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 THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Thomas A. Berry

Counsel of Record

Brent Skorup

Alexander M. Xenos

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

April 13, 2026

i

QUESTION PRESENTED

Whether Congress violated the Vesting Clause of

Article I by giving an executive agency unbounded

discretion to choose which private parties are entitled

to participate in a multibillion-dollar market.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 2

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

I.

THE NONDELEGATION DOCTRINE

PRESERVES THE

CONSTITUTIONAL SEPARATION

OF POWERS. .................................................. 5

II. THE COURT SHOULD APPLY A

ROBUST FORM OF THE

INTELLIGIBLE PRINCIPLE TEST

TO PROTECT THE SEPARATION

OF POWERS. .................................................. 8

III. THE AIM ACT IMPERMISSIBLY

DELEGATES LEGISLATIVE

AUTHORITY. ................................................ 12

IV. PERMITTING THIS STATUTE TO

STAND WOULD LICENSE THE

EXECUTIVE TO LEGISLATE,

THREATENING THE RULE OF

LAW. .............................................................. 16

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

States, 295 U.S. 495 (1935) ...................................... 8

Arlington v. FCC, 569 U.S. 290 (2013) ..................... 11

Bowles v. Willingham, 321 U.S. 503 (1944) .......... 3, 10

Bowsher v. Synar, 478 U.S. 714 (1986) ....................... 6

Buckley v. Valeo, 424 U.S. 1 (1976) ............................. 6

Buttfield v. Stranahan, 192 U.S. 470 (1904) ............ 10

Clinton v. City of New York, 524 U.S. 417

(1998) ........................................................................ 6

District of Columbia v. Heller, 554 U.S. 570

(2008) ........................................................................ 9

DOT v. Ass’n of Am. R.R., 575 U.S. 43 (2015) .......... 11

Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) .......... 15

FCC v. Consumers’ Research, 606 U.S. 656

(2025) .................................................................. 8, 13

Freytag v. Commissioner, 501 U.S. 868 (1991) ........... 6

Gundy v. United States, 588 U.S. 128 (2019) ..... 11, 12

Henson v. Santander Consumer USA Inc., 582

U.S. 79 (2017) ......................................................... 15

Industrial Union Dep’t v. American Petroleum

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

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

276 U.S. 394 (1928) .................................................. 5

Jama v. ICE, 543 U.S. 335 (2005) ............................. 15

iv

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

(1920) ........................................................................ 9

Korematsu v. United States, 323 U.S. 214

(1944) .................................................................. 3, 10

Mistretta v. United States, 488 U.S. 361

(1989) ................................................................ 13, 16

Musser v. Utah, 333 U.S. 95 (1948)............................. 9

Myers v. United States, 272 U.S. 52 (1926) ................ 6

N. Pipeline Constr. Co. v. Marathon Pipe Line

Co., 458 U.S. 50 (1982) ............................................. 6

National Broadcasting Co. v. United States,

319 U.S. 190 (1943) ............................................ 3, 10

Panama Refining Co. v. Ryan, 293 U.S. 388

(1935) .............................................................. 7, 8, 16

Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S.

212 (2020) ............................................................... 15

Sessions v. Dimaya, 584 U.S. 148 (2018) .................. 18

Texas v. Johnson, 491 U.S. 397 (1989) ....................... 9

Union Bridge Co. v. United States, 204 U.S.

364 (1907) ............................................................... 10

United States v. L. Cohen Grocery Co., 255

U.S. 81 (1921) ........................................................... 9

Washington v. W.C. Dawson & Co., 264 U.S.

219 (1924) ................................................................. 9

Whitman v. Am. Trucking Ass’ns, 531 U.S.

457 (2001) ........................................................... 5, 11

Statutes

42 U.S.C. § 7675(b)(1) .................................................. 3

v

42 U.S.C. § 7675(b)(2) .................................................. 4

42 U.S.C. § 7675(e)(2)(A)–(D) ...................................... 4

42 U.S.C. § 7675(e)(2)(C) ............................................. 3

42 U.S.C. § 7675(e)(3) .......................................... 13, 14

42 U.S.C. § 7675(e)(3)(A) ........................................... 12

42 U.S.C. § 7675(e)(4)(B)(i) .................................... 4, 14

42 U.S.C. § 7675(e)(4)(B)(iv) .................................. 4, 14

42 U.S.C. § 7675(k)(1)(C) ........................................... 15

5 U.S.C. § 706(2)(A) ................................................... 14

Other Authorities

BARON DE MONTESQUIEU, THE SPIRIT OF LAWS

(Franz Neumman ed., Thomas Nugent

trans., Hafner Publ’g Co. 1949) ............................... 7

Considering the Role of Judges Under the

Constitution of the United States, U.S.

SENATE COMM. ON THE JUDICIARY (Oct. 5,

2011) ......................................................................... 2

EPA, Phasedown of Hydrofluorocarbons:

Response to Comments (June 2023)................... 4, 14

Jason Iuliano & Keith E. Whittington, The

Nondelegation Doctrine: Alive and Well, 93

NOTRE DAME L. REV. 619 (2017) .............................. 7

Neomi Rao, Administrative Collusion: How

Delegation Diminishes the Collective

Congress, 90 N.Y.U. L. REV. 1463 (2015) ................ 7

THE FEDERALIST NO. 47 (James Madison) .................. 7

THE FEDERALIST NO. 48 (James Madison) .................. 6

THE FEDERALIST NO. 51 (James Madison) ............ 6, 16

vi

THE FEDERALIST NO. 78 (Alexander Hamilton) .......... 9

Todd Gaziano & Ethan Blevins, The

Nondelegation Test Hiding in Plain Sight:

The Void-for-Vagueness Standard Gets the

Job Done, in THE ADMINISTRATIVE STATE

BEFORE THE SUPREME COURT: PERSPECTIVES

ON THE NONDELEGATION DOCTRINE (Peter J.

Wallison & John Yoo eds., 2022) ........................... 12

Regulations

86 Fed. Reg. 27,166 ...................................................... 4

86 Fed. Reg. 27,177 .................................................... 17

86 Fed. Reg. 27,178 ...................................................... 4

86 Fed. Reg. 27,203 .................................................... 17

Constitutional Provisions

U.S. CONST. art. I, § 1 .............................................. 2, 5

U.S. CONST. art. II, § 1, cl. 1 ........................................ 2

U.S. CONST. art. III, § 1 ............................................... 2

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Toward that end,

Cato’s Robert A. Levy Center for Constitutional

Studies publishes books and studies about legal issues,

conducts conferences, produces the annual Cato

Supreme Court Review, and files amicus briefs in

constitutional law cases.

This case interests Cato because the nondelegation

doctrine is central to the Constitution’s separation of

powers. The Framers understood that separating the

legislative and executive powers was necessary to

preserve individual liberty, and the nondelegation

doctrine is vital to achieving that end. The AIM Act’s

unconstrained delegation of market-allocation power

to the EPA threatens that indispensable constitutional

principle.

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission. All parties were timely notified of

the filing of this brief.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Justice Scalia once remarked that “[t]he real key to

the distinctiveness of America is the structure of our

government.” Considering the Role of Judges Under

the Constitution of the United States, U.S. SENATE

COMM. ON THE JUDICIARY, at 00:40:21 (Oct. 5, 2011).2

That structure is maintained only if courts police and

demarcate the boundaries separating legislative from

executive power.3 Implicit in this design is the

principle that the political branches may not reallocate

authority among themselves for the sake of

convenience. Accordingly, this Court has long

recognized that Congress may not freely delegate the

legislative powers vested in it by the Constitution.

To enforce this separation of powers, this Court has

articulated a “nondelegation doctrine,” which holds

that Congress must provide executive agencies with

an “intelligible principle” to govern the exercise of

delegated authority. Unfortunately, during the

exigencies of the Second World War, the doctrine

entered a period of dormancy, as wartime decisions

2 Available at https://tinyurl.com/2k3u2m3v.

The Constitution vests the legislative, executive, and

judicial powers in the legislative, executive, and judicial

branches, respectively. U.S. CONST. art. I, § 1; art. II, § 1, cl. 1;

art. III, § 1.

3

3

deferential to the political branches4 truncated its

development. Congress has since proceeded to avoid

difficult policy choices by granting broad authority to

agencies, undermining the separation of powers and

diminishing individual liberty.

The statute here is the starkest example yet of this

trend, in that it delegates industry-destroying power

to an agency and fails to meet even the lenient

intelligible principle standard. In fact, the statute

provides no guidelines or restraints at all.

Petitioner Choice Refrigerants is a business that

produces refrigerant blends, including a patented

hydrofluorocarbon (“HFC”) one, for a multibilliondollar domestic market. Pet. Br. 5. In 2020, the

American Innovation and Manufacturing Act (“AIM

Act”) was enacted, mandating an 85 percent

phasedown of HFC production and consumption by

2036 through a cap-and-trade program administered

by the Environmental Protection Agency (“EPA”). Pet.

Br. 1, 6; 42 U.S.C. § 7675(b)(1), (e)(2)(C). To implement

the phasedown, the Act requires the EPA to allocate

production-and-consumption “allowances”—no person

4 See National Broadcasting Co. v. United States, 319 U.S.

190, 215–16 (1943) (sustaining a broad delegation to the Federal

Communications Commission); Korematsu v. United States, 323

U.S. 214, 217–18 (1944) (sustaining a broad delegation to the

President and his military advisors); Bowles v. Willingham, 321

U.S. 503, 517 (1944) (sustaining a broad delegation to an

economic administrator).

4

may lawfully produce or consume HFCs without these

permission slips. Id. § 7675(b)(2), (e)(2)(A)–(D).

Yet Congress provided no guidance on how the EPA

should distribute some 98 percent of those allocations.5

The EPA acknowledged that it possessed

“considerable” and “significant discretion,”6 and

conceded that no statutory principle constrained its

choices beyond ordinary Administrative Procedure Act

(“APA”) standards. See EPA, Phasedown of

Hydrofluorocarbons: Response to Comments 91–92

(June 2023).7

Choice challenged this arrangement as an

unconstitutional delegation of legislative power. The

D.C. Circuit rejected that challenge, but only by

reading into the AIM Act an “intelligible principle”

that Congress never enacted: the court divined from

snippets of legislative history an implicit congressional

intent to incorporate a market-share allocation

methodology drawn from Title VI of the Clean Air

Act—a separate statutory provision that the AIM Act

5 The statute’s only substantive allocation instruction covers

a narrow class of “essential uses” that EPA calculated as

constituting a mere 2 percent of total allowances. Pet. Br. 7–8; 42

U.S.C. § 7675(e)(4)(B)(i), (iv).

6 Pet. Br. 7; 86 Fed. Reg. 27,166, 27,178.

7 Available at https://perma.cc/25HG-P67E.

5

nowhere cross-references or incorporates. See App. 15–

21.

This case warrants review because it presents a

separation-of-powers violation. If the decision below

stands, the executive will be able to legislate via

administrative fiat by rewriting the content of vague

statutes. Instead of going through the constitutional

process of legislative bicameralism and presidential

presentment, the meaning of these laws will whipsaw

based on who controls the agency. Regulated parties

like Choice will be left to deal with the consequences

of an Etch A Sketch legal landscape.

This Court should grant the petition for certiorari

and overrule the decision below.

ARGUMENT

I.

THE

NONDELEGATION

DOCTRINE

PRESERVES

THE

CONSTITUTIONAL

SEPARATION OF POWERS.

The Constitution vests “[a]ll legislative Powers

herein granted . . . in a Congress of the United States.”

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). So while Congress may “vest

discretion in” agencies “to make public regulations

interpreting a statute,” that discretion must be “within

defined limits” to preserve the separation of powers.

J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 406 (1928).

6

The separation of powers “was not simply an

abstract generalization in the minds of the Framers: it

was woven into the document that they drafted in

Philadelphia in the summer of 1787.” Buckley v. Valeo,

424 U.S. 1, 124 (1976). They viewed the principle as

“the central guarantee of a just government,”

Freytag v. Commissioner, 501 U.S. 868, 870 (1991),

and understood that the “separate and distinct

exercise of the different powers of government . . . [is]

essential to the preservation of liberty.” THE

FEDERALIST NO. 51 (James Madison).8 As Justice

Kennedy observed, “[l]iberty is always at stake when

one or more of the branches seek to transgress the

separation of powers.” Clinton v. City of New York, 524

U.S. 417, 450 (1998) (Kennedy, J., concurring).

In particular, the Founders feared the commingling

of the legislative and executive powers and wanted to

prevent the abuses they had experienced as British

subjects. James Madison, citing Montesquieu,

concluded, “There can be no liberty where the

legislative and executive powers are united in the

8 See also THE FEDERALIST NO. 48 (James Madison) (stating

that the separation of powers is “essential to a free government.”);

Bowsher v. Synar, 478 U.S. 714, 730 (1986); Myers v. United

States, 272 U.S. 52, 116 (1926); N. Pipeline Constr. Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (“To ensure

against such tyranny, the Framers provided that the Federal

Government would consist of three distinct Branches, each to

exercise one of the governmental powers recognized by the

Framers as inherently distinct.”).

7

same person, or body of magistrates . . . .” THE

FEDERALIST NO. 47 (James Madison); see BARON DE

MONTESQUIEU, THE SPIRIT OF LAWS 151 (Franz

Neumman ed., Thomas Nugent trans., Hafner Publ’g

Co. 1949).

The dormancy of the nondelegation doctrine—

beginning with the wartime Court—has invited

Congress to delegate sweeping authority to the

executive, contrary to the Framers’ design. These

broad delegations undermine the separation of

powers, “not only by expanding the power of executive

agencies, but also by unraveling the institutional

interests of Congress.” Neomi Rao, Administrative

Collusion: How Delegation Diminishes the Collective

Congress, 90 N.Y.U. L. REV. 1463, 1465 (2015). The

result is a legislature whose members are less

accountable to both their constituents and each other.

Delegation discharges them from the duty to come

together as a deliberative body to legislate on even the

most pressing matters. Id. at 1465–66. When Congress

delegates its power, it no longer needs to bear the

responsibility for the policies it enables. Instead, it

retains plausible deniability as the executive confronts

the hard questions of governing.

Despite claims that the nondelegation doctrine is

dead, this Court has never abandoned it. See, e.g.,

Jason Iuliano & Keith E. Whittington, The

Nondelegation Doctrine: Alive and Well, 93 NOTRE

DAME L. REV. 619, 624–25 (2017). In Panama Refining

Co. v. Ryan, 293 U.S. 388 (1935), this Court

8

invalidated a section of the National Industrial

Recovery Act (“NIRA”) authorizing the President to

prohibit the interstate transportation of petroleum

produced in excess of state‑allowed quotas. The Court

reasoned that Congress “ha[d] declared no policy,

ha[d] established no standard, ha[d] laid down no

rule.” Id. at 430. The statute “left the matter to the

President . . . to be dealt with as he pleased.” Id. at

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

States, 295 U.S. 495 (1935), the Court held that

another section of the NIRA violated the

nondelegation doctrine. The statute authorized the

President to approve “codes of fair competition” in

certain industries “for the protection of consumers,

competitors, employees, and others, and in

furtherance of the public interest,” and to “provide

such exceptions to and exemptions from the provisions

of such code as the President in his discretion deems

necessary.” Id. at 534. The Court again observed that

Congress’s grant of authority was open-ended,

“set[ting] up no standards, aside from the general aims

of rehabilitation, correction and expansion described

in section one [of the NIRA].” Id. at 541. Both decisions

remain good law, see FCC v. Consumers’ Research, 606

U.S. 656, 683 (2025), and every Justice currently on

this Court affirmed the validity of the doctrine in some

form just last Term. Id. at 661.

II. THE COURT SHOULD APPLY A ROBUST

FORM OF THE INTELLIGIBLE PRINCIPLE

TEST TO PROTECT THE SEPARATION OF

POWERS.

9

The Framers envisioned the federal courts as “the

bulwarks of a limited Constitution against legislative

encroachments” and “an intermediate body between

the people and the legislature.” THE FEDERALIST NO.

78 (Alexander Hamilton). Consistent with that role,

this Court has a proud tradition of judicial

engagement: when government conduct has

implicated fundamental individual rights, this Court

has vigorously scrutinized those impingements to

ensure that the political branches comport with

constitutional commands.9

When it comes to delegation, however, courts have

taken a too-lax approach for the better part of a

century. See Industrial Union Dep’t v. American

Petroleum Inst., 448 U.S. 607, 674–75 (1980)

(Rehnquist, J., concurring) (“[T]he principle that

Congress could not simply transfer its legislative

authority to the Executive fell under a cloud”).10 Less

9 See, e.g., Texas v. Johnson, 491 U.S. 397, 412 (1989) (First

Amendment); Musser v. Utah, 333 U.S. 95, 97 (1948) (Fifth

Amendment); District of Columbia v. Heller, 554 U.S. 570, 635

(2008) (Second Amendment).

In the early twentieth century, several attempts to

relinquish legislative powers were struck down. See Washington

v. W.C. Dawson & Co., 264 U.S. 219, 227 (1924) (prohibiting

Congress from delegating the “power to alter the maritime law”);

United States v. L. Cohen Grocery Co., 255 U.S. 81, 87–88 (1921)

(holding that the Lever Act, which made it unlawful for any

person to charge unreasonable prices for “necessaries,” amounted

to a delegation by Congress of legislative power to courts);

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920)

10

10

than a decade after Panama Refining and Schechter

Poultry, the wartime Court sustained—against

nondelegation challenges—a system of concentration

camps for Japanese Americans,11 a regime of content

regulation for broadcast media,12 and nationwide rent

control,13 each resting on open-ended or manipulable

statutory language. That deference calcified into

doctrine: so long as a statute contains a mere

“intelligible principle” to guide executive action, the

(invalidating improper delegation of maritime law to the states).

In other cases, delegations were upheld; but in each of these

instances, this Court made it clear that delegated authority must

be accompanied by adequate congressional guidance. See, e.g.,

Union Bridge Co. v. United States, 204 U.S. 364, 386 (1907)

(“[T]he Secretary of War will only execute the clearly expressed

will of Congress, and will not, in any true sense, exert legislative

or judicial power”); Buttfield v. Stranahan, 192 U.S. 470, 496

(1904) (“[The Tea Act] does not, in any real sense, invest

administrative officials with the power of legislation. Congress

legislated on the subject as far as was reasonably practicable”).

Korematsu, 323 U.S. at 217–18 (sustaining region-wide,

ancestry-based internal deportations against a nondelegation

challenge).

11

12 National Broadcasting Co., 319 U.S. at 215–16 (sustaining

Congress’s delegation to the Federal Communications

Commission to regulate broadcast stations and their program

content in the “public interest, convenience, and necessity”

against a nondelegation challenge).

13 Bowles, 321 U.S. at 517 (sustaining Congress’s delegation

to an administrator to fix rental rates which are “generally fair

and equitable,” but no lower than prevailing rates in April 1940,

against a nondelegation challenge).

11

Court has refused to second-guess Congress

“regarding the permissible degree of policy judgment

that can be left to those executing or applying the law.”

Whitman, 531 U.S. at 474–75 (internal quotation

marks omitted).

This deferential posture has permitted the

Executive Branch to aggrandize itself at Congress’s

expense, usurping Congress’s role as the predominant

policymaking branch. The Court’s hesitation to police

the constitutional boundary has allowed legislative

delegations to metastasize, such that today “the

citizen confronting thousands of pages of regulations—

promulgated by an agency directed by Congress to

regulate, say, ‘in the public interest’—can perhaps be

excused for thinking that it is the agency really doing

the legislating.” DOT v. Ass’n of Am. R.R., 575 U.S. 43,

62 (2015) (Alito, J., concurring) (quoting Arlington v.

FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J.,

dissenting)). This case offers the Court a chance to

begin correcting that imbalance.

The Court should seize it by applying a robust form

of the intelligible principle test. See Gundy v. United

States, 588 U.S. 128, 164, 166 (2019) (Gorsuch, J.,

dissenting) (proposing a three-pronged inquiry based

on “prior teachings”);14 see generally Todd Gaziano &

Justice Gorsuch proposed that three questions must be

asked to “determine whether a statute provides an intelligible

principle”:

14

12

Ethan Blevins, The Nondelegation Test Hiding in

Plain Sight: The Void-for-Vagueness Standard Gets

the Job Done, in THE ADMINISTRATIVE STATE BEFORE

THE

SUPREME COURT: PERSPECTIVES ON THE

NONDELEGATION DOCTRINE 45–70 (Peter J. Wallison &

John Yoo eds., 2022).

III. THE

AIM

ACT

IMPERMISSIBLY

DELEGATES LEGISLATIVE AUTHORITY.

Even under the intelligible principle standard this

Court has long applied, the AIM Act fails. It transfers

to an agency the power to determine which private

parties may participate in an industry—a

quintessentially legislative decision—and it does so

without any textual constraint whatsoever. The

statute simply commands that EPA “issue a final rule

. . . phasing down the production of [HFCs] in the

United States through an allowance allocation and

trading program.” 42 U.S.C. § 7675(e)(3)(A). That is

the entirety of Congress’s guidance on allocation. As

shown below, it is not enough.

Does the statute assign to the executive only the

responsibility to make factual findings? Does it

set forth the facts that the executive must

consider and the criteria against which to

measure them? And most importantly, did

Congress, and not the Executive Branch, make

the policy judgments? Only then can we fairly say

that a statute contains the kind of intelligible

principle the Constitution demands.

Gundy, 588 U.S. at 166 (Gorsuch, J., dissenting).

13

This Court has held that Congress may delegate

regulatory power only if it provides “ascertainable and

meaningful guideposts” for the agency to follow.

Consumers’ Research, 606 U.S. at 681; see also

Mistretta v. United States, 488 U.S. 361, 372 (1989).

Last Term, the Court upheld a broad delegation to the

FCC to set contribution levels for telecommunications

subsidies because the Court found that Congress had

made the relevant policy choices and confined the

agency to implementing them: the statute (under this

Court’s reading) specified the program’s beneficiaries,

set mandatory criteria for subsidized services, and

limited the agency to raising amounts “sufficient” to

fund that bounded program. Consumers’ Research, 606

U.S. at 681–84. The delegation survived because, in

this Court’s estimation, Congress had done its job. Id.

at 681.

Congress did not do its job here. The AIM Act tells

EPA to phase down HFC production “through an

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

§ 7675(e)(3), but the Act says nothing about how to

allocate—which is the central question in any cap-andtrade regime. Aside from narrow carve-outs for certain

“essential uses” and certain specialized products

during the first five years, Congress provided no

direction at all for allocating the overwhelming

majority of allowances.15

The law specifies guidance for roughly 2 percent of

allowances—covering “essential uses” and certain specialized

15

14

The resulting discretion is unbounded in the way

that mattered in Panama Refining and Schechter

Poultry: because the AIM Act provides no allocation

criteria, any methodology the EPA selects will, by

definition, “comply” with the statute. The EPA can

allocate allowances by market share, by auction, by

lottery, by political favor, or by any other method it

devises. So long as the agency follows its procedural

rules, no court could say that any of those approaches

violated the AIM Act’s directive because the Act simply

contains no directive to violate. That is the hallmark

of an unconstitutional delegation—not the exercise of

executive discretion within legislatively prescribed

bounds.

The EPA has effectively conceded the point. It has

acknowledged that it possesses wide discretion to

allocate allowances however it sees fit, so long as its

decisions are “reasonable and reasonably explained.”

EPA, Phasedown of Hydrofluorocarbons: Response to

Comments 91–92. But that is simply the APA’s

baseline requirement for any agency action. If mere

APA compliance satisfies the intelligible-principle

test, the test imposes no limit whatsoever. An

arbitrary and capricious standard16 does not provide

agencies with any intelligible principle to guide the

exercise of the delegated task.

applications, see § 7675(e)(4)(B)(i), (iv), and is silent on the

remaining 98 percent, see § 7675(e)(3).

16 5 U.S.C. § 706(2)(A).

15

The D.C. Circuit attempted to cure this deficiency

by supplying an intelligible principle that the statute

itself does not contain—inferring from legislative

history and perceived structural similarities that

Congress must have intended Title VI’s baseline-year

allocation formula to serve as a “model.” Pet. App. 15–

16. But that is not interpretation; it is revision. The

Act says nothing about allocating by historical market

share, nowhere cross-references Title VI’s formula,

and does not incorporate 42 U.S.C. § 7671d(b)—even

though Congress expressly incorporated other Clean

Air Act provisions elsewhere in the same Act. See 42

U.S.C. § 7675(k)(1)(C). This Court has cautioned

courts against “read[ing] into statutes words that

aren’t there”17 and held that differences in statutory

language “convey differences in meaning.”18 Moreover,

courts must not lightly assume Congress omitted

requirements it intended to impose—especially where

Congress demonstrated it knew how to make such

incorporation express. Jama v. ICE, 543 U.S. 335, 341

(2005). Pet. Br. 23. Legislative history cannot do the

work that the enacted text does not. Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 523 (2018) (“legislative history is

not the law”). The Constitution requires Congress—

not an Article III court reconstructing after the fact a

legislative judgment Congress never made—to cabin

Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212, 215

(2020).

17

18 Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86

(2017).

16

agency discretion. Allowing courts to perform that

function does not solve the separation-of-powers

problem; it compounds it.

***

Congress cannot “unconstitutionally diminish [its

own] authority” any more than it can intrude upon the

province of the courts or the president. Mistretta, 488

U.S. at 395. It is entirely within Congress’s power to

“establish primary standards, devolving upon others

the duty to carry out the declared legislative policy.”

Panama Refining, 293 U.S. at 426. But there is no

primary standard here, nor a secondary or tertiary

one. The statute gives no guidelines, no

considerations, not even factors for a balancing test of

any kind. It simply assigns to the executive sole,

unmoored discretion to answer the statute’s central

question. That is precisely the “gradual concentration

of the several powers in the same department” that the

Framers designed the Constitution to prevent. THE

FEDERALIST NO. 51 (Madison).

IV. PERMITTING THIS STATUTE TO STAND

WOULD LICENSE THE EXECUTIVE TO

LEGISLATE, THREATENING THE RULE OF

LAW.

The nondelegation problem here also poses a ruleof-law problem. The nondelegation doctrine ensures

that the rights and obligations of private citizens are

fixed by legislation enacted through the Constitution’s

demanding procedures of bicameralism and

presentment. The AIM Act’s unconstrained delegation

17

of allocation authority to the EPA threatens that

guarantee.

The Act creates allowances and makes them

indispensable to commercial survival, but it does not

specify the rules governing who receives them. That

omission means the operative law will be written not

by Congress but by whichever administration controls

the EPA at a given moment.

The delegation here presents a case study in how

standardless delegations transform fixed law into

shifting executive policy. The EPA is free to allocate

the overwhelming majority of allowances as it sees fit.

Pet. Br. 11. The breadth of this discretion is apparent

in the record. When proposing its allocation

methodology, the EPA identified a vast and

contradictory range of policy options it was free to

pursue—ranging from allocations based on past use, to

prioritizing “minority- and woman-owned small

businesses” to address “systemic racism.” Pet. Br. 8–9;

86 Fed. Reg. 27,177, 27,203 (May 19, 2021).

Because the statute imposes no constraints on the

agency’s choice among an infinite and widely divergent

set of options, a future administration—with different

priorities, different constituencies, and different policy

preferences—is equally free to reverse course. An

administration that favors incumbent industries could

allocate all general-pool allowances by historical

market share. One that favors competition could

redirect allowances to new entrants. One that pursues

environmental goals could auction allowances and

18

retire the winning bids. One that favors industrial

policy could condition allowances on compliance with

domestic-sourcing

requirements

or

other

programmatic objectives. That is not an agency

implementing a law. It is an agency drafting one.

A company like Choice Refrigerants can invest

millions of dollars in developing products, building

market share, and planning for the future, only to find

that a change in administration—or even a change in

EPA leadership—wipes out its market position

because the agency decided to fill the statutory void

differently.

“Vague

laws

invite

arbitrary

power.”

Sessions v. Dimaya, 584 U.S. 148, 175 (2018) (Gorsuch,

J., concurring). And if this statute survives, vague

statutes may become even better vehicles for executive

abuse. The consequences are profound. The resulting

regime is one in which legal rights and obligations

fluctuate with the vagaries of administrative

preferences. The Constitution does not tolerate that

arrangement.

Where Congress has provided genuine standards

and guidance, regulated parties can predict the

contours of agency action, courts can assess whether

the agency has remained within its delegated

authority, and the public can hold both Congress and

the executive accountable. Where, as here, Congress

19

has provided no principle at all, none of those rule-oflaw functions can be performed.

Congress cannot abdicate the legislative power

vested in it by Article I of the Constitution. The

Republic must be governed by law enacted through the

legislative process, not by decrees imposed through

executive fiat. This statute empowers administrators

to do just that.

CONCLUSION

Separation of powers is not an abstraction or a

mere technicality. It is a vital component of the

Constitution that restrains the government and

protects the rights of the people. For the foregoing

reasons, this Court should grant the Petition and

reverse the decision below.

Respectfully submitted,

Thomas A. Berry

Counsel of Record

Brent Skorup

Alexander M. Xenos

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

April 13, 2026