. 56,144 (Oct.

7, 2021) (reinstating federal funding to clinics that provide

abortions or abortion referrals);

• Regulations Governing Take of Migratory Birds; Revocation

of Provisions, 86 Fed. Reg. 54,642 (Oct. 4, 2021) (revoking

Trump-era standards governing actions affecting migratory

birds);

• Restoring

Affirmatively

Furthering

Fair

Housing

Definitions and Certifications, 86 Fed. Reg. 32,767 (June 23,

2021) (reinstating Obama-era fair housing rule);

• Strengthening

Wage Protections for the Temporary and

Permanent Employment of Certain Immigrants and NonImmigrants in the United States: Delay of Effective and

Transition Dates, 86 Fed. Reg. 26,164 (May 13, 2021)

(delaying rule governing wage requirements for certain

employment-based immigrants);

• Rescinding

the Rule on Increasing Consistency and

Transparency in Considering Benefits and Costs in the

Clean Air Act Rulemaking Process, 86 Fed. Reg. 26,406 (May

14, 2021) (rescinding rule governing cost-benefit analyses

under Clean Air Act);

• Removal of International Entrepreneur Parole Program, 86

Fed. Reg. 25,809 (May 11, 2021) (rejecting Trump-era

proposal to remove entrepreneur program finalized by

Obama administration);

• Making Admission or Placement Determinations Based on

Sex in Facilities Under Community Planning and

Development Housing Programs; Withdrawal; Regulatory

13

Moreover, in addition to using agency power to

repeal and replace rules they dislike, President

Biden’s executive agencies have also attempted to

scuttle disfavored rules simply by refusing to defend

them in court—by confessing error, withdrawing

appeals, or seeking abeyances—and thereby securing

“vacatur of the rules.” Noll & Revesz, supra, at 1103.

Researchers believe such moves will now be

standard operating procedure: “[a] one-term president

now only has approximately two years to finalize

major policies, after which she can be reasonably

confident that the policies will be undone speedily by

a successor.”

Ibid.

Tools including regulatory

suspensions, the adoption of interim final

“interpretive” rules, and the abandonment of litigation

make it all too easy for agencies to reverse their

Review, 86 Fed. Reg. 22,125 (Apr. 27, 2021) (withdrawing

rule permitting single-sex shelters to establish independent

admission requirements related to biological sex);

• National Vaccine Injury Compensation Program: Rescission

of Revisions to the Vaccine Injury Table, 86 Fed. Reg. 21,209

(Apr. 22, 2021) (rescinding rule that removed two injuries

from vaccine injury compensation program);

• Affidavit of Support on Behalf of Immigrants, 86 Fed. Reg.

15140 (Mar. 22, 2021) (withdrawing rule increasing

evidentiary requirements for immigrant sponsors);

• Rebuilding and Enhancing Programs to Resettle Refugees

and Planning for the Impact of Climate Change on

Migration, Exec. Order No. 14,013, 86 Fed. Reg. 8,839 (Feb.

4, 2021) (expanding refugee admissions program);

• Modification

of Registration Requirement for Petitioners

Seeking to File Cap-Subject H–1B Petitions, 86 Fed. Reg.

1,676 (Jan. 8, 2021) (reversing rule giving preference to visa

applicants with higher wages)).

14

predecessors’ regulations at the drop of a hat. Id. at

1106, 1118, 1143-1144.

This is not a sustainable way to govern.

Regulatory pendulum swinging has serious adverse

consequences for individuals subject to agency

demands.

For example, countless independent

contractors who could reliably determine their status

under the Department of Labor’s 2021 FLSA rule will

see their livelihoods at risk under the Department’s

new proposal. See infra at 5-6. In the environmental

sphere, individuals who own land that potentially

encompasses “waters of the United States” have seen

the usability of their property seesaw back and forth

under regulations issued by the last three

administrations. 7

And low-income patients who

depend on certain life-saving drugs had no way of

knowing how much their prescriptions would cost as

the Biden administration’s Department of Health and

7 See Clean Water Rule: Definition of “Waters of the United

States”, 80 Fed. Reg. 37,054 (June 29, 2015) (Obama); Definition

of “Waters of the United States”—Recodification of Pre-Existing

Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) (Trump); The

Navigable Waters Protection Rule: Definition of “Waters of the

United States”, 85 Fed. Reg. 22,250 (Apr. 21, 2020) (Biden),

vacated by Pascua Yaqui Tribe v. U.S. EPA, 557 F. Supp. 3d 949

(D. Ariz. 2021), appeal voluntarily dismissed, No. 21-16791, 2022

WL 1259088 (9th Cir. Feb. 3, 2022); Revised Definition of “Waters

of the United States”, 88 Fed. Reg. 3,004 (Jan. 18, 2023) (Biden),

stayed, Order, Texas v. U.S. EPA, No. 3:23-cv-00017 (S.D. Tex.

July 10, 2023), ECF No. 81 (staying litigation over President

Biden’s rule until EPA has opportunity to amend it consistent

with this Court’s opinion in Sackett v. EPA, 143 S. Ct. 1322

(2023)); Revised Definition of “Waters of the United States”;

Conforming, 88 Fed. Reg. 61,964 (Sept. 8, 2023) (revising

definition consistent with Sackett)).

15

Human Services repeatedly delayed the effective date

of the Trump administration’s Affordable Life-Savings

Medications Rule, “which required certain medical

centers to provide insulin and epinephrine to lowincome patients at lower prices.” Noll & Revesz,

supra, at 1139. These individuals and myriad other

Americans have found themselves subject to evershifting legal and economic demands as each new

administration undoes the regulatory work of the last.

That is not government of the people, by the people, or

for the people; it is a power struggle between warring

factions with the lives of ordinary Americans caught

in the balance.

In short, the only aspect of agency governance

that has proven “relatively stable and predictable,”

Gundy, 139 S. Ct. at 2134 (GORSUCH, J., dissenting)

(citation omitted), is that it regularly changes course.

That is not how the framers designed our

constitutional system to operate. But it is how the

system will continue to function so long as Congress is

permitted to delegate “hard policy choices” to

executive agencies, rather than making them itself.

American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S.

490, 543 (1981) (Rehnquist, J., dissenting) (quoting

Industrial Union Dep’t, 448 U.S. at 671 (Rehnquist, J.,

concurring)). The Court should therefore take this

opportunity to revisit the application of the

nondelegation doctrine and reiterate that “Congress,

and not the Executive Branch,” must “make the policy

judgments” that governing demands. Gundy, 139 S.

Ct. at 2131, 2141 (GORSUCH, J., dissenting).

16

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

KATHRYN E. TARBERT

Counsel of Record

GENE C. SCHAERR

ANNIKA BOONE BARKDULL

SCHAERR|JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

ktarbert@schaerr-jaffe.com

JENNIFER C. BRACERAS

INDEPENDENT WOMEN’S

LAW CENTER

1802 Vernon Street NW

Suite 1027

Washington, DC 20009

(202) 807-9986

Counsel for Amicus Curiae

October 18, 2023