Amicus Curiae Brief — Seafreeze Shoreside, Inc., et al., Petitioners v. Department of the Interior, et al.

Nos. 24-966 & 24-971

In the Supreme Court of the United States

RESPONSIBLE OFFSHORE DEVELOPMENT

ALLIANCE, A D.C. NONPROFIT CORPORATION,

Petitioner,

v.

DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

SEAFREEZE SHORESIDE, INC., et al.,

Petitioners,

v.

DEPARTMENT OF INTERIOR,

Respondents.

On Petition for a Writ of Certiorari to The United States

Court of Appeals For The First Circuit

BRIEF OF AMERICA FIRST POLICY INSTITUTE & THE

INDEPENDENT WOMEN’S FORUM

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Jessica Hart Steinmann

Counsel of Record

Leigh Ann O’Neill

Jack Casali

America First Policy Institute

1455 Pennsylvania Ave NW

Washington, DC 20004

516-993-3154

jsteinmann@americafirstpolicy.com

Beth Parlato

Independent Women’s

Forum

716-474-2876

beth.parlato@iwf.org

i

QUESTIONS PRESENTED

1. Whether the First Circuit’s decision conflicts

with Loper Bright Enters v. Raimondo, 603 U.S.

369 (2024), which requires courts to

independently determine the meaning of

federal statutes rather than deferring to agency

interpretations.

2. Whether the First Circuit’s decision conflicts

with La. Pub. Serv. Comm’n v. FCC, 476 U.S.

355, 374 (1986), which held that “an agency

literally has no power to act . . . unless and until

Congress confers power upon it.”

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

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

TABLE OF CITED AUTHORITIES .......................... iv

IDENTITY AND INTEREST OF AMICUS CURIAE 1

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

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

I. The Supreme Court Should Grant Review

to Clarify That Courts Must Conduct

Independent Statutory Analysis postChevron ................................................................ 3

A.

Loper Bright’s Statutory Analysis

Framework .................................................... 4

B.

Deference is Warranted Only if it

Comes from the “Best” Reading of a

Statute ........................................................... 5

II. Loper Bright Analysis Conducted by the

Sixth Circuit Reveals a Circuit Split Over

the Judiciary’s Interpretive Role postChevron ................................................................ 7

A.

Two Examples of Loper Bright

Analysis in the Sixth Circuit ........................ 7

B.

By

Failing

to

Conduct

Any

Independent Statutory Analysis, the

First Circuit Creates a Circuit Split

Over the Application of Loper Bright ........... 9

iii

III. 43 U.S.C § 1337 Contains Ambiguous

Terms Which the First Circuit Failed to

Interpret the “Best” Meaning Of ......................... 9

A.

The Secretary Was Not Granted

Express Interpretive Authority by §

1337.............................................................. 10

B.

The “Best” Interpretation of § 1337 ............ 13

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

iv

TABLE OF CITED AUTHORITIES

Cases

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

Inc., 467 U.S. 837 (1984). ......................................... 4

In re MCP No. 185,

124 F.4th 993 (6th Cir. 2025) .................................. 5

Kisor v. Wilkie,

588 U.S. 558 (2019) ............................................ 6, 12

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) .............. 2, 3, 4, 5, 6, 8, 9, 12, 13

Moctezuma-Reyes v. Garland,

124 F.4th 416 (6th Cir. 2024) ....................... 8, 9, 10

Pickens v. Hamilton-Ryker IT Sols., LLC,

No. 24-5407, 2025 WL 972526

(6th Cir. Apr. 1, 2025) ................................ 6, 7, 8, 9

Seafreeze Shoreside, Inc. v. U.S. Dept. of the Int.,

123 F.4th 1 (1st Cir. 2024). ............................ 2, 4, 14

Tennessee Valley Authority v. Hill,

437 U.S. 153 (1978). ......................................... 14, 15

Statutes

16 U.S.C. § 1536 (1976 ed.). ........................................... 14

29 U.S.C. § 213(a)(1) .......................................................... 7

29 U.S.C. Ch. 8 .................................................................... 7

v

33 U.S.C. § 1312(a)............................................................. 8

43 U.S.C. § 1337........................................ 2, 3, 4, 10, 12, 15

8 U.S.C. § 1229b(b)(1)........................................................ 8

Other Authorities

U.S. Department of the Interior Bureau of

Ocean Energy Management, Vineyard Wind

1 Offshore Wind Energy Supplement to the

Draft Environmental Impact Statement.

Chapter 3—Environmental Consequence at

3-119 (June 2020). ........................................................ 12

U.S. Dept. of Interior, M-37059, Secretary’s

Duties to Prevent Interference with

Reasonable Uses of the Exclusive Economic

Zone, the High Seas, and the Territorial Seas

in Accordance with Outer Continental Shelf

Lands Act Subsection 8(p), Alternate Energyrelated Uses on the Outer Continental Shelf

(December 14, 2020). ................................................... 13

U.S. Dept. of Interior, M-37067, Secretary’s

Duties under Subsection 8(p)(4) of the Outer

Continental Shelf Lands Act When

Authorizing Activities on the Outer

Continental Shelf (April 9, 2021). ......................... 4, 13

1

IDENTITY AND INTEREST OF AMICI CURIAE1

America First Policy Institute (“AFPI”) is a

501(c)(3) non-profit, non-partisan research institute

dedicated to advancing policies that put the American

people first. Its guiding principles are liberty, free

enterprise, the rule of law, America-first foreign

policy, and a belief that American workers, families,

and communities are the key to our country’s success.

AFPI’s leadership includes many former leaders of

the United States government. AFPI’s leaders and

members alike appreciate that bedrock principles of

separation of powers, enshrined in the Nation’s

constitutional design from its birth, produce critical

checks on government power while promoting

accountability to the American people.

The Independent Women’s Forum (“IWF”) is a nonprofit, non-partisan 501(c)(3) organization founded by

women to foster education and debate about legal,

social, and economic policy issues. IWF promotes

access to free markets and the marketplace of ideas

and supports policies that expand liberty, encourage

personal responsibility, and limit the reach of

government.

Recent developments in administrative law have

made significant improvements providing for

government accountability. Specifically, this Court’s

overturning of Chevron reinstated a vital check on

Petitioner’s and Respondent’s counsel were provided timely

written notice of this brief in accordance with Supreme Court

Rule 37.2. No counsel for a party authored this brief in whole or

in part, and no party or counsel other than the amicus curiae and

its counsel made a monetary contribution intended to fund

preparation or submission of this brief.

1

2

federal agencies, preventing unelected bureaucrats

from writing law themselves through the judicial

deference they have enjoyed over the course of fifty

years. In order to ensure the durability of this

decision, AFPI writes in support of the petition for writ

of certiorari.

SUMMARY OF ARGUMENT

Loper Bright is clear: “Courts must exercise their

independent judgment in deciding whether an agency

has acted within its statutory authority, as the APA

requires.” Loper Bright Enterprises v. Raimondo, 603

U.S. 369, 412 (2024) (emphasis added). While other

circuit courts have taken heed of this reinstated

judicial responsibility and conducted Loper Bright

analysis in their decisions—even when the result of

that analysis is that agency discretion is

appropriate—the First Circuit concluded that their

independent statutory interpretation is not always

necessary. Sometimes, the lower court reasoned, an

agency must be allowed to strike a reasonable

“balance” between statutory requirements and

perceived Congressional intent, apparently regardless

of whether such discretion is afforded to the agency

under the “best” reading of a statute. Seafreeze

Shoreside, Inc. v. U.S. Dept. of the Int., 123 F.4th 1, 26

(1st Cir. 2024) (citing Loper Bright, 603 U.S., at 400).

In fact, the lower court did not determine the “best”

interpretation of 43 U.S.C. § 1337 at all. This judicial

reasoning defies Loper Bright and must be addressed

by this Court to make clear what is expected of courts

across the land post-Chevron.

3

ARGUMENT

I. This Court Should Grant Review to Clarify

That Courts Must Conduct Independent

Statutory Analysis post-Chevron

The issue before the Court is critical to the lasting

impact of Loper Bright. The First Circuit’s ruling

allows an agency to define the scope of its own

statutory authority without independent statutory

interpretation from the judiciary, contrary to Loper

Bright’s instructions. See 603 U.S. 369. Other circuit

courts have approached their role in statutory

interpretation differently since Loper Bright, creating

a split in authority. This Court should grant certiorari

to resolve this split and provide clear guidance on the

standard lower courts must follow post-Chevron.

Congress, through 43 U.S.C. § 1337, delegated two

key prerogatives to the Department of the Interior

(“DOI”) relevant to this case: the authority to issue

permits for offshore wind-energy farms, and the

mandate that all activities conducted under that

subsection “ensure” compliance with twelve specific

criteria. 43 U.S.C. § 1337(p)(4). However, there is

ambiguity as to whether the requirement to “ensure”

those twelve criteria functions as a strict prerequisite

to the Secretary’s permitting authority, or whether

those criteria should be weighed against the broader

interests Congress may have had in empowering the

Secretary to issue leases in the first place. Petitioners

contend that the criteria outlined in § 1337(p)(4) must

be satisfied for a lease to be lawful. The lower court,

acknowledging the challenges that most, if not all,

4

offshore wind projects would face in meeting these

requirements, deferred to the Secretary’s judgment in

concluding that the twelve criteria were reasonably

met, thus justifying the agency’s exercise of power.

Seafreeze Shoreside, Inc., 123 F.4th at 26. However,

this “reasonable” standard is based solely on the

agency’s own interpretation of the statute. See U.S.

Dept. of Interior, M-37067, Secretary’s Duties under

Subsection 8(p)(4) of the Outer Continental Shelf

Lands Act When Authorizing Activities on the Outer

Continental Shelf (April 9, 2021). The lower court did

not conduct any independent statutory analysis to

determine the “best” interpretation of 43 U.S.C.A. §

1337.

Even if the agency’s interpretation were correct,

which remains doubtful, Loper Bright requires the

court to nevertheless conduct its own analysis to

determine the “best” reading of a statute. 603 U.S., at

400. The First Circuit failed to perform this necessary

analysis, and for that reason, this Court should grant

certiorari and remand.

A. Loper

Bright’s

Framework

Statutory

Analysis

In Loper Bright, this Court decisively rejected the

longstanding presumption established by Chevron

that statutory ambiguity constitutes an implicit

delegation of interpretive authority to administrative

agencies. See Loper Bright, 603 U.S. 369; see also,

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

Inc., 467 U.S. 837 (1984). In doing so, the Court

reaffirmed that courts—not agencies—must “decide

5

all relevant questions of law and interpret statutory

provisions.” In re MCP No. 185, 124 F.4th 993, 1002

(6th Cir. 2025) (citing Loper Bright, 603 U.S., at 372).

Now, when faced with an ambiguous statute that has

been interpreted by an agency, a court must exercise

its own independent judgment, deploying every

interpretive tool at its disposal to determine the best

reading of the statute. In re MCP No. 185, 124 F.4th

at 2273; see Loper Bright, 603 U.S. 369. An agency’s

plausible interpretation is no longer satisfactory.

This shift requires courts to take an active role in

defining the limits of agency authority. Loper Bright

prescribes a guide for courts to follow when doing so:

•

(1) determine whether Congress has delegated

authority to an agency—for example, by using

language in a statute stating that an agency

may act “in its judgment” or “upon finding” that

a certain standard has been met. See Loper

Bright 603 U.S., at 395. Then, (2) determine the

precise scope of that delegation; and

•

If a statute lacks explicit language conferring

discretion, the agency’s interpretation carries

no special weight—courts must independently

assess the “single, best meaning” of the statute

at the time of its enactment. Id at 400.

B. Deference is Warranted Only if it Comes

from the “Best” Reading of a Statute

The overruling of Chevron does not mean that

agencies cannot be given deferential authority.

Deference to agency interpretations can be

6

appropriate, but only when Congress has made a clear

and explicit delegation of that authority.

A court conducting the above Loper Bright analysis

will come to one of two conclusions: (1) the best

reading of a statute, as determined by the judiciary, is

that an agency was granted deference to interpret an

ambiguous term, and so the agency interpretation

controls; or (2) the best reading of a statute, as

determined by the judiciary, is that it does not

delegate interpretive authority to an agency, in which

case the court must determine an ambiguous term’s

“single, best meaning” using all the tools available to

it. Loper Bright, 603 U.S., at 400. Therefore, even in

instances where agency discretion is appropriate, a

reviewing court must independently assess the

statutory basis for that discretion and determine the

scope of the agency’s authority to ensure it does not

exceed lawful boundaries. Id. at 395, 413.

When the “best reading of a statute is one which

delegates discretionary authority to an agency,” it will

not be so due to any ambiguity, but the product of

“broad and open-ended” grants of authority under the

heading of “terms like ‘reasonable,’ ‘appropriate,’

‘feasible,’ [and] ‘practicable.’” Pickens v. HamiltonRyker IT Sols., LLC, No. 24-5407, 2025 WL 972526, at

*8 (6th Cir. Apr. 1, 2025) (unpublished) (quoting Kisor

v. Wilkie, 588 U.S. 558, 632 (2019) (Kavanaugh, J.,

concurring)). Thus, agency deference shall not be

presumed—it must be a finding made by the court

based on its own independent interpretation of

statutory language.

7

II.

Loper Bright Analysis Conducted by the

Sixth Circuit Reveals a Circuit Split Over

the Judiciary’s Interpretive Role postChevron

The Sixth Circuit has applied Loper Bright’s new

framework in multiple recent cases, demonstrating

how courts must analyze statutes to determine

whether agency discretion is appropriate.

A. Two Examples of Loper Bright Analysis in

the Sixth Circuit

In Pickens v. Hamilton-Ryker IT Sols., LLC, No.

24-5407, 2025 WL 972526 (6th Cir. Apr. 1, 2025)

(unpublished), the Sixth Circuit Court of Appeals

remanded to the lower court after considering the Fair

Labor Standards Act (“FLSA”) under the new Loper

Bright framework. 29 U.S.C. Ch. 8. The FLSA includes

a statutory provision allowing an exemption for

employees working in a “bona fide executive,

administrative, or professional capacity.” 29 U.S.C. §

213(a)(1). The statute also explicitly authorized the

Secretary of Labor to “define and delimit” these terms.

Id. In analyzing this language, the court noted that

the power to “define” a term is distinct from the power

to “delimit” it—the former involves determining

meaning, while the latter involves setting boundaries

for its application. Pickens, 2025 WL 972526, at *9. By

granting both powers to the Secretary, the court

reasoned that Congress delegated discretion over how

to apply the exemption to the agency. Crucially,

however, the court did not simply defer to the agency’s

interpretation that it likely has discretion without

8

supplying its own analysis confirming such discretion

was warranted. See id.

Similarly, in Moctezuma-Reyes v. Garland, the

Sixth Circuit examined whether the Board of

Immigration Appeals was entitled to deference in

interpreting the phrase “exceptional and extremely

unusual hardship” under the Immigration and

Nationality Act. 124 F.4th 416 (6th Cir. 2024); 8

U.S.C. § 1229b(b)(1). While the phrase itself is broad,

the court emphasized that imprecise terms do not

justify deference according to Loper Bright.

Moctezuma-Reyes, 124 F.4th at 421. For example, the

court noted that Loper Bright pointed to provisions of

the Clean Water Act and Clean Air Act that not only

used broad language but also explicitly empowered

agencies to regulate based on their “judgment,” or

when they “find” that certain conditions exist. Id at

420; Loper Bright 603 U.S. at 395; 33 U.S.C. § 1312(a).

The statute at issue in Moctezuma-Reyes contained no

such express delegation of interpretative authority.

Unlike the statute at issue in Pickens, the relevant

provisions of the Immigration and Nationality Act—

although granting the Secretary the power to act

under certain conditions—do not define those

conditions and, critically, do not confer the agency any

authority to define the standard itself. See

Moctezuma-Reyes, 124 F.4th 416; see also, Pickens,

2025 WL 972526 (2025).

A statute granting an agency authority to exercise

delegated power does not necessarily grant that

agency the authority to determine under what

circumstances that power can be used. See id. The

9

court cannot simply accept the Secretary’s judgment

as reasonable when faced with ambiguous criteria: it

must determine if the Secretary was empowered by

law to determine what is “reasonable” at all.

B. By Failing to Conduct Any Independent

Statutory Analysis, the First Circuit

Created a Circuit Split Over the

Application of Loper Bright

This Court must address the circuit split over the

application of Loper Bright. In Pickens and

Moctezuma-Reyes, the Sixth Circuit undertook a

careful analysis of the statutory text, examining

whether Congress included language explicitly

granting interpretive authority to the agency. See 124

F.4th 416. The First Circuit failed to conduct a similar

analysis. Instead, it accepted the agency’s

interpretation without independently evaluating the

statute’s meaning. That is an error. “Courts must

exercise their independent judgment in deciding

whether an agency has acted within its statutory

authority, as the APA requires.” Loper Bright, 603

U.S. at 412. (emphasis added).

III.

43 U.S.C § 1337 Contains Ambiguous Terms

Which the First Circuit Failed to Interpret

the “Best” Meaning Of

The statute at issue provides the following:

The Secretary shall ensure that any

activity under this subsection is carried

out in a manner that provides for:

10

(A) safety;

(B) protection of the environment;

(C) prevention of waste;

…

(H) a fair return to the United States

for any lease, easement, or right-ofway under this subsection;

(I) prevention of interference with

reasonable uses (as determined by the

Secretary) of the exclusive economic

zone, the high seas, and the territorial

seas;

…

43 U.S.C.A. § 1337 (p)(4). Similar to Moctezuma-Reyes,

where the court held that the Immigration and

Nationality Act allowed the Secretary to act when

specific preconditions were met, but did not grant the

Secretary authority to define those broad conditions, §

1337(p)(4) requires the Secretary to “ensure” certain

ambiguous criteria (such as “safety” and “fair return”),

but contains no explicit provision deferring to the

Secretary’s interpretation of those conditions. See 124

F.4th 416.

A. The Secretary Was Not Granted Express

Interpretive Authority by § 1337

While the Secretary, through the Bureau of Ocean

Energy Management (“BOEM”), considered various

studies, reports, and scientific documents to

determine that authorizing Vineyard Wind 1 would

fulfill the Secretary’s responsibilities under 43 U.S.C.

§ 1337(p)(4), that determination is not automatically

11

entitled to deference. The lower court should have

conducted an independent statutory analysis to

determine the meaning of the twelve criteria and the

extent to which the Secretary must “ensure” their

fulfillment. It failed to do so.

Take “safety,” for example. Vineyard Wind 1’s

Environmental Impact Statement admits that the

presence of many wind turbines in this region of the

outer Continental Shelf will pose “major” adverse

impacts on the navigation of shipping vessels,

commercial fishing boats, and military warcraft.

The addition of up to 795 foundations

within the geographic analysis area

between

2021

and

2030

would

incrementally

change

navigational

patterns and increase navigational

complexity for vessels and aircraft

operating in the region around wind

energy projects. During construction

periods between 2021 and 2030, use of

stationary lift vessels in the lease areas

and cranes at port locations would

further increase navigational complexity

in areas immediately around these tall

structures.

Increased

navigational

complexity would increase the risk of

allisions for military and national

security vessels as discussed above, and

for military and national security

aircraft… As multiple projects are built,

changing navigation patterns could

concentrate vessels around the edges of

12

the cumulative WDA, potentially causing

space use conflicts and increasing the

risk

of

collisions

between

military/national security and civilian

vessels.

U.S. Department of the Interior Bureau of Ocean

Energy Management, Vineyard Wind 1 Offshore Wind

Energy Supplement to the Draft Environmental

Impact Statement at 3-119 (June 2020).

Given these risks, the question remains whether

the Secretary’s approval of Vineyard Wind 1 satisfies

the statutory requirement to “provide for” “safety.”

Perhaps it does. However, the discretion to determine

whether the criteria of § 1337(p)(4) were “ensured”

was not granted to the Secretary—it is the role of the

courts to independently interpret what this statutory

requirement is, then find whether it was satisfied.

Loper Bright is clear: for an agency to have

discretion, a statute must either “expressly delegate”

authority to an agency to define a term or empower an

agency to prescribe rules to “fill up the details” of a

statutory scheme or regulate the limits imposed by a

term or phrase such as through the words

“appropriate” or “reasonable,” “feasible,” [and]

“practicable.” Kisor v. Wilkie, 588 U.S. 558, 632

(Kavanaugh, J., concurring). See Loper Bright 603

U.S. 369. None of these phrases are found in 43 U.S.C.

§ 1337.

This would suggest that the Secretary does not

have discretion to determine the meaning of “safety”

or other criteria or what it means for them to be

13

“ensured.” The statute is ambiguous, as two

memoranda from two different administrations

evince. See U.S. Dept. of Interior, M-37067,

Secretary’s Duties under Subsection 8(p)(4) of the

Outer Continental Shelf Lands Act When Authorizing

Activities on the Outer Continental Shelf (April 9,

2021); see also, U.S. Dept. of Interior, M-37059,

Secretary’s Duties to Prevent Interference with

Reasonable Uses of the Exclusive Economic Zone, the

High Seas, and the Territorial Seas in Accordance

with Outer Continental Shelf Lands Act Subsection

8(p), Alternate Energy-related Uses on the Outer

Continental Shelf (December 14, 2020). Therefore, it is

the duty of the judiciary to determine the statute’s

meaning, and the parameters of the Secretary’s

authority under it.

The lower court, by failing to conduct their own

analysis, did not satisfy that “elemental proposition

reflected by judicial practice dating back to Marbury:

that courts decide legal questions by applying their

own judgment.” Loper Bright, 603 U.S., at 371.

B. The “Best” Interpretation of § 1337

There is Supreme Court precedent supporting the

view that § 1337(p)(4) should be interpreted as a

highly restrictive barrier Congress placed on the

agency’s ability to permit energy projects under the

subsection. Although the lower court appealed to

common sense by reasoning “a statute encouraging

the development of offshore wind projects but

obligating the BOEM to ensure that such projects be

carried out in a manner that provides for safety, for

14

example, cannot be read to prohibit project approval

simply because one could imagine the project being

involved in an accident,” this Court has long affirmed

that when a statute’s language is clear, courts must

enforce and interpret the statute as written, even if

doing so results in unfavorable or counterproductive

outcomes. Seafreeze Shoreside, Inc., 123 F.4th at 26;

see Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978).

In Tennessee Valley Authority, the Supreme Court

stated:

The court’s appraisal of the wisdom or

unwisdom of a particular course

consciously selected by Congress is to be

put aside in the process of interpreting a

statute. Once the meaning of an

enactment is discerned and its

constitutionality determined, the judicial

process comes to an end.

437 U.S. at 173.

In Tennessee Valley Auth., the Supreme Court

interpreted § 7 of the Endangered Species Act, which

contained a provision that all federal agencies must

“ensure that actions authorized, funded, or carried out

by them do not jeopardize the continued existence” of

an endangered species. Id. at 153 (citing 16 U.S.C. §

1536 (1976 ed.)). The court found no exceptions in the

statute’s provisions, and highlighted the rhetoric used

by members of Congress advocating the supreme

importance of biological diversity. Tennessee Valley

Auth., 437 U.S., at 177 (“The legislative proceedings in

15

1973 are, in fact, replete with expressions of concern

over the risk that might lie in the loss of any

endangered species.”). This Court felt obligated to

uphold the plain meaning of the words selected by

Congress, even if doing so resulted in the permanent

halting of a virtually completed dam for which

Congress had already spent than $100 million, for the

sake of “a relatively small number of three-inch fish.”

Tennessee Valley Auth., 437 U.S. at 172.

The Court in Tennessee Valley Auth., a preChevron case, did not allow the agency to employ a

“reasonable” standard to satisfy legislative directives

when its independent statutory interpretation found

no such discretion. See id. at 195. Perhaps the lower

court in this matter should have come to a similar

conclusion. Reasonable as it may be to allow the

Secretary to employ a balancing test to weigh the

broad requirements of 43 U.S.C. § 1337 against other

legislative interests, if that is not the “best”

interpretation of a statute, then such discretion ought

not be allowed. Section 1337, on its face, appears to

impose a high bar for project approval, just like the

Endangered Species Act the Court grappled with in

Tennessee Valley Auth.. See 437 U.S. 153. When a

statute plainly states that the Secretary “shall ensure”

that specified criteria are "provided for,” it is not the

judiciary's role to evaluate the wisdom of Congress’

requirements—it is to determine and apply the law as

it is written.

16

CONCLUSION

For the foregoing reasons, the Petition should be

GRANTED.

Respectfully submitted,

Jessica Hart Steinmann

Counsel of Record

Leigh Ann O’Neill

Jack Casali

Gina M. D’Andrea

America First Policy Institute

1455 Pennsylvania Ave NW, Suite 225

Washington, DC 20004

516-993-3154

jsteinmann@americafirstpolicy.com

Beth Parlato

Senior Legal Advisor, Independent

Women's Law Center

Independent Women’s Forum

716-474-2876

beth.parlato@iwf.org

Counsel for Amicus Curiae