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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A33

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 457

## Text

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A33. Public record. Not legal advice.