Amicus Curiae Brief — Whitman v. American Trucking Assns., Inc.

Supreme Court of The United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Petitioners,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For The District of Columbia Circuit

“Sey BRIEF AMICUS CURIAE OF LINCOLN INSTITUTE.

FOUNDATION, PUBLIC ADVOCATE OF THE U.S. oak

«? ae

fe gs 3.

TABLE OF CONTENTS

Page

ED 6 dd ca wecwndddesuudeteces ill

eT MUNG cc ccccccccccoucescevecs l

SUMMARY OF ARGUMENT .............--2-eee00:: 2

ARGUMENT

ED 6 cnn kde 60:8 ene hens eedeenhees 3

I. SECTION 109 OF THE CLEAN AIR ACT

IS NOT INTELLIGIBLY RELATED TO ANY

CONSTITUTIONALLY ENUMERATED POWER

er GD Se see eecuedentacuedeceeusce 7

A. The Onginal CAA Invoked Congress’

Constitutional Power to “Provide

for the General Welfare.” ................. 7

B. The Current CAA Rests Upon a Presumed

Power of Congress to Promote the General

WE She andGxee seeks cekenenene ewes 8

C. Section 109 of the CAA Is Not Intelligibly

Related to Any Constitutional Power of

Congress Concerning the General Welfare. . . 12

D. Section 109 of the CAA Is Not Intelligibly

Related to Either the Commerce Clause

or the Necessary and Proper Clause. ....... 14

Il. SECTION 109 OF THE CLEAN AIR ACT

DOES NOT PROVIDE A GENERAL RULE

TO WHICH THE EPA ADMINISTRATOR

DES GEE 6 cow ecscccssesecesececess 17

A. Congress Must Provide a Rule of Conduct

to Guide the Exercise of Administrative

DE, oun cn ceeds tcdeeei nee sunees 17

B. Section 109 of the Clean Air Act Does

Not Provide a General Rule Controlling

A Se a A 19

il

Page

C. Section 109 Fails to Provide An

Meaningful Standard Limiting EPA

DU, Sanbeccveercncesecsccccoces 21

D. The Constitution Prescribes that Congress

is the Authorized Law Maker, Subject

only to the Veto of the President. .......... 25

Ill. THE CONSTITUTIONAL SEPARATION OF

POWERS DOCTRINE OBLIGES THIS

COURT TO STRIKE DOWN SECTION 109

OF THE CLEAN AIR ACT. ..........---5445. 27

re ee ee ees 30

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

ee i ssebeee , Speen 4,27

EE RN ERR ER eee ae ere 27

ES A a RE ee eR 25

Article I, Section 8, Clause 1 ......................- 12

STATUTES

EE et ee suuatewen 24

EE ene 19, 20

EE re 2, passim

a ee 16

, SS. F | BT)... 7

Pub. L. 88-206, 77 Stat. 392, §§ 1(a)(3), (4) (1963). .... 7,8

Pub. L. 89-271, 992, § 202(a) (1965).................. )

Pub. L. 90-148, 81 Stat. 491 (1967)................... 4

Pub. L. No. 91-604, 84 Stat. 1676 (1970) .............. 4

a ea daanen 10

EE ee es oo ol eee et ekeesneet 13, 19

Teen i an nee 13,19

iS siege a oe eienbenaanns 21

CASES

A.B. Small Co. v. American Sugar Refining Co., 267

EE RR TR RE, Ee 18

American Power & Light Co. v. SEC, 329 U.S. 90

EELS SET en en nn ae 21

American Trucking Ass'n v. United States, 175 F.3d 1034

ene See 19, passim

Bowsher v. Synar, 478 U.S. 714 (1986) .............. 29

Bradley v. The Washington, Alexandria, and Georgetown

Steam Packet Co., 38 U.S. (13 Pet.) 89 (1839)........ 18

Carter v. Carter Coal Co., 298 U.S. 238 (1936) ......... 20

iV

Page

Fahey v. Mallonee, 332 U.S. 245 (1947) .........--.--. 8

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ........ 25

Hampton & Co. v. United States, 276 U.S. 394

a se Oe a ed ld ie ed 5, 17, 18

Heart of Atlanta Motel v. United States, 379 U.S. 241

ED .c) cUGubEcieL chun uber anasadivaGenecdes 16

LN‘S. v. Chadha, 462 U.S. 919 (1983) .........--..-- 27

Industrial Union Dept. v. American Petrol. Inst., 448

RARE Pip P ARE TT SRS Np Pap 6

Kilbourn v. Thompson, 103 U.S. 168 (1881) ....... 28, 29

Lead Industries Ass’n. v. EPA, 647 F.2d 1130 (D.C. Cir.

oa cesiariaeananewebewes 14

Mason v. Haile, 25 U.S. (12 Wheat.) 370 (1827) ....... 18

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

es es ee ae eee 19, 26

Mistretta v. United States, 488 U.S. 361 (1989) ...... 5, 26

National Cable Television Ass’n., Inc., v. .

SE ED 6 cnc cius cdeantecenneseecucaes 5

The Nereide, 13 U.S. (9 Cranch) 388 (1815) ........... 18

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) 5, 18, 25

DD <i dechedenncdedouetarsuctes 5, passim

South Dakota v. Dole, 483 U.S. 203 (1987) ........... 13

Steward Machine Co. v. Davis, 301 U.S. 548 (1937) amen 8

PP Perrrrrriv rr rt 7, passim

United States v. Butler, 297 U.S. 1 (1936) ......... 12, 13

United States v. Morrison, 529 U.S. ___, 120 S.Ct. 1740,

T>R LT. Ty rrr rrr ree ll

United States v. Shreveport Grain & Elevator Co., 287

DS. TIDE . cc cccccccccscescccccsccedecceess 21

v

Page

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

DT (606 .e)p6etid diane aan eeudennuneiaasaate 25

MISCELLANEOUS

Anderson, The Environmental Revolution at Twenty-

Five, 26 RUTGERS L. J. 395 (1995) ............... 4,10

Clean Air Act: Ozone and Particulate Matter Standards:

Hearings Before the Subcomm. on Clean Air,

Wetlands, Private Property, and Nuclear Safety of

the Senate Env't. and Pub. Works Comm., 105th Cong.,

IE RAR ee eon pie eg 13

1 K. DAvis & R. PIERCE, ADMINISTRATIVE LAW 66

ES Se eer ee me 4, 28, 29

Michael Fumento, Science Under Siege .............. 22

Blouses Repost No. 91-1146 ...........ccecccccee 4,10

J. LANDIS, THE ADMINISTRATIVE PROCESS (1938) ...... 28

Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15,623,

EET Sr NN RP HUA Seen 3

W. RODGERS, ENVIRONMENTAL LAW 130 (2d ed. 1994) . 7

Sources of Our Liberties (R. Perry, ed. 1978) .......... 29

1 J. STORY, COMMENTARIES ON THE CONSTITUTION, § 907

EF a RS IR Oe ES a Pca mer ge 12

SUNSTEIN, Is the Clean Air Act Unconstitutional ?, 98

MIcu. L. REV. 303 (1999) ................. 22, 23, 24

L. TRIBE, AMERICAN CONSTITUTIONAL LAW 322 (2d ed.

Re er Fee eee eee 12

1963 U.S. CODE CONG. & ADMIN. News 1263........ 8,12

1965 U.S. CODE CONG. & ADMIN. News 3610 .... 9, 15, 16

1967 U.S. CODE CONG. & ADMIN. NEws 1952 ....... 9,15

1970 U.S. CODE CONG. & ADMIN. NEws 5356. ... 4, passim

No. 99-1257

IN THE

Supreme Court of The United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Petitioners,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For The District of Columbia Circuit

BRIEF AMICUS CURIAE OF LINCOLN INSTITUTE

FOR RESEARCH AND EDUCATION, AMERICAN

SOVEREIGNTY ACTION PROJECT, GUN OWNERS

FOUNDATION, PUBLIC ADVOCATE OF THE U. S.,

AMERICAN POLICY CENTER, 60 PLUS, TRUE

BLUE FREEDOM, AND U.S. BORDER CONTROL

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

The amici curiae,’ Lincoln Institute for Research and

Education, American Sovereignty Action Project (a project of

Citizens United Foundation), Gun Owners Foundation, Public

' Pursuant to Supreme Court Rule 37.6, it is hereby certified that no counsel

for a party authored this brief in whole or in part, and that no person or

entity other than these amici curiae made a monetary contribution to the

preparation or submission of this brief.

2

Advocate of the United States, American Policy Center, 60

PLUS, True Blue Freedom, and U.S. Border Control, are

nonprofit educational organizations sharing acommon interest

in the proper construction of the Constitution and laws of the

United States. All of the amici were established within the past

25 years for public education purposes related to participation

in the public policy process, and are tax-exempt under section

501(c)(3) or section 501(c)(4) of the Internal Revenue Code.

For each of the amici, such purposes include programs to

conduct research, and to inform and educate the public, on

important issues of national concern, including questions

related to the correct interpretation of the United States

Constitution and the laws of the United States. None of these

amici have participated thus far in any aspect of this case before

this Court or in the lower courts. In the past, most of the amici

have conducted research on other issues involving

constitutional interpretation, and have filed amicus curiae

briefs in other federal litigation, including matters before this

Court, involving constitutional issues. ”

SUMMARY OF ARGUMENT

Section 109 of the Clean Air Act (“CAA”) effects an

unconstitutional delegation of congressional power because it

is not intelligibly related to any constitutional grant of power to

Congress. The CAA originally rested upon the legislative

power of Congress to “provide for the general welfare.” The

2 Amici requested and received the written consents of the parties to the

filing of this brief amicus curiae. Such written consents, in the form of

letters from counsel of record for the various parties, have been submitted

for filing to the Clerk of Court.

3

current CAA rests upon a presumptive federal police power to

promote the general welfare. As an exercise of a plenary power

to promote the general welfare, section 109 of the CAA is not

intelligibly related to any constitutional power of Congress in

relation to the general welfare. As a delegation of power to

regulate interstate commerce, or to regulate conditions

substantially related to interstate commerce, section 109 is not

intelligibly related either to the Commerce Clause or the

Necessary and Proper Clause.

Section 109 of the CAA also effects an unconstitutional

delegation of power because it does not provide a general rule

to which the EPA must conform in setting National Ambient

Air Quality Standards (NAAQS). Under the intelligible

principle test, Congress must provide a rule of conduct to guide

the exercise of administrative discretion. Section 109 does not

provide such a general'rule. Section 109 also fails to provide

any meaningful standard governing the exercise of discretion.

Thus, it violates the constitutional prescription that Congress is

the authorized law maker, subject only to the veto of the

president. The constitutional separation of powers doctrine

obliges this Court to strike down the delegation of power in

section 109 of the CAA.

ARGUMENT

INTRODUCTION

“On April 22, 1970, America celebrated the first Earth

Day,” setting off an “‘environmental revolution” punctuated in

the next four years by congressional enactment of “major

legislation on virtually every facet of the environment: air

pollution, water pollution, wild life protection, pesticides, and

coastal zone management.” At the head of the parade were the

4

nm

Clean Air Amendments of 1970, enacted into law on December

31, 1970 on the heels of the newly-established Environmental

Protection Agency (EPA), created just 29 days before.

Anderson, The Environmental Revolution at Twenty-Five, 26

RUTGERS L. J. 395, 395-96 (1995).

These new amendments to the Clean Air Act featured a

brand new grant of power: “to establish nationwide ambient air

standards.” 1970 U.S. CODE CONG. & ADMIN. NEWS 5356-57,

5362. House Report No. 91-1146 explained the significance

of this empowerment, contrasting the old law, under which the

states set “ambient air quality standards,” with the new,

wherein the Administrator of the EPA would “establish

nationwide standards based on criteria developed by him for

various pollutants...” Id. at 5357, 5362, 5374.

To facilitate this fresh delegation of power, Congress,

affirming the Administrator’s existing authority to identify air

pollutants “which in his judgment [have] an adverse effect on

public health or welfare” (see Pub. L. 90-148, 81 Stat. 491

(1967)), granted the additional authority to set “national

primary ambient air quality standards ... which in the

judgment of the Administrator ... allowing an adequate margin

of safety, are requisite to protect the public health.” Section

109 of Pub. L. 91-604, 84 Stat. 1680 (1970) (emphasis added).

Thus, the stage was set 30 years ago for the constitutional

challenge now before this Court.

It is well-established by the opinions of this Court that

Article I, Section 1 of the United States Constitution, which

vests “all legislative powers herein granted in a Congress of the

United States,” acts “both as a grant of powers to Congress and

as a prohibition on congressional delegation of legislative

power to any other institution.” 1 K. DAvis and R. PIERCE,

ADMINISTRATIVE LAW TREATISE 66 (3d ed. 1994) (hereinafter

5

Davis Treatise). Since Hampton & Co. v. United States, 276

U.S. 394, 409 (1928) was decided 72 years ago, this Court has

applied a singular constitutional test by which congressional

delegations of power are to be measured: “[i]f Congress shall

lay down by legislative act an intelligible principle to which

the person or body authorized to [act] is directed to conform,

such legislative action is not a forbidden delegation of

legislative power.” (Emphasis added.) See Mistretta v. United

States, 488 U.S. 361, 371-72 (1989).

Although this Court has not struck down a congressional

delegation since the early New Deal (id., 488 U.S. at 373), the

“intelligible principle” standard is not the child of an out-of-

date court, as so many critics of the “nondelegation doctrine”

insist. See, e.g., | Davis Treatise, supra, at 66-74. First, the

two New Deal opinions, striking down delegations under

Franklin Delano Roosevelt’s National Industrial Recovery Act,

were not written by one of the court’s four “curmudgeons” —

Justices Van Devanter, McReynolds, Sutherland or Butler —

but by the forward-looking chief justice, Charles Evans

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

(1935); Schechter Poultry Corp. v. United States, 295 U.S. 495

(1935). Indeed, in the much maligned, but never overruled,

Schechter case, the thoroughly modern justice, Benjamin

Cardozo, lent the prestige of his pen to affirm the

nondelegation doctrine and the majority’s holding. Id., 295

U.S. at 551-54. (Cardozo, J. concurring.)

Second, even though this Court has not struck down any

congressional delegation since Schechter, the nondelegation

doctrine and its “intelligible principle” test have guided this

Court to adopt more restrictive interpretations of congressional

delegations of power. See, e.g., National Cable Television

Ass’n., Inc., v. United States, 415 U.S. 336, 342 (1970);

Industrial Union Dept. v. American Petrol. Inst., 448 U.S. 607,

6

646 (1980). To reach these interpretative solutions, this Court

has examined both the statutory text and its legislative history,

guided by the “intelligible principle” test. That test, in turn,

requires the Court first, to identify the enumerated legislative

power exercised by Congress. After all, the nondelegation

doctrine is rooted in the same constitutional provision that

limits Congress to the exercise of only the legislative powers

“herein granted.” As Justice Cardozo pointed out in his

concurring opinion in Schechter, a delegation, in order to

contain a principle that is intelligible, must reasonably relate to

a specified congressional power. Thus, Justice Cardozo did

not measure the delegation of power in Schechter to approve

“codes of fair competition” developed by trade associations in

relation to “whatever ordinances may be desirable or helpful for

the well-being or prosperity of the industry affected,” but in

relation to Congress’s power under the “commerce clause,”

concluding that a delegation that runs “as wide as the field of

industrial regulation ... is delegation running riot. No such

plenitude of power is susceptible of transfer.” Schechter,

supra, 295 U.S. at 552-53.

The second prong of the “intelligible principle” test is

whether Congress has laid down a “standard” governing the

“means” by which its expressed policies are to be enforced. As

Justice Cardozo put it in Schechter, there is no constitutional

infirmity in giving to the executive branch the power to choose

“the occasion” to act, but Congress must either lay down a

statutory rule governing the means of enforcement, or use

language that points to a preexisting rule “according to

accepted business standards or accepted norms of ethics.” Id.,

295 U.S. 551-53.

Section 109 of the Clean Air Act fails both halves of the

intelligible principle test, for it is neither an “intelligible”

7

exercise of an enumerated power, nor does it contain a

meaningful “principle” to govern EPA discretion.

I. SECTION 109 OF THE CLEAN AIR ACT IS NOT

INTELLIGIBLY RELATED TO ANY

CONSTITUTIONALLY ENUMERATED POWER OF

CONGRESS.

A. The Original CAA _ Invoked Congress’

Constitutional Power to “Provide for the General

Welfare.”

The CAA originated in “the Air Pollution Control Act of

1955, that defined the federal role as being confined largely to

research [declaring] that air pollution control responsibilities

rested primarily with the states...” W. RODGERS,

ENVIRONMENTAL LAW 130 (2d ed. 1994). Indeed, Congress

expressly stated that it was “the policy of Congress to preserve

and protect the primary responsibilities and rights of the

States and local governments in controlling air pollution.”

Public Law 159, 69 Stat. 322 (1955) (emphasis added). Thus,

“Congress initially responded to the problem of air pollution by

offering encouragement and assistance to the States.” Train v.

Natural Resources Defense Council (“NRDC”), 421 U.S. 60,

63 (1975).

When it amended the 1955 law by enacting the CAA of

1963, Congress remained steadfast, finding “that the prevention

and control of air pollution at its source is the primary

responsibility of States and local government,” and limiting the

federal role to that of “provider,”subsidizing and facilitating

state and local government action. Section 1(a)(3) and (4) of

Pub. L. 88-206, 77 Stat. 392, 393 (1963). Despite finding that

the air pollution problem cut across state lines and was brought

about “by urbanization, development and the increasing use of

8

motor vehicles,” Congress chose to limit federal involvement

to research and development, technical and financial assistance

to state and local government air pollution programs, and

encouragement and assistance to regional air pollution

programs, all to the ultimate end “to protect the Nation’s air

resources so as to promote the public health and welfare and

the productive capacity of its population.” Section 1(b) of Pub.

L. 88-206, 77 Stat. 392, 393 (1963).

Even though the 1963 Act provided for federal assistance

in “actions directed toward abatement of particular air pollution

problems,” House Report No. 508 insisted that the Clean Air

Act continued to recognize the “primary responsibilities and

rights of the States and local governments in controlling air

pollution” because “[i]t is well established that the protection

of the health and welfare of the citizens of a State is a proper

subject for the exercise of the State police power.” 1963 U.S.

CODE CONG. & ADMIN. NEWS 1263, 1267 (emphasis added).

By recognizing the primary role of state and local

government in the control of air pollution, and limiting the

federal role to that of “provider,” congressional efforts to

control air pollution from 1955 through 1963 followed the

well-established pattern of “dual federalism,” the

constitutionality of which has been unquestioned since Steward

Machine Co. v. Davis, 301 U.S. 548 (1937).

B. The Current CAA Rests Upon a Presumed Power

of Congress to Promote the General Welfare.

In 1965, Congress breached this wall of “dual federalism,”

invading the regulatory territory of state and local governments

with a grant of power to the Secretary of Health, Education and

Welfare (“HEW”) to regulate “the emission of any kind of

substance, from any class or classes of new motor vehicles or

9

new motor vehicle engines, which in his judgment cause or

contribute to, or likely to cause or contribute to air pollution

which endangers the health or welfare of any persons....”

Section 202(a) of Pub. L. 89-271 992 (1965) (emphasis added).

House Report No. 899 defended this expanded federal role as

necessitated by “trends of economic growth, technological

progress, and rising urban populations,” such that “air

pollution, especially emanating from motor vehicles, affecting

thousands of communities in all parts of the country are

imposing a serious threat to public health and national welfare.”

1965 U.S. CODE CONG. & ADMIN. NEWS 3610. The Report

suggested, however, that the problem of motor vehicle

emissions was an exception, not to be taken as a departure from

Congress’ view that control of air pollution remained as a

“basic right ... and responsibilit[y] ... of States.” Id. at 3612.

Two years later, Congress enacted the Air Quality Act of

1967. Although Congress reiterated verbatim the fourfold

findings and purposes in the Clean Air Act of 1963, it extended

the coercive power of the federal government, authorizing the

HEW Secretary to set the criteria by which standards for

ambient air quality were to be measured, and thereby fixing a

national floor below which state and local governments could

not go. If those governments failed to meet the federal

minimum, Congress authorized HEW to take direct action to

effect federal abatement based upon HEW’s criteria, not just

withhold federal funds. 1967 U.S. CODE CONG. & ADMIN.

NEws 1952-54.

Before the states could complete their “standard-setting

and plan-preparation” duties under the 1967 Act, they were

overtaken by the Clean Air Act Amendments of 1970, which,

in the words of this Court, took “a stick to the States ... no

longer giv[ing] [them] any choice as to whether they would

meet [the] responsibility [to combat air pollution].” Train v.

10

NRDC, 421 U.S. at 64-65. This shift in power did not come as

a result of new congressional findings that state and local air

pollution control was inadequate, nor did it come from a

deliberate expansion of the federal purposes in effecting air

quality, as the findings and purposes of the CCA of 1963

remain unaltered even to this day. 42 U.S.C. § 7401. Instead,

the change came from what House Report No. 91-1146

identified to be an irresistible “ground swell” of public opinion:

Citizens and officials on the grassroots level

throughout the United States have become seriously

aroused over the threat of air pollution to health and

well-being and they are anxious to have stringent

controls imposed and enforced effectively at the

earliest possible date... This ground swell is

important if we are to secure clean air everywhere in

the United States, and it is important that this

momentum not be lost. Therefore, itis urgent that

Congress adopt new clean air legislation.... [1970

U.S. CODE CONG. & ADMIN. NEWS 5360.]

Although Congress expressed itself in generalities, it is not too

difficult to chronicle the events to which this Report referred:

On April 22, 1970 ... the first Earth Day [, oJjne

hundred thousand people walked down New York's

Fifth Avenue to demonstrate their concern for the

planet. At 1500 college campuses and 10,000

schools, many thousands more participated in teach-

ins and other ecological happenings. Politicians rode

bicycles. Demonstrators protested ... air pollution by

smashing automobiles with sledgehammers. From

Clarksburg, West Virginia ... to San Francisco,

California..., the nation displayed its dismay at the

state of the environment. {[Anderson, The

11

Environmental Revolution at Twenty-Five, 26

RUTGERS L. J., at 395.]

In its haste not to be left behind by this “environmental

revolution,” Congress did not bother to spell out why it had

finally discarded the “dual federalism” approach to air pollution

control, and to assign to the EPA primary responsibility for

regulating ambient air quality. Normally, when Congress

decides to impose a national regulatory standard, when its

purpose is to protect the health, safety or welfare of the people,

Congress relies upon its powers to enact laws that are necessary

and proper to regulate interstate commerce as justification for

its intrusion upon state “police power.” See, e.g., United States

v. Morrison, 529 U.S. __, 120 S.Ct. 1740, 146 L.Ed. 2d 658,

674, 683-88 (2000). But Congress did not do that here.

Rather, from the beginning, Congress has indicated that, when

it comes to air pollution, its overriding objective has always

been “to promote the public health and welfare.”

In 1955, it placed responsibility for the federal effort to

combat air pollution in the Department of HEW, with the

nation’s Surgeon General playing a prominent role. Train v.

NRDC, supra, 421 U.S. at 63. This continued until 1970 when

the EPA was established. The change from HEW and the

Surgeon General to the EPA and its Administrator did not

signal a change in constitutional purpose or policy. As

previous Congresses were concerned with the public health in

the first 15 years of combating air pollution, so, according to

Conference Report No. 91-1783, was the 91* Congress

concerned when it enacted the Clean Air Act Amendments of

1970: “The [national ambient air quality] standards were to be

adequate to protect the health of persons. The goals were to be

adequate to protect the public health or welfare from any

adverse effects.” 1970 U.S. CopE CONG. & ADMIN NEws

5376.

12

Yet, as Congress previously acknowledged, a regulation

that “protect{s] ... the health and welfare of the citizens of a

State is proper ... exercise of the State police power.” 1963

U.S. CopE CONG. & ADMIN. NEWS 1267 (emphasis added).

So long as Congress linked federal involvement to funding, and

other “providing” functions, Congress operated within its

power to “provide for the general welfare.” See United States

v. Butler, 297 U.S. 1, 64 (1936). Once it moved beyond setting

national standards in conjunction with its “spending power,”

however, Congress began to impose direct regulations for the

purpose of promoting the general welfare, presuming that it

had, like the states, a general police power.

C. Section 109 of the CAA Is Not Intelligibly Related

to Any Constitutional Power of Congress

Concerning the General Welfare.

Since United States v. Butler, supra, it has been settled that

the General Welfare Clause “confers [upon Congress] only a

power to spend [not an] independent power to regulate.” L.

TRIBE, AMERICAN CONSTITUTIONAL LAW 322 (2d ed. 1988).

As Justice Joseph Story observed, if Article I, Section 8, Clause

1 confers upon Congress the power to “provide for the common

defense and general welfare,” independent from the power “to

lay and collect taxes,” then “the government of the United

States is, in reality, a government of general and unlimited

powers, notwithstanding the subsequent enumeration of

specific powers.” 1 J. STORY, COMMENTARIES ON THE

CONSTITUTION, § 907 (Sth ed. 1891).

Although Congress’ “general welfare” power must be tied

to its power to appropriate money from the federal treasury, it

may use its “spending power” to accomplish purposes outside

those enumerated in the constitutional text. United States v.

Butler, 297 U.S. at 65-67. Congress may accomplish such

13

purposes, however, only by conditioning the receipt of federal

subsidies upon compliance with national standards. Thus, it

may, pursuant to its “general welfare” power, impose national

standards upon the states only if the states choose to take the

federal funds. ‘See South Dakota v. Dole, 483 U.S. 203 (1987).

According to the legislative history and the statutory text,

Congress has occupied the field of ambient air quality solely in

pursuit of the “public health and welfare.” Thus, section 108

of the CAA instructs the EPA Administrator to continue to

develop “air quality criteria” for “each pollutant ... emissions of

which, in his judgment, cause or contribute to air pollution

which may reasonably be anticipated to endanger public health

or welfare.” Section 109, in turn, instructs the Administrator

to take “such criteria and allowing an adequate margin of

safety,” prescribe “primary ambient air quality standards” that

are “requisite to protect the public health” and “secondary

ambient air quality standards” that are “requisite to protect the

public welfare from any known or anticipated adverse effects

associated with the presence of such air pollutant in the

ambient air.” 42 U.S.C. §§ 7408(a), 7409(b).

According to the EPA, and lower court opinions

construing this language in light of the legislative history, the

EPA Administrator must not consider “economic costs,” or

engage in any other kind of “cost/benefit” analysis, in the

setting of the NAAQS. Indeed, the EPA has scrupulously

abstained from taking such costs into consideration, limiting its

focus solely to the factors of “public health” or “public

welfare.” See Clean Air Act: Ozone and Particulate Matter

Standards: Hearings Before the Subcomm. on Clean Air,

Wetlands, Private Property, and Nuclear Safety of the Senate

Env't. and Pub. Works Comm., 105th Cong., Ist Sess. 282

(1997). And the United States Court of Appeals for the District

of Columbia Circuit has read Section 109(b)(1) of the CAA as

i4

barring the EPA from considering even technological

feasibility, ruling that the sole objective of the CAA is to

protect public health. Lead Industries Ass'n. v. EPA, 647 F.2d

1130, 1149-56 (D.C. Cir. 1980). Accord, Train v. NRDC, 421

U.S. at 78 (“[P]rimary ambient air standards deal with the

quality of outdoor air and are fixed on a nationwide basis at

levels which the Agency determines will protect the public

health.”’)

Had Congress continued to pursue this singular goal of

public health in the setting of NAAQS by means of its spending

power, then providing a one-dimensional guide to the EPA

could have been intelligibly related to its constitutional power

to “provide for the general welfare.” But it did not give the

States a choice to comply with the NAAQS at the risk of losing

federal air pollution control subsidies. Rather, as this Court

ruled in Train v. NRDC, “they [the States] were required to

attain air quality of specified standards, and to do so within a

specified period of time.” 421 U.S. at 65. Thus, the standard

in Section 109 of the CAA governing the power of the EPA to

set NAAQS cannot possibly be justified as intelligibly related

to the “public health and welfare,” because Congress has no

general police power under the Constitution to promote the

public health and welfare . To paraphrase Justice Cardozo’s

concurring opinion in Schechter, supra, 295 U.S. at 552-53,

“[njo such plenitude of power is susceptible of transfer,”

because Congress does not have plenary power to promote the

general “well-being” of the people.

D. Section 109 of the CAA Is Not Intelligibly Related

to Either the Commerce Clause or the Necessary

and Proper Clause.

As noted above, it is a vain search, indeed, to seek in the

legislative history leading up to the Clean Air Amendments of

15

1970 any congressional expressions of concern that air

pollution was having an adverse impact on the national

economy. The House Report supporting the imposition of

national standards on motor vehicle emissions focused solely

upon the “health problems arising out of automotive air

pollution,” concluding that “exhaust control standards n a

national scale are necessary and would be of benefit to the

entire country.” 1965 U.S. CODE CONG. & ADMIN. NEws

3611-12. Similarly, in 1967, Congress authorized the HEW

Secretary “to proceed immediately to court for abatement of

any pollution that creates substantial and imminent public

health endangerment ... regardless of technological and

economic feasibility.” 1967 U.S. CODE CONG. & ADMIN.

NEws 1954-55. Not surprisingly, then, when Congress enacted

the 1970 amendments, authorizing the EPA Administrator to

fix NAAQS, it did so out of regard for “the health and well-

being of the American people,” not the health and well being of

the national economy. Congress did not even dictate to the

EPA that it must take into account both “technological

feasibility” and “economic costs” in the setting of NAAQS,

whatever the source, although it had previously instructed the

EPA to consider both factors in setting the standards for

emissions from a single source, the motor vehicle. Contrast

House Report No. 899 in 1965 U.S. CODE CONG. & ADMIN.

NEWS 3616 with House Report No. 91-1146 in 1970 U.S. CODE

CONG. & ADMIN. NEws 5356-57, 5362.

In the past, when Congress has invoked its powers under

the Commerce Clause, and its familiar companion, the

Necessary and Proper Clause, it has limited the scope of its

regulation accordingly. For example, when Congress legislated

against the “moral wrong” of racial discrimination in the 1964

Civil Rights Act, the ensuing prohibitions against that moral

wrong were tailored to its adverse impact on interstate

commerce. It did not legislate against racial discrimination

16

generally, even though one of the stated purposes of the 1964

Act was “to promote the general welfare by eliminating

discrimination based on race....”” See Heart of Atlanta Motel v.

United States, 379 U.S. 241 (1964).

Congress chose not to follow this pattern, however, with

the Clean Air Act. Having stated as one of its purposes “to

protect the Nation’s air resources so as to promote the public

health and welfare and the productive capacity of its

population,” Congress not only gave the EPA, by the terms of

Section 109, carte blanche to set nationwide ambient air

standards without regard for any factor related to the national

economy, but also, by the terms of Section 110, did not

condition the timetable for implementation and enforcement of

those ambient air standards upon findings related to the

economy. 1970 U.S. CODE CONG. & ADMIN. NEws 5363-65.

Even though the original timetable of Section 110 has been

changed, the implementation section of the statute has never

been construed as a grant of “exceptions” to the standards,

such exceptions being confined to those permitted under

‘Section 110(f), after a finding, among other things, that “the

continued operation of [the polluting] source is essential to

national security or to the public health or welfare.” See

generally Train v. NRDC, 421 U.S. at 78-99.

By making “requisite to protect the public health” the

single factor by which the EPA Administrator determines

national primary ambient air quality standards, and by making

“requisite to the public welfare” the single factor by which the

EPA Administrator sets such secondary standards, Congress

divorced the Clean Air Act and its 1970 Amendments from the

Commerce Clause and the Necessary and Proper Clause. Thus,

neither factor meets the “intelligible” prong of the “intelligible

principle” test that this Court has applied in the enforcement of

its nondelegation doctrine. Again, paraphrasing Justice

17

Cardozo’s opinion in Schechter, Congress has authorized the

EPA to set such NAAQS as it thinks “desirable or helpful for

the well-being or prosperity” of the nation: “([t}his is delegation

running riot. No such plentitude of power is susceptible of

transfer.” Schechter v. United States, 295 U.S. at 553.

Il. SECTION 109 OF THE CLEAN AIR ACT DOES

NOT PROVIDE A GENERAL RULE TO WHICH

THE EPA ADMINISTRATOR MUST CONFORM .

A. Congress Must Provide a Rule of Conduct to Guide

the Exercise of Administrative Discretion.

In the seminal case of Hampton & Co. v. United States,

276 U.S. 394 (1928), this Court stated that the “intelligible

principle” test could be satisfied only if Congress declared the

“general rule ... to which the person or body authorized” to act

“is directed to conform.” Id., 276 U.S. at 408, 409. In so

ruling, the Court simply adopted a phrase, the meaning of

which had been previously settled in its opinions dating back

to its early history.

In 1815, Chief Justice John Marshail illustrated the

meaning of “intelligible principle” by equating it to a statement

of a general rule of law, as contrasted to one of the rule’s many

applications:

The rule that the goods of an enemy found in the

vessel of a friend are a prize of war, and that the

goods of a friend found in the vessel of an enemy are

to be restored ... is founded on the simple and

intelligible principle that war gives a full right to

capture the goods of an enemy, but gives no right to

capture the goods of a friend. In the practical

application of this principle, so as to form the rule, the

18

propositions that the neutral flag constitutes no

protection to enemy property, and that the belligerent

flag communicates no hostile character to neutral

property, are necessarily admitted. [The Nereide, 13

U.S. (9 Cranch) 388, 418-19 (1815) (emphasis

added). |

Twelve years later, Justice Bushrod Washington expressed

the same understanding that a statement of an “intelligible

principle” was equivalent to a statement of a general rule.

Mason v. Haile, 25 U.S. (12 Wheat.) 370, 379 (1827)

(Washington, J., dissenting). In 1839, Justice Phillip Barbour

in similar manner equated a general rule governing the

interpretation of written contracts to a statement of “intelligible

principle.” Bradley v. The Washington, Alexandria, and

Georgetown Steam Packet Co., 38 U.S. (13 Pet.) 89, 97 (1839).

Ninety years later, this Court still indicated that to be

“intelligible,” a law must establish a meaningful “‘standard of

duty’” or a “‘prohibition by which conduct can be governed,’”

or otherwise ‘[i}t is not a rule at all; it is merely exhortation and

entreaty.”” A.B. Small Co. v. American Sugar Refining Co.,

267 U.S. 233, 240 (1925).

In light of such usage, this Court found that Congress was

not required to write a statute with such precision as to direct

the President in “the details of its execution,” but that it was

perfectly “intelligible” for Congress to lay down a general rule

of reciprocal equality in the fixing of tariffs, leaving it to the

President only “to ascertain and declare the event upon which

[Congress’] expressed will was to take effect.” Hampton &

Co. v. United States, 276 U.S. at 404, 406, 410-11. On the

other hand, this Court ruled in both a Refining Co. v.

Ryan, 293 U.S. at 415, 418, 427, 430, and Schechter v. United

States, 295 U.S. at 541, that Congress had failed to meet the

“intelligible principle” test because it had failed to lay down a

19

“general rule” governing the exercise of presidential discretion.

B. Section 109 of the Clean Air Act Does Not Provide

a General Rule Controlling EPA Discretion.

Section 109(b)(1), on its face, does not state a general rule

guiding the discretion of the EPA Administrator in setting

NAAQS. To the contrary, it is left to “the judgment of the

Administrator” to determine those standards for each air

pollutant “which in his judgment has an adverse effect on

public health or welfare” and for which he has developed air

quality criteria, “allowing [for] an adequate margin for safety,

[as] are requisite to protect the public health [or] welfare.” 42

U.S.C. §§ 7408 and 7409 (emphasis added). As pointed out by

the majority opinion below, neither Section 109 nor Section

108 of the CAA provides any “determinate criterion for

drawing lines,” leaving “it free to pick any point between zero

[risk to the public health or welfare] and a hair below the

concentrations yielding London’s killer fog.” American

Trucking Ass’ns v. United States (hereinafter A.T.A. v. U.S.),

175 F. 3d 1034, 1037 (D.C. Cir. 1999).

Even the dissent below did not find that either Section 109

or Section 108 set forth a general rule by which to measure the

EPA Administrator’s discretion. To the contrary, the dissent

admitted that the Clean Air Act requires the Administrator to

“set pollution standards at levels necessary to protect the public

health, whether ‘reasonable’ or not, whether ‘appropriate’ or

not.” Id., 175 F.3d at 1058. As Chief Justice John Marshall

pointed out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

413-21 (1819), the word “necessary” signifies a matter of

discretion, not one of obligation, and, if applied to Section 109,

it can mean any air quality standard that facilitates, in the

unreviewable opinion of the Administrator, the goals of public

health or welfare.

20

Implicitly recognizing this fact, the dissent below made a

valiant attempt to maintain that EPA must base its standards on

“air quality criteria” that accurately reflect the latest scientific

knowledge” and that “the EPA followed the guidelines

published by the American Thoracic Society,” setting “the

ozone and fine particle standards within ranges recommended

by the CASAC, the independent scientific advisory committee

created pursuant to section 109 of the Act.” ATA v. U.S., 175

F.3d at 1058-61. As the majority observed, however, the

“question whether EPA acted pursuant to lawfully delegated

authority is not a scientific one.” Id., 175 F. 3d at 1036.

Moreover, the statute creating the scientific advisory committee

contains no rule governing that committee’s discretion. And

even if it did, it would run afoul of the absolute rule that

Congress may not delegate such power to “private persons

whose interests may be and often are adverse to the interests of

others” who are affected by the regulation. Carter v. Carter

Coal Co., 298 U.S. 238, 311 (1936).

in a final effort to rescue Section 109, the dissent below

suggested that “[b]ecause the Clean Air Act gives politically

accountable state governments primary responsibility for

determining how to distribute the burdens of pollution

reduction, and therefore how NAAQS will affect specific

industries and individual businesses, courts have less reason to

second-guess the specificity of the congressional delegation.”

A.T.A. v. U.S., 175 F.3d at 1061. Just the opposite is the case.

According to the Necessary and Proper Clause, it is for

Congress, not the states, to “make all laws which shall be

necessary and proper for carrying into Execution” the powers

granted in the Constitution. Moreover, as this Court has

already established, the power of the states granted under

Section 110 of the Clean Air Act has nothing to do with the

21

setting of the national ambient air standards,’ but only the

implementation and enforcement of them. Train v. NRDC, 421

U.S. at 64-65, 79, 89-90.

C. Section 109 Fails to Provide Any Meaningful

Standard Limiting EPA Discretion.

It has often been stated by this Court that it is enough if a

statute contains a meaningful standard guiding the discretion of

the administrative agency, and that such a standard may be

gleaned either from words with meanings acquired through

long-standing customs analogous to the common law (United

States v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932))

or “from the purpose of the Act, its factual background and the

statutory context in which they appear.” American Power &

Light Co. v. SEC, 329 U.S. 90, 104 (1946).

In his concurring opinion in the Schechter case, Justice

Cardozo allowed that Congress may use words with

prepackaged meanings because of the historical gloss that has

been placed upon those words in accordance with commercial

business practices and social customs. It is one thing, Justice

Cardozo observed, to use such words as “unfair” which connote

wrongdoing “according to accepted business standards or

accepted norms of ethics,” but it is quite another to use such

words as “fair” which connote “whatever ... may be desirable

or helpful for ... well-being or prosperity....” With respect to

words of the latter type, Justice Cardozo opined, their function

“js not merely negative, but positive; the planning of

improvements as well as the extirpation of abuses.” Hence, he

concluded, such “positive” words must be defined with

* State and local governments may set higher state and local standards, but

not national ones. See 42 U.S.C. § 7416.

22

precision, lest they open the floodgates of regulation without

sufficient congressional limitation. Schechter Poultry Corp. v.

United States, 295 U.S. at 552-53.

The phrases, “requisite to protect public health” and with

an “adequate margin of safety” are unknown to the common

law, without reference, for example, to the language of

nuisance or trespass. Thus, unlike a term such as “unfair

competition,” which has a common law reference point, such

phrases do not convey a “limited concept.” See id., 295 U.S.

531-32. Nor are they referents to medical, scientific or other

terminology with commonly understood meanings.’

Moreover, the words used in Section 109 are of the “positive,”

not “negative,” type. As Professor Cass Sunstein has recently

observed, both the provision in Section 109 relating to public

health and the one relating to the public welfare “appear to

contemplate the existence of ‘safe thresholds.’ The basic idea

is that EPA should ensure that the air is ‘safe’ and the public

welfare is ‘protected.”” SUNSTEIN, Is the Clean Air Act

Constitutional ?, 98 MICH. L. REV., 303, 314. Thus, the Clean

Air Act is designed not just to eliminate “unclean” air, but to

* Those who are unfamiliar with the realities of environmental law, when

reviewing goals such as “adequate margin of safety” and “requisite to

protect public health,” cannot appreciate the roaring scientific debate as to

what levels of emissions are permissible under such terms. Not only is it

difficult to reach agreement on appropriate models to analyze emissions, the

level of emission at which any particular pollutant is harmful is not always

rationally determinable. Allowing the Administrator then to pick an

emission level providing an “adequate margin of safety,” particularly with

cost not being a Consideration, serves further to remove the final emission

standard from an objectively supportable standard. For a discussion of just

some of the disputes underlying the setting of such standards, see Michael

Fumento, Science Under Siege, chapter 2, “Of Mice (and Rats) and Men:

The Politics of Cancer Testing” and chapter 3, “A Fairly Brief Nonboring

Lesson in the Pitfalls of Amateur Epidemiology.”

23

achieve “clean” air, not just to eliminate “unhealthy” industrial

facilities, but to promote “healthy” facilities. But, as Professor

Sunstein has also observed, the statute provides absolutely no

guidance to the EPA as to how “safe,” or how “clean” and how

“healthy” the air must be. Even the chairman of the EPA’s

Scientific Advisory Committee has “unambiguously

confess[ed] ... the impossible nature of the task imposed on

EPA by the Act.” Id., 98 MICH. L. REV., at 315.

In short, the EPA is a 1970's version of the NIRA, which

Justice Cardozo described as having been set up to enact a

“comprehensive body of rules to promote the welfare of the

industry, if not the welfare of the nation, without reference to

standards, ethical or commercial, that could be known or

predicted in advance of its adoption.” Schechter, 295 U.S. at

553.

This uncertainty of meaning is compounded, rather than

resolved, by examining the “purposes” of the Act, its factual

findings, and statutory context. The statement of purpose of

the Clean Air Act is as broad and extensive, if not more so,

than that in the discredited NIRA. Section 109(b)(1) of the

CAA reads:

to protect the Nation’s air resources so as to promote

the public health and welfare and the productive

capacity of its population.

The declaration of policy in the NIRA read, in relevant part:

to provide for the general welfare ... to promote the

fullest possible utilization of the present productive

capacity of industries... and otherwise to rehabilitate

industry and to conserve natural resources.

[Schechter, 295 U.S. at 531, n. 9.]

24

Thus, “requisite to the public health,” like the term “fair

competition” in the NIRA, is no more than a “convenient

designation for whatever set of laws the formulators of a code

... May ... prescribe as being wise and beneficent provisions ...

to accomplish the broad purposes of rehabilitation [and]

correction....”” Id., 295 U.S. at 531.

The findings of the CAA do nothing to narrow that Act’s

broad purpose. Rather, the finding in Section 1(a)(2)

acknowledges that air pollution is a “complex” subject that has

a wide-ranging adverse impact upon people, places and things.

Yet Congress has made no specific findings that would give

policy direction to the Administrator charged with enforcing

the Act. This glaring omission has led one astute commentator

to observe that “[t]he day will eventually come when the same

court of appeals holds that EPA has behaved unlawfully both

for regulating above a certain level and also for not regulating

below that level.” Sunstein, supra, 98 MICH. L. REV. at 322.

D. The Constitution Prescribes that Congress is the

Authorized Law Maker, Subject only to the Veto of

the President.

The decision of the majority below, while giving lip-

service to the nondelegation doctrine, has ordered a remedy that

would emasculate it. It gives up on the idea that Congress

makes the rules in favor of a remedy whereby “[t]he agency

will make the fundamental policy choices,” after being given

“an opportunity to extract a determinate standard on its own.”

A.T.A. v. United States, 175 F.3d at 1038. In doing so, it has

adopted Kenneth Culp Davis’ view that the nondelegation

doctrine is “dead” and that Congress cannot “be expected to

legislate specifically, and should not be asked to do so,” so long

as “agencies could be required to develop protections against

uncontrolled discretionary power, and to adhere to them.”

25

Sunstein, “Is the Clean Air Act Unconstitutional?,” 98 MICH.

L. REV., at 340. Such a doctrine of “administrative self-

restraint” has no place in a Constitution that, after vesting “all

legislative powers herein granted” in “a Congress of the United

States,” Constitution, Art. I, Sec. | enumerates as one of those

powers, “to make all laws which shall be necessary and proper

for carrying into Execution the foregoing powers.” Id., Art. I,

Sec. 8.

As Justice Hugo Black put it in the “steel seizure” case, it

is Congress, not the President (and certainly not any

administrative agency composed of persons who are not even

constitutional officers), which determines not only the public

policies of the nation, but the “manner” by which such policies

are to be executed. Thus, it is for Congress to adopt a

particular policy, and then to promulgate the “rules of conduct

to be followed” in pursuit of such policy. Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952). Whatever

rules are adopted by an executive or administrative officer, as

this Court dictated in both Panama Refining, 293 U.S. at 428-

29, and Schechter, 295 U.S. at 529-30, must be “subordinate”

to the rules laid down by Congress. If Congress has laid down

no general rule, then such rules can hardly be of this

subordinate class.

Indeed, if Congress does not make the rules governing

interstate commerce, then Congress has failed to exercise the

power vested in it by Article I, Section 8, Clause 3. As Chief

Justice John Marshall ruled in Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 197 (1824), “the power to regulate ... is to prescribe

the rule by which commerce is to be governed, [and] this

power, like all others vested in Congress, is complete in itself,

[and] may be exercised to its utmost extent....” (Emphasis

added.) As to this “plenary ... power over commerce ... among

the several states,” it was “vested in Congress as absolutely as

26

it would be in a single government,” thus making Congress the

sole depository of that power:

The wisdom and the discretion of Congress, their

identity with the people, and the influence which their

constituents possess at election, are, in this, as in

many other instances...the sole restraints on which

they have relied, to secure them from its abuse. [Id.]

If Congress passes the buck, transferring to ar

administrative agency the power to “prescribe the rule by which

commerce is to be governed,” then it has undermined this vital

constitutional principle of electoral accountability to the people.

Likewise, if Congress transfers to such an agency the power to

determine the “manner” in which its declared policies are to be

implemented, it has transferred to that agency the power to

determine the “necessary and proper” means by which its

policies are to be executed. Chief Justice Marshall also ruled,

in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), that

it was Congress, not the courts (a fortiori not any

administrative agency with judicial power), in which the people

had “confid[ed] the choice of means” so as not “to deprive the

legislature of the capacity to avail itself of experience, to

exercise its reason, and to accommodate its legislation to

circumstances.” Id., 17 U.S. at 415.

Today, however, this Court has permitted departures from

these salutary rules, succumbing to the claim that “in our

increasingly complex society, replete with ever changing and

more technical problems, Congress simply cannot do its job

absent an ability to delegate power under broad general

directives.” Mistretta v. United States, 488 U.S. 361, 372

(1989). Even if that were so, it would not justify adjusting the

Constitution’s commitment to the vesting of “all” legislative

powers in a Congress of the United States, as provided for in

27

Article 1, Section 1. Nor does it justify substituting some kind

of administrative process for making the rules for the

constitutionally mandated bicameral and presentment process

in Article I, Section 7, no matter how “clumsy, inefficient, even

unworkable” those processes may appear. See LNS. v.

Chadha, 462 U.S. 919, 959 (1983).

Il. THE CONSTITUTIONAL SEPARATION OF

POWERS DOCTRINE OBLIGES THIS COURT TO

STRIKE DOWN SECTION 109 OF THE CLEAN AIR

ACT.

Prior to the 20th century, this Court unwaveringly adhered

to the constitutional division of powers among the legislative,

executive and judicial branches. In 1881, an unanimous court

— composed of such experienced jurists as Justices Samuel F.

Miller, Stephen J. Field and John Marshal Harlan — stated that

the Constitution had “blocked out with singular precision, and

in bold lines, in its three primary Articles, the allotment of

power to the executive, legislative, and judicial departments of

the government” and prophetically warned:

[t}he increase in the number of States, in their

population and wealth, and in the amount of power, if

not in its nature to be exercised by the Federal

Government, presents powerful and growing

temptations to those to whom that exercise is

intrusted, to overstep the just boundaries of their own

department, and enter upon the domain of one of the

others, or to assume powers not intrusted to either of

them.” [Kilbourn v. Thompson, 103 U.S. 168, 191

(1881).]

28

The Court could not have been more prescient. By the

end of the first third of the 20th century, the Court’s prophetic

concern that “new realities” would trump the constitutional

separation of powers came to pass. Harvard Law School Dean,

James Landis, put it this way:

The last century has witnessed the rise of a new

instrument of government, the administrative

tribunal... In terms of political theory, the

administrative process springs from the inadequacy of

a simple tripartite form of government to deal with

modern problems.... [W]Jhen government concerns

itself with the stability of an industry it is only

intelligent realism for it...[to vest] the necessary

powers with the administrative authority it creates, not

too greatly concerned with the extent to which such

action does violence to the traditional tripartite theory

of government organization. [J. LANDIS, THE

ADMINISTRATIVE PROCESS 1, 11-12 (1938).]

Not surprisingly, this Court’s opinion in Kilbourn v.

Thompson, supra, came under attack by those who spearheaded

this administrative law “innovation.” Recognizing that the

“typical administrative agency exercises many types of power,

including executive, legislative, and judicial power,” Kenneth

Culp Davis, one of the 20th century’s leading legal realists,

recognized that “a strict application of the theory of separation

of powers would make the very existence of such an agency

unconstitutional.” 1 K. DAvis & R.PIERCE, ADMINISTRATIVE

LAW 24 (3d ed. 1994). He and others have valiantly attempted

to deconstruct the Constitution’s separation of powers,

claiming that the “doctrine of separation of powers has

remarkably little support in the language or the history of the

Constitution” and that justices of this Court have “apparently

indulged in the mistaken belief that the Constitution includes

29

a separation of powers requirement.” 1 K. DAVIS & R. PIERCE,

at 34.

Davis and others have claimed that while “Articles I, I,

and III establish three Branches of government ... they say little

about the powers of each.” Id. Just because the Constitution

does not contain a definition of the three kinds of powers does

not mean that there is no meaningful legal distinction between

legislative, executive and judicial powers. Indeed, the

Constitution “says little” about the freedom of speech, the

freedom of the press, and due process of law, but that has not

prevented this Court from finding in those terms significant

limits upon the power of government. To be sure, the members

of this Court in several recent cases have differed in their

understandings of the meaning of legislative, executive and

judicial powers, e.g., Bowsher v. Synar, 478 U.S. 714 (1986),

but differences of opinion over the meaning and application of

the First Amendment have not deterred this Court from

deciding the meaning of its terms.

If this Court should decline to adjudicate the legal norms

that command separation of the legislative, executive and

judicial powers, and continue to permit Congress to delegate its

lawmaking powers to administrative agencies, then it will not

be putting its judicial imprimatur upon a “new instrument of

government,” as James Landis claimed in 1938, but on an “old

instrument of tyranny.” For it was during the Middle Ages that

the Court of Star Chamber reigned supreme in England,

exercising “broad and undefined executive, legislative and

judicial powers” over such matters as “trades and businesses

and the conduct of elections ... and of printing.” SOURCES OF

OUR LIBERTIES 125, 130 (R. Perry, ed. 1978). Only after the

Star Chamber was abolished by Parliament in 1648 was “due

process of law as established by Magna Carta” restored in

England. Id. at 125. Only by ruling that Section 109 of the

30

CAA effects an unconstitutional delegation of legislative power

will this Court will take a similar step towards restoration of

the rule of law in America.

CONCLUSION

For the reasons stated herein, the decision of the court

below, that Section 109 constitutes an unconstitutional

delegation of legislative power, should be affirmed and the case

remanded with instructions to dismiss.

Respectfully submitted,

HERBERT W. TITUS WILLIAM J. OLSON*

TROY A. Titus, P.C. JOHN S. MILES

5221 Indian River Road WILLIAM J. OLSON, P.C.

Virginia Beach, VA 23464 Suite 1070

(757) 467-0616 8180 Greensboro Drive

McLean, VA 22102

LAWRENCE J. STRAW, JR. (703) 356-5070

STRAW & GOUGH Attorneys for amici curiae

Suite 300 * Counsel of Record

12304 Santa Monica Blvd.

Los Angeles, CA 90025

(310) 826-7766 September 11, 2000