Amicus Curiae Brief — RMS of Georgia, LLC, dba Choice Refrigerants, Petitioner v. Environmental Protection Agency, et al.

No. 25-1079

IN THE

Supreme Court of the United States

_________________________________________________

RMS OF GEORGIA, LLC, D/B/A CHOICE REFRIGERANTS,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

April 1, 2026

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................2

Argument .....................................................................4

I.

Separation of Powers Protects Liberty .............4

II.

The Constitution Bars Congress From

Transferring Its Legislative Power ..................6

III.

The AIM Act Grants EPA Boundless Discretion

to Make Policy Choices .....................................7

IV.

Section 7675(e)(3) Lacks Any Principle, Let

Alone An Intelligible Principle.........................9

V.

The Blue-Pencil Treatment Compounds the

Legislative Delegation Disease ......................13

VI.

This Court Should Restore Equilibrium Among

the Branches ...................................................15

A. Delegation Run Riot Has Had Awful Effects on

Our Constitutional Republic ..........................16

B. This Court Should Jettison the “Intelligible

Principle” Remark ..........................................18

C. Line-Drawing Questions Cannot Justify

Ignoring the Constitution’s Demands............21

D. There Are Judicially Manageable Standards

For Enforcing Nondelegation .........................22

E. Enforcing Article I’s Vesting Clause Will Have

Salutary Effects ..............................................23

Conclusion .................................................................24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ........................................... 10

Allstates Refractory Contractors, LLC v. Su,

144 S. Ct. 2490 (2024) ....................................... 18

Allstates Refractory Contractors, LLC v. Su,

79 F.4th 755 (6th Cir. 2023) ....................... 10, 20

Am. Textile Mfrs. Inst. v. Donovan,

452 U.S. 490 (1981) ........................................... 12

CFTC v. Schor,

478 U.S. 833 (1986) ........................................... 14

Collins v. Yellen,

594 U.S. 220 (2021) ............................................. 5

Consumers’ Rsch. v. FCC,

88 F.4th 917 (11th Cir. 2023) ..................... 19, 20

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

575 U.S. 43 (2015) ..................................... 5, 6, 22

FCC v. Consumers’ Rsch.,

606 U.S. 656 (2025)…. . 4, 5, 9, 10, 12, 14, 15, 17,

18, 19, 20, 23

iii

FEC v. Ted Cruz for Senate,

596 U.S. 289 (2022) ........................................... 16

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ........................................... 23

Gundy v. United States,

588 U.S. 128 (2019) ............... 7, 10, 12, 20, 21, 23

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ........................................... 13

Heating, Air Conditioning & Refrigeration

Distributors Int’l v. EPA,

71 F.4th 59 (D.C. Cir. 2023) ........................... 7, 8

Indus. Union Dep’t, AFL-CIO v. API,

448 U.S. 607 (1980) ....................................... 4, 10

INS v. Chadha,

462 U.S. 919 (1983) ....................................... 9, 19

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022) ............................. 12

Jennings v. Rodriguez,

583 U.S. 281 (2018) ........................................... 14

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

276 U.S. 394 (1928) ........................................... 19

Learning Res., Inc. v. Trump,

146 S. Ct. 628 (2026) ........................................... 7

iv

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

591 U.S. 657 (2020) ........................................... 14

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........................................... 20

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................ 22

Mich. Gambling Opposition v. Kempthorne,

525 F.3d 23 (D.C. Cir. 2008) ....................... 14, 15

Mistretta v. United States,

488 U.S. 361 (1989) ........................................... 21

Morrison v. Olson,

487 U.S. 654 (1988) ............................................. 5

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ............................................. 11

Murphy v. NCAA,

584 U.S. 453 (2018) ........................................... 13

Myers v. United States,

272 U.S. 52 (1926) ............................................... 5

NFIB v. OSHA,

595 U.S. 109 (2022) ............................................. 6

NLRB v. Canning,

573 U.S. 513 (2014) ............................................. 5

v

Oklahoma v. United States,

62 F.4th 221 (6th Cir. 2023) ............................. 23

Opp Cotton Mills, Inc. v. Adm’r of Wage &

Hour Div.,

312 U.S. 126 (1941) ........................................... 11

Panama Ref. Co. v. Ryan,

293 U.S. 388 (1935) ..................................... 10, 11

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ............................................... 6

Reno v. ACLU,

521 U.S. 844 (1997) ........................................... 14

RMS of Ga., LLC v. EPA,

64 F.4th 1368 (11th Cir. 2023) ....................... 7, 8

Seila Law LLC v. Consumer Fin. Prot.

Bureau,

591 U.S. 197 (2020) ....................................... 5, 14

Springer v. Gov’t of Philippine Islands,

277 U.S. 189 (1928) ............................................. 5

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) ................... 6, 15, 19

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ............. 17, 19, 20, 23

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ............................................... 13

vi

United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921) ............................................. 15

United States v. Nichols,

784 F.3d 666 (10th Cir. 2015) ................. 9, 12, 22

United States v. Rutherford,

442 U.S. 544 (1979) ........................................... 13

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................. 2, 5, 6, 21

West Virginia v. EPA,

597 U.S. 697 (2022) ............................... 16, 21, 22

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................. 6, 9, 11, 12, 14, 20

Yakus v. United States,

321 U.S. 414 (1944) ..................................... 10, 11

Constitution

U.S. Const. art. I, § 1 .......................................... 6, 20

Statutes

42 U.S.C. § 7413(a) ................................................... 7

42 U.S.C. § 7413(b) ................................................... 7

42 U.S.C. § 7413(c) ................................................... 7

42 U.S.C. § 7413(d) ................................................... 7

42 U.S.C. § 7651c(e) ............................................... 23

vii

42 U.S.C. § 7651d ................................................... 23

42 U.S.C. § 7671c(a) ......................................... 11, 23

42 U.S.C. § 7675(e)(2)(A) .......................................... 7

42 U.S.C. § 7675(e)(3) ......................................... 8, 10

42 U.S.C. § 7675(e)(3)(A) .......................................... 7

42 U.S.C. § 7675(e)(3)(B) .......................................... 7

42 U.S.C. § 7675(e)(4)(B)(iv) .................................. 11

42 U.S.C. § 7675(k)(1)(C) ......................................... 7

Federal Register

86 Fed. Reg. 55,116 (Oct. 5, 2021) ........................... 8

87 Fed. Reg. 61,314 (Oct. 11, 2022) ....................... 11

Rules

Sup. Ct. R. 37.2 ......................................................... 1

Other Authorities

Aaron Gordon,

Nondelegation,

12 N.Y.U. J.L. & Liberty 718 (2019) ................ 16

Amy Coney Barrett,

Suspension and Delegation,

99 Cornell L. Rev. 251 (2014) ........................... 19

viii

Antonin Scalia,

A Note on the Benzene Case,

Reg., July/Aug. 1980 ..................................... 4, 24

David Schoenbrod,

Delegation and Democracy: A Reply to

My Critics,

20 Cardozo L. Rev. 731 (1999) .......................... 16

Federalist No. 47 (Madison)..................................... 5

Federalist No. 78 (Hamilton) ................................. 22

Gary Lawson,

Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) .................................. 13

John O. McGinnis & Michael B. Rappaport,

Presidential Polarization,

83 Ohio St. L.J. 5 (2022) ................................... 18

Louis J. Capozzi III,

The Past and Future of the Major

Questions Doctrine,

84 Ohio St. L.J. 191 (2023) ............................... 16

Neomi Rao,

Administrative Collusion: How

Delegation Diminishes the Collective

Congress,

90 N.Y. U. L. Rev. 1463 (2015) ............. 16, 17, 22

Paul Larkin,

Revitalizing the Nondelegation Doctrine,

23 Federalist Soc’y Rev. 238 (2022).................. 23

ix

Philip Hamburger,

Nondelegation Blues,

91 Geo. Wash. L. Rev. 1083 (2023)….6, 17, 18, 19,

20, 21

Ronald A. Cass,

Fixing Deference: Delegation, Discretion,

and Deference under Separated Powers,

17 NYU J.L. & Liberty 1 (2023) ....................... 21

Thomas Merrill,

The Story of Chevron: The Making of an

Accidental Landmark,

66 Admin. L. Rev. 253 (2014) ........................... 20

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas include the separation of

powers and constitutionally limited government. As

part of this mission, it appears as amicus curiae before

federal and state courts.

Here, AFPF writes to highlight the separation of

powers issues that underlie this case, which presents

a familiar question: which branch of government is

responsible for making public policy and how? Under

the Constitution, it is not the role of Article III courts

to set public policy by judicially revising statutes and,

in effect, doing Congress’s job for it. Nor is it the job of

unelected

federal

bureaucrats.

Indeed,

the

Constitution categorically bars administrative bodies

from exercising legislative power. Instead, it

1 All parties have received timely notice of amicus curiae’s intent

to file this brief. Amicus curiae states that no counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

exclusively tasks the democratically elected,

politically accountable branches—Congress and the

President—with resolving policy questions through

the deliberately arduous legislative process, subject to

constitutional limits on federal power.

SUMMARY OF ARGUMENT

This case is not about what constitutes sound

public policy. The questions whether the American

Innovation and Manufacturing Act of 2020’s (“AIM

Act”) cap-and-trade phasedown of hydrofluorocarbons

(“HFCs”) is wise policy and how the Environmental

Protection Agency (“EPA”) should allocate allowances

are not before this Court. Those policy questions are

for Congress to answer and beside the point. Instead,

this case is about who decides, and by what process:

unelected bureaucrats housed in the Executive

branch, life-tenured federal judges, or, as the

Constitution promises, Congress.

In this country, all governmental power must flow

from its proper source: We the People. Our system of

government relies on the consent of the governed,

memorialized in the Constitution, which exclusively

tasks the People’s elected representatives with

making policy choices. And under the Constitution,

the political branches may only do so through duly

enacted legislation that survives bicameralism and

presentment, a deliberately difficult process designed

to ensure such laws reflect broad political consensus.

Toward this end, the Constitution flatly prohibits

Congress from transferring any of its legislative

power to other entities. Instead, such matters “must

be entirely regulated by the legislature itself[.]”

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).

3

Here, Congress has done that which the

Constitution forbids by transferring the power to

make legislative policy choices to unelected

administrators. A single sentence in the AIM Act

grants EPA the power to choose which businesses

receive the coveted allowances to produce or consume

HFCs, and in what amount. Tellingly, although the

AIM Act is a model of legislative drafting and

precision in many respects, it adopts a Choose-YourOwn-Adventure approach on this key (politically

fraught) question, providing zero guidance or

constraints on EPA’s ability to choose which

businesses survive. This allows EPA to decide the

fates of affected businesses however it wants, for

whatever reason it wants.

As an original matter, the AIM Act violates Article

I’s Vesting Clause because it grants EPA the power to

make generally applicable policy choices that legally

bind private parties. Even under this Court’s modern

light-touch nondelegation doctrine—which strays

from the Constitution’s original public meaning—this

delegation is unlawful because it is devoid of any

principle, let alone an intelligible principle, to bound

EPA’s discretion or for courts to use to ascertain

whether EPA has obeyed Congress’s will. Anemic as

it might be, this Court’s nondelegation doctrine as

currently articulated requires Congress to provide at

least some guidance. Here, there simply is none.

It is no answer for Article III courts to stand in

Congress’s shoes and act as councils of revision, as

happened here. The panel did not so much interpret

as rewrite the AIM Act to supply the guidance

Congress omitted—an exercise of Article I legislative,

not Article III judicial, power. It thereby arrogated to

4

itself power to make hard policy choices the

Constitution reserves to Congress, “usurp[ing]

legislative power” and “dictat[ing] its own terms for

Congress’s surrender.” FCC v. Consumers’ Rsch., 606

U.S. 656, 745 (2025) (Gorsuch, J., dissenting).

There is no way to sweep this constitutional

disorder under the rug by conjuring away

nondelegation violations under the guise of statutory

interpretation. It is long past time for the judiciary to

“reshoulder the burden of ensuring that Congress

itself make the critical policy decisions,” Indus. Union

Dep’t, AFL-CIO v. API, 448 U.S. 607, 687 (1980)

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

“hewing” the nondelegation doctrine “from the ice,”

Antonin Scalia, A Note on the Benzene Case, Reg.,

July/Aug. 1980, at 28.

The Petition provides an ideal opportunity to put

Congress on notice that it must do its job and cannot

abdicate its nondelegable duty to make politically

difficult policy choices to unelected bureaucrats or,

alternatively, unelected judges. Our constitutional

Republic will be healthier for it. For the foregoing

reasons, this Court should grant the Petition.2

ARGUMENT

I.

Separation of Powers Protects Liberty.

“[T]he Constitution’s core, government-structuring

provisions are no less critical to preserving liberty

2 This Court should also grant the Petition in Pheasant v. United

States, No. 25–6911, and hear both cases alongside one another.

5

than are the later adopted provisions of the Bill of

Rights.” NLRB v. Canning, 573 U.S. 513, 571 (2014)

(Scalia, J., concurring in judgment). “‘If there is a

principle in our Constitution, indeed in any free

Constitution, more sacred than another, it is that

which separates the Legislative, Executive and

Judicial powers.’” Myers v. United States, 272 U.S. 52,

116 (1926) (citation omitted).

Toward this end, “[t]he Constitution sets out three

branches of Government and provides each with a

different form of power—legislative, executive, and

judicial.” Seila Law LLC v. Consumer Fin. Prot.

Bureau, 591 U.S. 197, 247 (2020) (Thomas, J.,

concurring in part, dissenting in part) (citations

omitted). “[T]he legislature makes, the executive

executes, and the judiciary construes the law[.]”

Wayman, 23 U.S. (10 Wheat.) at 46. “These grants are

exclusive.” Dep’t of Transp. v. Ass’n of Am. R.R., 575

U.S. 43, 67 (2015) (Thomas, J., concurring in the

judgment). Thus, “the legislature cannot exercise

either executive or judicial power; the executive

cannot exercise either legislative or judicial power; the

judiciary cannot exercise either executive or

legislative power.” Springer v. Gov’t of Philippine

Islands, 277 U.S. 189, 201–02 (1928).

The Founders divided these powers “to ensure ours

would indeed be a Nation ruled by ‘We the People.’”

Consumers’ Rsch., 606 U.S. at 744 (Gorsuch, J.,

dissenting) (citation omitted). The point is “not merely

to assure effective government but to preserve

individual freedom.” Morrison v. Olson, 487 U.S. 654,

727 (1988); see Collins v. Yellen, 594 U.S. 220, 245

(2021); see also Federalist No. 47 (Madison). This

separation “might seem inconvenient and inefficient

6

to those who wish to maximize government’s coercive

power.” Texas v. Rettig, 993 F.3d 408, 409 (5th Cir.

2021) (Ho, J., dissenting from denial of rehearing en

banc). But for the Founders, it was not merely a

matter of abstract political theory; the division of

powers provided “practical and real protections for

individual liberty[.]” Perez v. Mortg. Bankers Ass’n,

575 U.S. 92, 118 (2015) (Thomas, J., concurring in the

judgment). History has proven the Founders right.

II.

The Constitution Bars Congress From

Transferring Its Legislative Power.

Congress is not allowed to duck and weave its way

out of the Constitution’s accountability checkpoints by

divesting itself of its legislative responsibilities. See

NFIB v. OSHA, 595 U.S. 109, 124–25 (2022) (per

curiam) (Gorsuch, J., concurring); Ass’n of Am. R.R.,

575 U.S. at 61 (Alito, J., concurring). Toward this end,

the Constitution bars Congress from transferring

“powers which are strictly and exclusively legislative”

to other entities. Wayman, 23 U.S. (10 Wheat.) at 42.

Instead, such matters “must be entirely regulated by

the legislature itself[.]” Id. at 43.

Article I’s text makes this pellucidly clear: “All

legislative Powers herein granted shall be vested in a

Congress, which shall consist of a Senate and House

of Representatives.” U.S. Const. art. I, § 1. “This text

permits no delegation of those powers[.]” Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The

Constitution’s structure reenforces this point. See

Philip Hamburger, Nondelegation Blues, 91 Geo.

Wash. L. Rev. 1083, 1175–76 (2023). It makes clear

that “when it comes to legislative power, Congress is

the principal and executive officials are the agents.”

7

Learning Res., Inc. v. Trump, 146 S. Ct. 628, 653

(2026) (Gorsuch, J., concurring). Not vice versa.

Indeed, “it would frustrate ‘the system of government

ordained by the Constitution’ if Congress could merely

announce vague aspirations and then assign others

the responsibility of adopting legislation to realize its

goals.” Gundy v. United States, 588 U.S. 128, 153

(2019) (Gorsuch, J., dissenting) (citation omitted).

III.

The AIM Act Grants EPA Boundless

Discretion to Make Policy Choices.

The AIM Act’s cap-and-trade scheme runs

roughshod over the Constitution’s structural

guardrails, granting EPA untrammeled power to

reshape a multi-billion-dollar industry to achieve

whatever policy aims it may conjure.

“The AIM Act directs the EPA to ‘phas[e] down the

production [and consumption] of regulated substances

. . . through an allowance allocation and trading

program.’” Heating, Air Conditioning & Refrigeration

Distributors Int’l (“HARDI”) v. EPA, 71 F.4th 59, 64

(D.C. Cir. 2023) (quoting 42 U.S.C. § 7675(e)(3)(A)–

(B)). “An allowance is like a license; without one, ‘no

person shall . . . produce’ or ‘consume’ HFCs.”3 Id. at

62 (quoting 42 U.S.C. § 7675(e)(2)(A)). “By placing a

cap on allowances, Congress created a kind of ‘zerosum’ game for the HFC industry. Any gain in permits

that one firm gets must be offset by a loss to another

firm and vice versa.” RMS of Ga., LLC v. EPA, 64

3 Violations of AIM Act regulations carry substantial civil,

administrative, and even criminal consequences, including

imprisonment. See 42 U.S.C. § 7675(k)(1)(C); id. § 7413(a)–(d).

8

F.4th 1368, 1374 (11th Cir. 2023). The statute tasks

EPA with creating and designing the “allowance

allocation and trading program.” 42 U.S.C.

§ 7675(e)(3). This gives EPA great power, effectively

allowing EPA to decide which businesses survive,

implicating core private rights.

Tellingly, certain provisions in the AIM Act

resemble “a math equation” or otherwise give EPA

“detailed instructions.” HARDI, 71 F.4th at 66–67.

Congress, however, punted the critical—and

politically difficult—policy choice of who should

receive the allowances to unelected Executive

officials, providing literally no guidance whatsoever

as to how they are supposed to do this. See 42 U.S.C.

§ 7675(e)(3). As EPA itself acknowledged: “In contrast

to the significant detail provided in the AIM Act on

how to establish production and consumption

baselines and the required set percentage reductions

in specific years from that baseline, the AIM Act

provides EPA considerable discretion in determining

how to establish the allowance program and how to

allocate allowances[.]”4 86 Fed. Reg. 55,116, 55,142

(Oct. 5, 2021). That is an understatement.

In practical terms, what this means is that EPA

has unfettered power to choose, if it wants, to allocate

allowances entirely to domestic producers, thereby

shutting importers out of the market, or vice versa.

4 Elsewhere, EPA has put it more plainly: “There is no

congressional guideline on EPA’s discretion.” Oral Arg. 1:12:40–

46, HARDI v. EPA, No. 21-1251 (D.C. Cir. Nov. 18, 2022),

https://media.cadc.uscourts.gov/recordings/docs/2022/11/211251.mp3.

9

Likewise, EPA can choose between favoring small or

large businesses, established companies or new

market participants. In short, EPA has unbounded

discretion to choose between the various stakeholders

that produce or consume HFCs in allocating

allowances. There is nothing in the statute itself that

bounds EPA’s discretion to refuse to allocate any

allowances to disfavored entities. Nor does the statute

constrain EPA’s power to subsidize entire categories

of favored market participants. That is legislative

power to make policy choices impacting core private

property and economic liberty rights. Cf. INS v.

Chadha, 462 U.S. 919, 952 (1983) (government

actions that “alter[] the legal rights, duties, and

relations of persons” are “legislative”).

In sum, “Congress pointed to a problem that

needed fixing and more or less told the Executive to

go forth and figure it out.” United States v. Nichols,

784 F.3d 666, 674 (10th Cir. 2015) (Gorsuch, J.,

dissenting from denial of rehearing en banc).

IV.

Section 7675(e)(3) Lacks Any Principle,

Let Alone An Intelligible Principle.

Under this Court’s modern precedent, “Congress

must ‘lay down by legislative act an intelligible

principle’” when it “confers decisionmaking authority

upon agencies[.]” Whitman, 531 U.S. at 472 (citation

omitted). This “test is context dependent.” Consumers’

Rsch., 606 U.S. at 739 (Gorsuch, J., dissenting). For

example, this Court has said “‘the degree of agency

discretion that is acceptable varies according to the

scope of the power congressionally conferred.’” Id. at

673 (majority op.) (citation omitted). But Congress

must at a minimum “ma[k]e clear both ‘the general

10

policy’ that the agency must pursue and ‘the

boundaries of [its] delegated authority.’” Id. (citation

omitted). And in all cases, delegations must supply

standards that “are sufficiently definite and precise to

enable Congress, the courts and the public to

ascertain whether the” agency “has conformed to

those standards.” Yakus v. United States, 321 U.S.

414, 426 (1944). Cf. Indus. Union Dep’t, AFL-CIO, 448

U.S. at 686 (Rehnquist, J., concurring in judgment).

Carefully parsed, this Court’s precedent “requires

a court to analyze a statute for two things: (1) a factfinding or situation that provokes Executive action or

(2) standards that sufficiently guide Executive

discretion—keeping in mind that the amount of detail

governing Executive discretion must correspond to

the breadth of delegated power.” Allstates Refractory

Contractors, LLC v. Su, 79 F.4th 755, 776 (6th Cir.

2023) (Nalbandian, J., dissenting). Cf. Gundy, 588

U.S. at 166 (Gorsuch, J., dissenting). Neither

condition obtains here.

First, EPA’s power under § 7675(e)(3) to allocate

allowances however it deems fit to whoever it wants

is not contingent on fact finding or the existence of any

particular situation. Instead, EPA “is free to select as

[it] chooses . . . and then to act without making any

finding[s],” Panama Ref. Co. v. Ryan, 293 U.S. 388,

432 (1935), as it “roam[s] at will” “in that wide field of

legislative possibilities,” A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 538 (1935).

Second, § 7675(e)(3) provides zero guidance on

what standards EPA should use to allocate the vast

11

majority of all allowances for U.S. industry.5

“Congress has declared no policy, has established no

standard, has laid down no rule.” Panama Ref. Co.,

293 U.S. at 430. Section 7675(e)(3) “provide[s] literally

no guidance for the exercise of discretion,” Whitman,

531 U.S. at 474, by EPA to decide who should receive

those allowances and what share. This “absence of

standards” makes it “impossible . . . to ascertain

whether the will of Congress has been obeyed[.]”

Yakus, 321 U.S. at 426.

There simply is no standard “such that Congress,

the courts and the public can ascertain whether the

agency has conformed to” it. Opp Cotton Mills, Inc. v.

Adm’r of Wage & Hour Div., 312 U.S. 126, 144 (1941).

For example, there is no way for a court reviewing

EPA’s allowance allocations to employ the arbitrary

and capricious test to determine whether EPA “has

relied on factors which Congress has not intended it

to consider,” Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), as

Congress has not provided any. For that matter, the

statute lacks a declaration of policy, statement of

legislative purpose, or even findings for the agency to

5 The AIM Act specifies that some allowances must be granted

on a priority basis to six types of HFC users. See 42 U.S.C.

§ 7675(e)(4)(B)(iv). But those six temporarily prioritized uses

account for less than 3 percent of regulated HFC consumption.

See 87 Fed. Reg. 61,314, 61,316–17 (Oct. 11, 2022). That

Congress provided guidance for what amounts to roughly 2

percent of the allowances underscores Congress’s failure to do so

for the other 98 percent. Tellingly, too, Congress has shown it

does know how to provide guidance for allocating allowances in

other analogous programs. See, e.g., 42 U.S.C. § 7671c(a).

12

“rummage[]” around in for an intelligible principle.

See Nichols, 784 F.3d at 674 (Gorsuch, J., dissenting

from denial of rehearing en banc).

While this Court’s current precedent indicates this

lack of guidance might be acceptable for small-bore

matters like “defin[ing] ‘country elevators,’” Whitman,

531 U.S. at 475, the policy question of how to

dismantle a domestic industry is not that. That

fundamental policy choice is no mere detail or fill-inthe-blank factfinding exercise. Cf. Gundy, 588 U.S. at

157–59 (Gorsuch, J., dissenting). Instead, “[t]hat is a

‘quintessential legislative’ choice and must be made

by the elected representatives of the people, not by

nonelected officials in the Executive Branch.” Am.

Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 547

(1981) (Rehnquist, J., dissenting).

At least in theory, “the intelligible principle test is

not toothless.” Consumers’ Rsch., 606 U.S. at 703

(Kavanaugh, J., concurring). At least it is not

supposed to be. “If the intelligible principle standard

means anything, it must mean that a total absence of

guidance is impermissible under the Constitution.”

Jarkesy v. SEC, 34 F.4th 446, 462 (5th Cir. 2022), aff’d

on other grounds, 603 U.S. 109 (2024). Such is the case

here. And any suggestion that Congress’s decision to

provide detailed instructions in other provisions of the

AIM Act regarding other aspects of the cap-and-trade

phasedown somehow cures Congress’s failure to

provide any instructions as to how EPA decides who

receives the allowances and in what quantity should

be rejected. That Congress provided adequate

guidance on some policy choices in a statutory scheme

does not allow it to abdicate its duty to make all

legislative policy choices.

13

V.

The Blue-Pencil Treatment Compounds

the Legislative Delegation Disease.

It is also no answer for Article III courts to revise

Congress’s legislative handiwork to comply with

constitutional requirements and thereby make policy

choices that Congress should have made. This

transcends the judicial role. Worse, “by repeatedly

doing what it thinks the political branches ought to

do” over time the judiciary “encourages [Congress’s]

lassitude and saps the vitality of government by the

people.” Hamdi v. Rumsfeld, 542 U.S. 507, 577 (2004).

That is exactly what happened here.6 See Pet. 21–26;

App. 16–18. This, too, should not stand.

Simply put, under our system of separated

powers, “courts cannot take a blue pencil to

statutes[.]” Murphy v. NCAA, 584 U.S. 453, 489 (2018)

(Thomas, J., concurring). This is because “federal

courts do not sit as councils of revision, empowered to

rewrite legislation in accord with their own

conceptions of prudent public policy.” United States v.

Rutherford, 442 U.S. 544, 555 (1979). “It is not for [a

court] to rewrite the statute so that it covers only what

6 The core problem is that § 7675(e)(3) is “so vacuous that any

attempt to implement this law would amount to creation of a new

law. If a court tried to give the statute effect in an adjudication,

it would not be engaging in ‘interpretation’ and therefore would

not be exercising the judicial power.” Gary Lawson, Delegation

and Original Meaning, 88 Va. L. Rev. 327, 340 (2002). Put

another way, how EPA must allocate allowances is a “problem

[that] cannot be resolved as a matter of statutory interpretation”

but rather is a bare “policy choice.” United States v. Arthrex, Inc.,

594 U.S. 1, 32 (2021) (Gorsuch, J., concurring in part, dissenting

in part). And that choice is not for an Article III court to make.

14

[it] think[s] is necessary to achieve what [it] think[s]

Congress really intended.” Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 591 U.S.

657, 678 (2020).

“[T]he power of judicial review does not allow

courts to revise statutes,” Seila Law, 591 U.S. at 253

(Thomas, J., concurring in part, dissenting in part),

including “‘to conform it to constitutional

requirements,’” Reno v. ACLU, 521 U.S. 844, 884–85

(1997) (citation omitted). “Constitutional avoidance is

not a license to rewrite Congress’s work to say

whatever the Constitution needs it to say in a given

situation.” Seila Law, 591 U.S. at 230; see Jennings v.

Rodriguez, 583 U.S. 281, 286 (2018). It “does not give

a court the prerogative to ignore the legislative will in

order to avoid constitutional adjudication[.]” CFTC v.

Schor, 478 U.S. 833, 841 (1986). That is because “the

prescription of the standard that Congress had

omitted” is “an exercise of the forbidden legislative

authority.” Whitman, 531 U.S. at 473.

The decision below ignored these bedrock limits on

Article III judicial power, instead “seiz[ing] the

drafting pen,” Consumers’ Rsch., 606 U.S. at 730

(Gorsuch, J., dissenting), and “conjur[ing] standards

and limits from thin air to construct a supposed

intelligible principle” to sustain the delegation. Mich.

Gambling Opposition v. Kempthorne, 525 F.3d 23, 34

(D.C. Cir. 2008) (Brown, J., dissenting).7 The panel’s

Here, the panel superimposed the historical-market-share

approach adopted by Title VI of the Clean Air Act to give

7

15

“willingness to imagine bounds on delegated authority

goes so far as to render” Article I’s bar against

Congress transferring its lawmaking power to the

Executive “nugatory.” Id. (Brown, J., dissenting).

In so doing, the panel arrogated to itself the hard

policy choices the Constitution reserves to Congress

and thereby “usurp[ed] legislative power, rewr[o]te

the statute, and dictate[d] its own terms for

Congress’s

surrender”

of

its

constitutional

responsibility to make policy choices. Consumers’

Rsch., 606 U.S. at 745 (Gorsuch, J., dissenting). That

was error. And it was far from constitutionally

harmless. Cf. United States v. L. Cohen Grocery Co.,

255 U.S. 81, 92–93 (1921) (striking down vague

criminal law in part because it transferred legislative

power to judges and juries).

VI.

This Court Should Restore Equilibrium

Among the Branches.

This Court should not turn a blind eye to these

serious constitutional problems. “The modern

administrative state illustrates what happens when

we ignore the Constitution: Congress passes problems

to the executive branch and then engages in fingerpointing for any problems that might result. The

bureaucracy triumphs—while democracy suffers.”

Rettig, 993 F.3d at 409 (Ho, J., dissenting from denial

substance to the AIM Act’s HFC-allowance scheme even though

Congress declined to do so, yet “expressly incorporated” other

portions of Title VI into the AIM Act. See App. 16–17. On top of

this, the panel transplanted Title VI’s “implementing

regulations” into the AIM Act statute. See App. 19.

16

of rehearing en banc) (cleaned up). It is past time for

this Court to protect our system of representative selfgovernment by enforcing the Constitution’s structural

guardrails and accountability checkpoints.

A. Delegation Run Riot Has Had Awful

Effects on Our Constitutional Republic.

At a broader jurisprudential level, the stakes could

not be higher and involve “basic questions about selfgovernment, equality, fair notice, federalism, and the

separation of powers.”8 West Virginia v. EPA, 597 U.S.

697, 742 (2022) (Gorsuch, J., concurring).

To begin, unconstitutional “[d]elegations have

weakened accountable government in both political

branches, allowing agencies to initiate policy and

congressmen to serve as shadow administrators.”

Neomi Rao, Administrative Collusion: How

Delegation Diminishes the Collective Congress, 90

N.Y. U. L. Rev. 1463, 1508 (2015). This “drives a

wedge between the personal interests of legislators

and the institutional interests of Congress,

8 The baseline Article I sets is that agencies have no authority to

act unless and until Congress confers power on them, see FEC v.

Ted Cruz for Senate, 596 U.S. 289, 301 (2022), deliberately

making it difficult to alter this liberty-tilted baseline, see Louis

J. Capozzi III, The Past and Future of the Major Questions

Doctrine, 84 Ohio St. L.J. 191, 235 (2023). By contrast, legislative

delegations have “the effect of inverting the decision-making

process[.]” Aaron Gordon, Nondelegation, 12 N.Y.U. J.L. &

Liberty 718, 802 (2019). This “reverses the burden that the

Constitution places on those who want to expand the powers of

government[.]” David Schoenbrod, Delegation and Democracy: A

Reply to My Critics, 20 Cardozo L. Rev. 731, 739 (1999).

17

undermining the collective legislative process

established to promote the public good.” Id. at 1477.

More broadly, “[b]y shifting responsibility to a less

accountable branch, Congress protects itself from

political censure—and deprives the people of the say

the framers intended them to have.” Tiger Lily, LLC

v. HUD, 5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J.,

concurring).

On top of this, delegations of legislative power to

putative agency experts undermine rational

decisionmaking—the supposed justification for these

delegations—as these administrators often labor

under confirmation, specialization, and size biases.

See Hamburger, 91 Geo. Wash. L. Rev. at 1187–92.

The rules they promulgate cater to “the concerns of

small cadres of elites. And as those cadres turn over

from administration to administration, the rules

revolve, too, inflicting whiplash on those who must

live under them.” Consumers’ Rsch., 606 U.S. at 745

(Gorsuch, J., dissenting).

Further still, “the transfer of legislative power to

agencies dilutes voting rights.” Hamburger, 91 Geo.

Wash. L. Rev. at 1181. Such power-transfers are also

slanted against disfavored groups. See id. at 1183–87.

In short, “[d]elegation is never just about delegation.

It

also

is

about

rendering

legislation

unrepresentative” and “diluting the value of equal

suffrage[.]” Id. at 1187.

Even

worse,

unconstitutional

delegations

undermine

political

stability,

leading

to

“administratively induced irresponsibility, alienation,

and political conflict.” Id. at 1192. This state of affairs

“tends to infantilize the Constitution’s elements of

18

government,” “leaving Americans with ever less

confidence in government.” Id. at 1193. It “deprives

Americans of their sense of connection to

government,”

leaving

“growing

numbers

of

Americans, left and right, feel[ing] politically

alienated.” Id. at 1194.

Finally, delegation of legislative power to

administrative bodies contributes to political

polarization. See John O. McGinnis & Michael B.

Rappaport, Presidential Polarization, 83 Ohio St. L.J.

5, 7 (2022) (“Delegation by Congress probably has the

most pervasive polarizing effects.”). “The breadth of

centralized legislative power” housed within the

Executive branch today “displaces much state politics.

It also reaches deep into private institutions and life.”

Hamburger, 91 Geo. Wash. L. Rev. at 1195. This “not

only nationalizes American politics but also politicizes

American life.” Id.

B. This

Court

Should

Jettison

“Intelligible Principle” Remark.

the

This Court should confront the root cause of these

serious constitutional problems: “the modern,

enfeebled form of the intelligible principle test[.]”

Consumers’ Rsch., 606 U.S. at 746 (Gorsuch, J.,

dissenting). “[T]he standard this Court currently

applies to determine whether Congress has

impermissibly delegated legislative power largely

abdicates [this Court’s] duty to enforce that

prohibition[.]” Allstates Refractory Contractors, LLC

v. Su, 144 S. Ct. 2490, 2490 (2024) (Thomas, J.,

dissenting from denial of certiorari) (cleaned up). For

good reason “at least five Justices have already

expressed an interest in reconsidering” it. Id. at 2491.

19

This Court should now take up that constitutionally

necessary task.

The current “intelligible principle” test is

“notoriously lax,” Amy Coney Barrett, Suspension and

Delegation, 99 Cornell L. Rev. 251, 318 (2014), “has

historically not packed much punch,” Consumers’

Rsch., 606 U.S. at 705 (Kavanaugh, J., concurring),

and indeed “has become a punchline,” Consumers’

Rsch. v. FCC, 88 F.4th 917, 929 (11th Cir. 2023)

(Newsom, J., concurring). “[T]he nondelegation

doctrine has been more honored in the breach than in

the observance,” Rettig, 993 at 410 (Ho, J., dissenting

from denial of rehearing en banc), and “over the years,

the guardrails have crumbled,” Tiger Lily, 5 F.4th at

674 (Thapar, J., concurring). Today, it “serves as little

more than an open gate for the delegation of

legislative power—even if the sign above the gate

declares the opposite.”9 Hamburger, 91 Geo. Wash. L.

Rev. at 1091. It is past time to close and padlock it.

The “mutated version of the ‘intelligible principle’

remark” in J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928), that forms the basis of the

modern “intelligible principle” test “has no basis in the

original meaning of the Constitution, in history, or

9 INS v. Chadha, 462 U.S. 919, exacerbated the problems flowing

from legislative delegations. As Justice White warned, the

legislative veto’s “importance to Congress can hardly be

overstated,” describing it as “a central means by which Congress

secures the accountability of executive and independent

agencies.” Id. at 967–68 (dissenting). By removing this check

without invalidating the underlying delegations, this Court

broke the legislative bargain and dramatically expanded

Executive power. Cf. id. at 1013–16 (Rehnquist, J., dissenting).

20

even in the decision from which it was plucked.”

Gundy, 588 U.S. at 164 (Gorsuch, J., dissenting); see

Whitman, 531 U.S. at 487 (Thomas, J., concurring);

Consumers’ Rsch., 88 F.4th at 928 (Newsom, J.,

concurring in judgment); id. at 938 (Lagoa, J.,

concurring); Hamburger, 91 Geo. Wash. L. Rev. at

1095 (“[T]he current nondelegation doctrine has no

originalist foundation.”); see also Tiger Lily, 5 F.4th at

674 (Thapar, J., concurring); Allstates, 79 F.4th at 788

n.17 (Nalbandian, J., dissenting). And “the phrase

‘intelligible principle’ has taken on an entirely

different meaning than it once held.”10 Consumers’

Rsch., 606 U.S. at 737 n.15 (Gorsuch, J., dissenting).

This Court should clearly announce the end of this

failed experiment. Cf. Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 411–12 (2024). After all,

“[a]lthough this Court since 1928 has treated the

‘intelligible principle’ requirement as the only

constitutional limit on congressional grants of power

to administrative agencies, the Constitution does not

speak of ‘intelligible principles.’ Rather, it speaks in

much simpler terms: ‘All legislative Powers herein

granted shall be vested in a Congress.’” Whitman, 531

U.S. at 487 (Thomas, J., concurring) (quoting U.S.

Const. art. I, § 1). While the “doctrine long seemed

acceptable while the shift of legislative and judicial

powers to the executive was moderated by political

10 It appears the origin story of the modern “intelligible principle”

test is similar to that of the now-repudiated Chevron doctrine:

stray dicta somehow morphs over time into black-letter law.

Compare Gundy, 588 U.S. at 162–65 (Gorsuch, J., dissenting),

with Thomas Merrill, The Story of Chevron: The Making of an

Accidental Landmark, 66 Admin. L. Rev. 253, 275–78 (2014).

21

restraint,” “such restraint has been thrown to the

winds[.]” Hamburger, 91 Geo. Wash. L. Rev. at 1093.

C. Line-Drawing Questions Cannot Justify

Ignoring the Constitution’s Demands.

Nor should line-drawing challenges stand in the

way of enforcing the Constitution’s bar against

subdelegation of legislative power. “Strictly speaking,

there is no acceptable delegation of legislative power.”

Mistretta v. United States, 488 U.S. 361, 419–20

(1989) (Scalia, J., dissenting). This raises the question

what is “legislative power” that Congress may not

delegate.11

To be sure, “[t]he line has not been exactly drawn”

between “important subjects, which must be entirely

regulated by the legislature itself” and matters of “less

interest” that Congress can delegate to others “to fill

up the details.” Wayman, 23 U.S. (10 Wheat.) at 43;

see West Virginia, 597 U.S. at 737 (Gorsuch, J.,

concurring) (“Doubtless, what qualifies as an

important subject and what constitutes a detail may

be debated.”). And “the hard question is how to specify

clearly—at least, as clearly as possible—what power

the Congress can and cannot assign to others.” Ronald

A. Cass, Fixing Deference: Delegation, Discretion, and

Deference under Separated Powers, 17 NYU J.L. &

Liberty 1, 36 (2023). Indeed, “[i]t may never be

possible perfectly to distinguish between legislative

11 “When it came to the legislative power, the framers understood

it to mean the power to adopt generally applicable rules of

conduct governing future actions by private persons[.]” Gundy,

588 U.S. at 153 (Gorsuch, J., dissenting).

22

and executive power[.]” Ass’n of Am. R.R., 575 U.S. at

86 (Thomas, J., concurring).

“But the inherent difficulty of line-drawing is no

excuse for not enforcing the Constitution.” Id. at 61

(Alito, J., concurring); see id. at 86 (Thomas, J.,

concurring). Cf. Federalist No. 78 (Hamilton) (Courts’

“duty it must be to declare all acts contrary to the

manifest tenor of the Constitution void.”). And “the

difficulty of the inquiry doesn’t mean it isn’t worth the

effort.” Nichols, 784 F.3d at 671 (Gorsuch, J.,

dissenting from denial of rehearing en banc). No

matter the difficulty of the task, the Judiciary is

dutybound to search for the line and could do so on a

case-by-case basis. And just as the Constitution bars

Congress from punting its legislative responsibilities

to other entities, this Court should not punt on its

“duty” “to say what the law is.” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803).

D. There

Are

Judicially

Manageable

Standards For Enforcing Nondelegation.

More than sufficient ink has been spilled to allow

this Court to begin to articulate judicially manageable

standards over time. See generally West Virginia, 597

U.S. at 750 n.11 (Gorsuch, J., concurring) (collecting

scholarship). And “[d]evelopments in the modern

administrative state suggest the time has come to

articulate judicially manageable standards for

identifying delegations of legislative power.” Rao, 90

N.Y. U. L. Rev. at 1508.

“[H]istorical practice and [this Court’s] cases

suggest other guides, beyond the intelligible principle

test, for assessing when Congress has impermissibly

23

ceded legislative power[.]” Consumers’ Rsch., 606 U.S.

at 746 (Gorsuch, J., dissenting); see Gundy, 588 U.S.

at 157–59 (Gorsuch, J., dissenting) (surveying other

guides). For that matter, there may well be “multiple

nonexclusive” nondelegation principles. Paul Larkin,

Revitalizing the Nondelegation Doctrine, 23 Federalist

Soc’y Rev. 238, 263 (2022). And as in other areas of

constitutional law, judgment and nuance may be

required over a series of cases. But it is well worth it.

E. Enforcing Article I’s Vesting Clause Will

Have Salutary Effects.

The sky will not fall if this Court enforces Article

I’s demands. See Gundy, 588 U.S. at 172–73 (Gorsuch,

J., dissenting). Common strawman critiques

advanced by proponents of the administrative state—

“Congress is incapable of acting quickly in response to

emergencies” and “modern society is too complex to be

run by legislators”—are constitutionally irrelevant

and lack merit. See Tiger Lily, 5 F.4th at 674–75

(Thapar, J., concurring); see also Free Enter. Fund v.

PCAOB, 561 U.S. 477, 499 (2010) (“One can have a

government that functions without being ruled by

functionaries, and a government that benefits from

expertise without being ruled by experts.”).

Congress has shown that it is perfectly capable of

making the policy choices associated with allowances

for analogous phasedown regimes by enacting

legislation, as the Constitution requires it to do. See,

e.g., 42 U.S.C. § 7671c(a); id. § 7651c(e); id. § 7651d.

And Congress is free to fix the AIM Act’s

constitutional problems, if it wishes to do so. Cf.

Oklahoma v. United States, 62 F.4th 221, 225 (6th Cir.

2023). Nor would invalidating the AIM Act be

24

disruptive, as it was recently enacted and has not

engendered longstanding reliance interests.

On the other side of the ledger, the benefits of

putting Congress back in the driver’s seat of setting

public policy—where the Constitution puts it—are

immense. And “[t]he educational effect on Congress”

of invalidating the AIM Act “might well be

substantial.” Scalia, supra, 28.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

April 1, 2026