Amicus Curiae Brief — Nat'l Labor Relations Bd. v. SW Gen., Inc., 136 S. Ct. 2489 (2016) (No. 15-1251)

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No. 15-1261

Supreme Court of the Gnited States

*

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

V.

SW GENERAL, INC., doing business

as SOUTHWEST AMBULANCE,

Respondents.

°

On Writ Of Certiorari To The

United States Court Of

For The District Of Columbia Circuit

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

¢

KIMBERLY S. HERMANN

Counsel of Record

LAURA JEAN BERGER

SOUTHEASTERN LEGAL FOUNDATION

2255 Sewell Mill Road, Suite 320

Marietta, Georgia 30062

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amicus Curiae

September 23, 2016

—

COOCKLE LEGAL. BRIEFS (800) 226-4864

WWW COCKLELEGALBRIEFR COM

QUESTION PRESENTED

Section 3345(b)(1) of the Federal Vacancies Re-

form Act, 5 U.S.C. § 3345, et seg., limits when a per-

manent nominee for a vacant office may also serve

temporarily as the acting official. The question pre-

sented is whether that limitation applies to all tem-

porary officials serving under 5 U.S.C. § 3345(a), or

whether it is irrelevant to officials who assume acting

responsibilities under Subsections (a)(2) and (a)3).

il

TABLE OF CONTENTS

Page

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

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TABLE OF AUTHORITIES ......................00c000000 iv

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

SUMMARY OF ARGUMENT .......................000000- 2

I iicintrncsalichiniaiicininentansetubatsenniiamcantane 5

I. Preserving the separation of powers through

our system of checks and balances is a con-

stitutional necessity ......................c0eeeeeeeeee 5

A. The Senate’s advice and consent of ex-

ecutive appointments is a critical com-

ponent of separation of powers ........... 6

B. The Appointments Clause does not ex-

ist to serve the Executive's sole inter-

est OF CONVENIONCE ................cccccccceceeses 12

C. To preserve the separation of powers

principles provided by the Appoint-

ments Clause, this Court should af-

firm the lower court’s decision ............ 16

Il. Appointees serving in violation of the

FVRA have access to shocking amounts of

power and control with no check on uses

Fe tstrschcrcnsnccentesontdiebitnioduensnnmtine 18

A. Appointees who have served and are

serving in violation of the FVRA exer-

cise prosecutorial discretion................ 19

ill

TABLE OF CONTENTS - Continued

Page

B. Appointees who have served and are

serving in violation of the FVRA are

responsible for national defense and

shape foreign policy...........................+. 23

C. Appointees who have served and are

serving in violation of the FVRA are

responsible for diverse areas of domes-

tic policy and exercise control over en-

tire sectors of the economy.................. 27

i rictnctecscensccsonsnenretunetevetmnnnenecsoscens 31

iv

TABLE OF AUTHORITIES

Page

CASES

Alden v. Maine, 527 U.S. 706 (1999).............0c..ccccc0eee 11

Buckley v. Valeo, 424 U.S. 1 (1976) ...............0000000008 8,13

City of Arlington v. FCC, 133 S. Ct. 1863 (2013) ....2, 10, 11

Clinton v. City of New York, 524 U.S. 417 (1998) .....11, 13

Edmond v. United States, 520 U.S. 651 (1997) ............ 8

Free Enter. Fund v. Pub. Co. Accounting Over-

sight Bd., 130 S. Ct. 3138 (2010) .........0.....00.. 2,16

Freytag v. Comm’r, 501 U.S. 868 (1991) ............. passim

In re Special Proceedings, 842 F. Supp. 2d 232

alicia insiidsiariehcincitinptiallll eldaiaidtaitiniatescned 22

Mistretta v. United States, 488 U.S. 361 (1989)....... 5,6

Morrison v. Olsen, 487 U.S. 654 (1988) ....................00. 6

Myers v. United States, 272 U.S. 52 (1926) .......... 14,17

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)....1, 9, 16

Ohio v. United States Army Corps of Eng’rs, 803

eI SI iccnnniccrnssssnnsenstimebindpannsouseccoeies 30

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

ST iacscsccrinslelapstsidsoeinnepasiibtiasdnenanatiielteidiidiiadibebiiieiiliniiatentoes 17

Pottawattamie Cty. v. McGhee, 558 U.S. 1103

cites dclesinstintniessnisieenieitiahinetesidinnidiaieiaialitainbidninaihdainnennenien 23

Pub. Citizen v. United States Dep’t of Justice, 491

| _ E T ee eee ere 16

Rapanos v. United States, 547 U.S. 715 (2006).......... 30

Vv

TABLE OF AUTHORITIES — Continued

Page

Util. Air Regulation Grp., 134 S.Ct. 2427

TTI iscsi ie iaceaethiarseiieleiaiaemendaiiashaliadiiasiianteatiab talaga 1, 30

Yates v. United States, 135 S. Ct. 1074 (2015) ........... 23

Youngstown Sheet & Tube Co. v. Sawyer (Steel

Seizure Case), 343 U.S. 579 (1952) ........... 6, 9, 13, 17

CONSTITUTIONAL PROVISIONS

ee ee, St Ce rs cc coneccnensoenseusonsnie passim

a I INTE Ts ccsnisnccnsetinnnncnsciannnnbesoiasene 14

U.S. Const. art. I, §3, cl. 1, amended by US.

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STATUTES

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ER TI Re RT en EN ESE 25

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ee II deensincctestcnsencisnnincsosceneenesdt passim

vi

TABLE OF AUTHORITIES ~— Continued

Page

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RULES

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OTHER AUTHORITIES

About the Office of the Administrator, U.S. Envi-

ronmental Protection Agency, https://www.epa.

gov/aboutepa/about-office-administrator (last

visited Sept. 20, 2016) .0.............ccccceeeeeceseeeseeeeeeeeseeee BO

Anne Joseph O’Connell, Vacant Offices: Delays

in Staffing Top Agency Positions, 82 S. Cal. L.

TINT iccochisavcainctdatsondbcieenisddessineszeentonss 15

Vil

TABLE OF AUTHORITIES — Continued

Page

Carol Galante Biography, UC Berkeley Faculty Di-

rectory, http://ced.berkeley.edu/ced/faculty-staff/

carol-galante (last visited Sept. 20, 2016)............... 28

Congress.gov Nominations, https:/Awww.congress.

gov/nomination/1 10th-congress/2205?q=%7B%22

search%22%3A %5B%22Matthew + Friedrich %3A

%22%5D%7D&resultIndex=1 (last visited

EE Era 23

Congress.gov Nominations, https:/Awww.congress.

gov/nomination/1 12th-congress/86?q=%7B%22

search%22%3A %5B%22Lafe+Solomon%22%5D

%7Dé&resultIndex=2 (last visited Sept. 20,

SN RECA eS LR BONERS: Oe Se 18

Congress.gov Nominations, https://Awww.congress.

gov/nomination/112th-congress/1064?q=%7B

%22search%22%3A %5B%22Carol+J.+Galante

%22%5D%7D&resultIndex=1 (last visited

EEE RE a 28

Congress.gov Nominations, https://www.congress.

gov/nomination/113th-congress/506?q=%7B

%22search%22%3A%5B%22Lafe+Solomon

%22%5D%7D&resultIndex=1 (last visited

a iicaiinicnntaniccninientedicmetnensnins 19, 21

Del Quentin Wilbur, Judge Orders Probe of At-

torneys in Stevens Case, Washington Post,

April 8, 2009, http:/Awww.washingtonpost.com/

wp-dyn/content/article/2009/04/07/AR20090407

00338. html 22

Vili

TABLE OF AUTHORITIES — Continued

Del Quentin Wilber, Stevens Found Guilty on 7

Counts, Washington Post, Oct. 28, 2008, http://

www. washingtonpost.com/wp-dyn/content/

article/2008/10/27/AR2008 102700289. htm! ......

Erin Fuchs, The Tragic Story Of A Lawyer Who

Killed Himself After A Botched Prosecution,

Business Insider, May 19, 2014, http://www.

businessinsider.com/sidney-powell-on-nicholas-

marsh-and-ted-stevens-2014-5 ..............0..c0.00000

Federal Employers, United States Department

of Labor, https:/Avwww.dol.gov/odep/topica/federal

employment.htm (last visited Sept. 20, 2016) ..

Joe Light, Top Obama Housing Official Carol

Galante to Step Down, The Wall Street Journal,

Aug. 11, 2014, http://www.wsj.com/articles/

SB10001424052702304526204579 101142224

Justice for Ted Stevens, The Wall Street Journal,

Feb. 20, 2009, http?/Awww.wsj.com/articles/SB123

IIE siintcsencenexsscneciosinasensennnnagetaversece

Lin-Manuel Miranda: Hamilton: Original Broad-

way Cast Recording (Atlantic Records 2015)....

Madison Debates September 15, The Avalon

Project: Documents in Law, History and Diplo-

macy, Yale Law School Lillian Goldman Law

Library, http-//avalon.law.yale.edu/18th_century/

debates_915.asp (last visited Sept. 20, 2016) ...

ix

TABLE OF AUTHORITIES — Continued

Page

Nick Timiraos, FHA Will Require $1.7 Billion

From Treasury, The Wall Street Journal, Sept.

27, 2013, http:/Avww.wsj.com/articles/SB 1000

1424052702304526204579101142224548428........ 28

NPR, Report: Prosecutors Hid Evidence In Ted

Stevens Case, March 15, 2012, http://www.npr.

org/2012/03/15/1486877 17/report-prosecutors-

hid-evidence-in-ted-stevens-Case................0.0eess00es 22

Organization, Mission & Functions Manual: At-

torney General, Deputy and Associate, https://

www. justice.gov/jmd/organization-mission-and-

functions-manual-attorney-general (last vis-

ii ciatanscicabentionssinazcnceses 20

Paul Kane, Sen. Ted Stevens Loses Reelection

Bid, Washington Post, Nov. 19, 2008, http://www.

washingtonpost.com/wp-dyn/content/article/

2008/1 1/18/AR2008111803227.html....................... 23

Reorganization Plan No. 3 of 1970, 84 Stat. 2086-

89, https:/Awww.gpo.gov/fdsys/pkg/STATUTE-

84/pdf/STATUTE-84-Pg2086. pdf (last visited

TT AE TC 30

The Federalist No. 45 (James Madison) (Clinton

a ccsenidonasaipeoovone 10

The Federalist No. 47 (James Madison) (Clinton

ETN SES TR ARTI 2,5,6

The Federalist No. 67 (Alexander Hamilton)

(Clinton Rossiter ed., 1999) ...............ccccccccceesecceeeeeees 7

The Federalist No. 72 (Alexander Hamilton)

(Clinton Rossiter ed., 1999) .................cccccccceceeseeeees 14

x

TABLE OF AUTHORITIES — Continued

The Federalist No. 76 (Alexander Hamilton)

Is SI cemseneiiaibenesenecenees 9

The Federalist No. 77 (Alexander Hamilton)

(Clinton Rossiter ed., 1999) ...............cccccccccceeeeeeeeeeess i)

1

INTEREST OF AMICUS CURIAE'

Southeastern Legal Foundation (SLF), founded in

1976, is a national non-profit, public interest law firm

and policy center that advocates constitutional indi-

vidual liberties, limited government, and free enter-

prise in the courts of law and public opinion. SLF

drafts legislative models, educates the public on key

policy issues, regularly files amicus curiae briefs with

this Court in cases such as NLRB v. Noel Canning, 134

S. Ct. 2550 (2014), and litigates regularly before the

Supreme Court, including such cases as Utility Air

Regulation Group, et al. v. EPA, 134 S. Ct. 2427 (2014).

SLF’s direct interest in this case stems from its

profound commitment to protecting America’s legal

heritage. That heritage includes the separation of pow-

ers enshrined in the Constitution, which is a vital com-

ponent of the Nation’s laws and a critical safeguard of

political liberty. This case concerns a separation of

powers violation by the President and thus implicates

one of SLF’s core concerns.

¢

' All parties have consented to the filing of this brief by blan-

ket or individual letter. See Sup. Ct. R. 37.3(a). No counsel for a

party has authored this brief in whole or in part, and no person

other than amicus curiae, its members, and its counsel has made

monetary contribution to the preparation or submission of this

brief. See Sup. Ct. R. 37.6.

2

SUMMARY OF ARGUMENT

The vast expanse of the administrative state is an

undeniable reality of modern American life. “The ad-

ministrative state wields vast power and touches al-

most every aspect of daily life.” City of Arlington v.

FCC, 133 S. Ct. 1863, 1878 (2013) (Roberts, C.J., dis-

senting) (quoting Free Enter. Fund v. Pub. Co. Account-

ing Oversight Bd., 130 S. Ct. 3138 (2010)). It is no

secret that “as a practical matter [agencies] exercise

legislative power, by promulgating regulations with

the force of law; executive power, by policing compli-

ance with those regulations; and judicial power, by ad-

judicating enforcement actions and imposing sanctions

on those found to have violated their rules.” Id. at

1877-78.

It is this very concentration of power that drew the

ire and deep concern of the Founders, because “[t}he

accumulation of all powers, legislative, executive, and

judiciary, in the same hands .. may justly be pro-

nounced the very definition of tyranny.” The Federalist

No. 47, at 298 (James Madison) (Clinton Rossiter ed.,

1999). “The leading Framers of our Constitution

viewed the principle of separat of powers as the cen-

tral guarantee of a just government.” Freytag v.

Comm’r, 501 U.S. 868, 870 (1991).

Accordingly, the Framers put masterfully crafted

safeguards in place to allow each branch to jealously

guard its duties and prerogatives. One such power that

was the subject of great concern during the Constitu-

tional Convention of 1787 was the appointment power.

3

Some Delegates favored vesting the power in the Pres-

ident; others favored Congress. So opposed were these

parties that the matter, even after lengthy debate,

went unresolved for months. Madison Debates Sep-

tember 15, The Avalon Project: Documents in Law, His-

tory and Diplomacy, Yale Law School Lillian Goldman

Law Library, http://avalon.law.yale.edu/18th_century/

debates_915.asp (last visited Sept. 20, 2016). The con-

troversy was not resolved until the Convention’s end

when the Framers devised a compromise: they vested

the appointment power for principal federal officers in

the President and Senate jointly, and they allowed

Congress alone the power to decide how inferior offic-

ers are appointed. Jd.

In the instant case, it is the reason for those

boundaries that is implicated. “The Framers under-

stood, however, that by limiting the appointment

power, they could ensure that those who wielded it

were accountable to political force and the will of the

people.” Freytag, 501 U.S at 884 (emphasis added). In

the modern era, it is the Federal Vacancies Reform Act

(FVRA), 5 U.S.C. § 3345, et seq., that has preserved the

Senate’s role through clear and articulable standards

for when the chamber needs to approve of the person

serving as an acting appointee. But the past three

presidents have, regardless of whether by manipula-

tive intent or mere ignorance, circumnavigated the re-

quirements of the statute. Pet. Br. at 13.

Those individuals who have served and are cur-

rently serving in violation of the FVRA were and are

acting in positions of great authority with massive

4

amounts of power, but with no accountability to the

legislative branch. Acting officials previously and cur-

rently serving in violation of the FVRA exercise vast

civil and criminal prosecutorial discretion, wield great

power over large sectors of the U.S. economy and trade,

implement the Executive’s domestic policy agenda,

regulate energy and the environment, and even control

decision-making power in foreign policy and national

security.

These positions and appointments are not mere

cogs in the administrative machine. On the contrary,

and by the government’s own admission, Pet. Br. at 16,

these are extremely high-ranking positions, often

times the second in command for executive agencies,

branches of the military, and entire cabinet depart-

ments. The individuals in these positions have power

over and are responsible for a huge amount of the ad-

ministrative arm’s actual, day-to-day operation. The

fact that they serve without any check on their author-

ity goes against not only the Framers’ intent, but also

runs counter to the modern statute enacted to preserve

that inter’

5

ARGUMENT

I. Preserving the separation of powers through

our system of checks and balances is a con-

stitutional necessity.

Preservation of the separation of powers was a

foremost goal of the Framers in crafting the Consti-

tution. As James Madison clearly articulated, “the

preservation of liberty requires that the three great de-

partments of power snould be separate and distinct.”

The Federalist No. 47, at 297 (James Madison) (Clinton

Rossiter ed., 1999). And the Framers should know -

they crafted a system clearly and intentionally con-

trary to that of the British government; its system op-

erates to this day by the fusion of powers. See, e.g., id.

at 299 (describing the British Constitution, where the

three branches “are by no means totally separate and

distinct from each other”).

The American system is one of checks and bal-

ances. As opposed to a system in which the branches

would be entirely isolated, the Framers opted for a sys-

tem that does allow for a necessary degree of flexibility.

See Mistretta v. United States, 488 U.S. 361, 380 (1989)

(“[T]he Framers did not require — and indeed rejected

— the notion that the three Branches must be entirely

separate and distinct.”). In articulating his approach,

Madison clarified that it did not conflict with Montes-

quieu, whose tenets underscored major components of

the Constitution. Madison explained:

[Montesquieu] did not mean that these de-

partments ought to have no partial agency in,

6

or no control over, the acts of each other. His

meaning . . .can amount to no more than this,

that where the whole power of one depart-

ment is exercised by the same hands which

possess the whole power of another depart-

ment, the fundamental principles of a free

constitution are subverted.

The Federalist No. 47, at 299. The boundaries on this

flexibility, however, are undeniable. “In adopting this

flexible understanding .. we simply have recognized

Madison’s teaching that the greatest security against

tyranny — the accumulation of excessive authority in a

single Branch -— lies not in a hermetic division among

the Branches, but in a carefully crafted system of

checked and balanced power within each Branch.” Mis-

tretta, 488 U.S. at 381. See also Youngstown Sheet &

Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579,

635 (1952) (Jackson, J., concurring) (articulating that

“(the Constitution] enjoins upon its branches separate-

ness but interdependence, autonomy but reciprocity”).

Stated succinctly: “[T]he Constitution diffuses power

the better to secure liberty.” Morrison v. Olsen, 487 U.S.

654, 694 (1988) (internal quotations omitted).

A. The Senate’s advice and consent of ex-

ecutive appointments is a critical com-

ponent of separation of powers.

One such check on the accumulation of excessive

authority in either the Executive or the Legislature is

the Appointments Clause. Article II, Section 2, Clause

2 of the Constitution provides that the President “shall

7

nominate, and by and with the Advice and Consent of

the Senate, shall appoint Ambassadors, other public

Ministers and Consuls, Judges of the supreme Court,

and all other Officers of the United States.” U.S. Const.

art. II, § 2, cl. 2. See also The Federalist No. 67, at 408

(Alexander Hamilton) (Clinton Rossiter ed., 1999) (ex-

plaining that the only exception to this duality is the

President’s recess appointment power, Hamilton noted

that “[t]he ordinary power of appointment is confined

to the President and Senate jointly. . .”).

Indeed, the Framers knew this to be a power rife

with the ability for overreach and corruption. “The ma-

nipulation of official appointments had long been one

of the American revolutionary generation’s greatest

grievances against executive power, because the power

of appointment to offices was deemed the most insidi-

ous and powerful weapon of eighteenth century des-

potism.” Freytag, 501 U.S. at 883 (internal quotations

and citation omitted). The record from the Constitu-

tional Convention of 1787 “indicates the Framers’ de-

termination to limit the distribution of the power of

appointment.” Jd. at 884. Therefore,

The roots of the separation-of-powers concept

embedded in the Appointments Clause are

structural and political. Our separation-of-

powers jurisprudence generally focuses on the

danger of one branch’s aggrandizing its power

at the expense of another branch. The Ap-

pointments Clause not only guards against

this encroachment but also preserves another

8

aspect of the Constitution’s structural integ-

rity by preventing the diffusion of the appoint-

ment power.

Id. at 878 (internal citation omitted).

The separation of powers enshrined in the Consti-

tution’s treatment of federal appointments — through

the checks and balances provided by the Senate’s ad-

vice and consent power - is an integral part of that

safeguard. As this Court has explained, “the Appoint-

ments Clause of Article II is more than a matter of

‘etiquette or protocol’; it is among the significant struc-

tural safeguards of the constitutional scheme.” Ed-

mond v. United States, 520 U.S. 651, 659 (1997)

(quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976)).

The Senate’s role in confirming nominees through

its advice and consent “serves both to curb executive

abuses of the appointment power, and to promote a ju-

dicious choice of [persons] for filling the offices of the

union.” Jd. (citations and quotations omitted). Indeed,

this Court as recently as 2014 has recognized the im-

portance of this role of the appointment power.

The Federalist Papers make clear that the

Founders intended this method of appoint-

ment, requiring Senate approval, to be the

norm [T]he need to secure Senate ap-

proval provides “an excellent check upon a

spirit of favoritism in the President, and

would tend greatly to preventing the appoint-

ment of unfit characters from State prejudice,

9

from family connection, from personal attach-

ment, or from a view to popularity.”

NLBB v. Noel Canning, 134 S. Ct. 2550, 2558-59 (2014)

(quoting The Federalist No. 76, at 513 (Alexander

Hamilton) (Jacob Cooke ed., 1961)). In other words, one

purpose of the Senate’s role in confirmation is to curb

the President’s bias, whether subconscious or inten-

tional and for whatever reason it might exist, in staff-

ing his cabinet, agencies, federal courts, and the like.

Over 60 years ago, in the Steel Seizure Case, Members

of the Court warned that the “accretion of dangerous

power” is spawned by “unchecked disregard of the re-

strictions that fence in even the most disinterested as-

sertion of authority.” Steel Seizure Case, 343 U.S. at 594

(Frankfurter, J., concurring).

The reasoning behind this logical check on the ap-

pointment power makes perfect sense. As Hamilton ex-

plained:

The blame of a bad nomination would fall

upon the President singly and absolutely. The

censure of rejecting a good one would lie en-

tirely at the door of the Senate, aggravated by

the consideration of their having counteracted

the good intentions of the executive. If an ill

appointment should be made, the executive,

for nominating, and the Senate, for approving,

would participate, though in different de-

grees, in the opprobrium and disgrace.

The Federalist No. 77, at 459-60 (Alexander Hamilton)

(Clinton Rossiter ed., 1999). It is this accountability to,

10

ultimately, the democratic process’ that underlies the

intent of the balance of power, and this integral safe-

guard must be guarded closely so that it shall indeed

continue to outlive Hamilton in the present day.’

In the modern era, this check is more relevant

than ever before. “(T]he authority administrative

agencies now hold over our economic, social, and polit-

ical activities,” City of Arlington, 133 S. Ct. at 1878,

stands in stark contrast to the government of enumer-

ated powers the Framers envisioned. Our Founding

Fathers sought to create a government structure lim-

ited in nature — as James Madison explained in an

effort to ease concerns that the proposed national gov-

ernment would usurp the People’s power to govern

themselves: “The powers delegated by the proposed

Constitution to the federal government are few and

defined. ... [and] will be exercised principally on ex-

ternal objects, as war, peace, negotiation, and foreign

commerce ....” The Federalist No. 45, at 289 (James

Madison) (Clinton Rossiter ed., 1999). Today’s wide-

reaching “‘administrative state with its reams of reg-

ulations would leave [the Founders] rubbing their

eyes.” City of Arlington, 133 S. Ct. at 1878 (quoting

? Before the passage of the Seventeenth Amendment allow-

ing the direct election of senators, however, the original Hamilto-

nian accountability directly to the voter would have been more

attenuated. U.S. Const. art. I, § 3, cl. 1, amended by U.S. Const.

amend. XVII.

° “God help me and forgive me, I wanna build something

that’s gonna outlive me.” Lin-Manuel Miranda: Hamilton: Origi-

nal Broadway Cast Recording (Atlantic Records 2015).

11

Alden v. Maine, 527 U.S. 706, 807 (1999) (Souter, J., dis-

senting)). As time marches on, the administrative state

becomes larger yet. “[I]n the last 15 years, Congress

has launched more than 50 new agencies. And more

are on the way.” Id. (citation omitted). “It would be a

bit much to describe the result as the very definition of

tyranny, but the danger posed by the growing power of

the administrative state cannot be dismissed.” Jd. at

1879 (internal citation omitted).

Though the growth of the administrative state in

and of itself may not exactly be “the very definition of

tyranny,” the lack of accountability of those who staff

some of its most prominent positions surely warrants

use of the term. Truly, “[lJiberty is always at stake

when one or more of the branches seek to transgress

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

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

id. at 447 (opinion for the Court) (striking down the

line-item veto as unconstitutional because it “gives the

President the unilateral power to change the text of

duly enacted statutes”). The growth of government

coupled with the lack of accountability for those who

run it creates a clear and present danger to the consti-

tutional structure and the liberty it guarantees.

12

B. The Appointments Clause does not ex-

ist to serve the Executive's sole interest

or convenience.

One crux of the government’s argument is that

their favored construction of the FVRA should be ap-

proved because “[e]very President since the FVRA’s

enactment has made nominations of persons serving

in an acting capacity . . . in accordance with that con-

struction.” Pet. Br. at 15. See also Pet. at 26 (“The court

of appeals’ decision is_.. contrary to settled .. . prac-

tice. .. .”). In other words, the government would have

this Court believe that just because everybody’s doing

it, it must be not only okay, but constitutional. The gov-

ernment also asks this Court to decide in favor of its

convoluted interpretation based on what would hap-

pen at “a practical level” if additional agency actions

were to be called into question. Pet. at 27.

Language again in Freytag speaks to this very sit-

uation: “Because it articulates a limiting principle, the

Appointments Clause does not always serve the Exec-

utive’s interest.” 501 U.S. at 880. Simply because the

Executive has been acting for its purported conven-

ience — and simply because vacancy statutes to and

through the present day allow for some exercise of the

appointment power temporarily in recognizing the

need to keep the government running when individu-

als step down or cannot serve — does not mean that it

13

meets the requirements of the FVRA or the Appoint-

ments Clause in doing so.‘ The government fears a

“significant impediment to the ability of any President

. to temporarily fill important posts in the Executive

Branch with the persons whom the President deems

most qualified to fill them permanently.” Pet. at 11 (em-

phasis added). See also Buckley, 424 U.S. at 121 (“The

Senate is a participant in the appointive process by

virtue of its authority to refuse to confirm persons

nominated to office by the President.”). But this deter-

mination is not for the President to say — it is the Sen-

ate who has the final word, and the Senate indeed was

intended to pose such an impediment for the President

in determining who should permanently serve.

The government’s attitude flies in the face of the

proper vision of the role of the Executive. For example,

in striking down the President’s executive order direct-

ing the Secretary of Commerce to seize major steel

mills to prevent a labor shutdown during the Korean

War, the Court invoked the most apropos first princi-

ples: “In the framework of our Constitution, the Presi-

dent’s power to see that the laws are faithfully

executed refutes the idea that he is to be a lawmaker.”

Steel Seizure Case, 343 U.S. at 587. See Clinton, 524

U.S. at 449 (Kennedy, J., concurring) (“The Constitu-

tion’s structure requires a stability which transcends

* In fact, “[llegislative action may indeed often be cumber-

some, time-consuming, and apparently inefficient(,]” Steel Seizure

Case, 343 U.S. at 629 (Douglas, J., concurring), but the Framers of

the Constitution intended as much. Such inconveniences do not

warrant policies that subvert the separation of powers.

14

the convenience of the moment.”). This hearkens back

to that same pesky, original concern of the concentra-

tion of more than one type of power in the same hands.

When the President appoints those who execute legis-

lative fur-tions through regulations without a check

from the legislative branch itself, the result is what

Madison, Montesquieu, and this Court warned of: tyr-

anny.

Likewise, some would interpret Hamilton’s legacy

in advocating for and securing a singular, energetic ex-

ecutive as cause for somehow eschewing the role that

the Senate is meant to play in advice and consent.° It

is well settled and uncontested that “assistants or dep-

uties of the Chief Magistrate” certainly “derive their

offices from his appointment, at least from his nomina-

tion....” The Federalist No. 72, at 434 (Alexander

Hamilton) (Clinton Rossiter ed., 1999). See also Myers

v. United States, 272 U.S. 52, 117 (1926) (“[Tlhe Presi-

dent alone and unaided could not execute the laws. He

must execute them by the assistance of subordi-

nates.”). Yet this underlying truth behind the daily

functions of the administrative state does not excuse a

violation of separation of powers when Congress, in en-

acting the FVRA, allowed multiple options for filling

vacancies. The Executive will not be hamstrung if

the FVRA is interpreted by its plain language. The

only “deleterious consequences for policymaking. .”

* See generally Br. of Amicus Curiae Constitutional Account-

ability Center.

* Other Amici also imply that the intent behind the Recess

Appointments clause, U.S. Const. art. II, § 2, cl. 3, which, as this

15

Anne Joseph O’Connell, Vacant Offices: Delays in

Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913,

937 (2009), are those agency actions such as the in-

stant case where the Executive, by its own fault for

failing to follow the requirements set out in the FVRA,

may potentially be held invalid. These are conse-

quences of the Executive’s own making, not of the Stat-

ute’s, and cementing the proper statutory

interpretation will ensure that any upheaval does not

happen in the future, as it has in this case because of

the Executive’s faulty interpretation.

Lastly, any attempt to justify the flawed interpre-

tation of the FVRA simply because the Senate has ac-

quiesced to the Executive’s misunderstanding and

misuse should be disregarded. See Pet. Br. at 13-14 (in-

ternal citation omitted) (“There have been more than

100 such nominees in the 18-year history of the FVRA

... [aJnd nominees serving on the basis of the Execu-

tive’s longstanding interpretation have been routinely

confirmed by the Senate.”). Of course, as this Court is

well aware, “[s]ince the separation of powers exists for

the protection of individual liberty, its vitality ‘does not

Court knows, allows the President to fill positions while the Sen-

ate is in recess, is proper support for the government's inter-

pretation of the FVRA. See Br. of Amicus Curiae Constitutional

Accountability Center at 9. But unlike recess appointments,

where without the so-named clause the President would lack sub-

stantial power, the FVRA gives multiple avenues for the Presi-

dent to staff positions when vacancies arise. The circuit court's

proper interpretation of the Statute leaves the President with

multiple, ample options, and his ability in staffing executive

branch positions is not “undermined.” Jd. at 10.

16

depend’ on ‘whether the encroached-upon branch ap-

proves the encroachment.’” Noel Canning, 134 S. Ct. at

2593 (Scalia, J., concurring) (quoting Free Enter. Fund,

130 S. Ct. at 3155). If this were not the case, any

longstanding constitutional principle could be worn

away in one term of Congress. Surely this is also tyr-

anny by another name.

C. To preserve the separation of powers

principles provided by the Appoint-

ments Clause, this Court should affirm

the lower court’s decision.

The above discussion demonstrates the critical im-

portance of this Court’s role in preserving and in this

case restoring the careful balance of powers among

and between the branches. “[A]s to the particular divi-

sions of power that the Constitution does in fact draw,

we are without authority to alter them, and indeed we

are empowered to act in particular cases to prevent

any other Branch from undertaking to alter them.”

Pub. Citizen v. United States Dep’t of Justice, 491 U.S.

440, 487 (1989). See Noel Canning, 134 S. Ct. at 2593

(Scalia, J., concurring) (noting that “policing the ‘en-

during structure’ of constitutional government when

the political branches fail to do so is ‘one of the most

vital functions of this Court’”) (quoting Pub. Citizen,

491 US. at 468 (Kennedy, J., concurring in the judg-

ment)). Such an alteration is what the Executive has

done affirmatively in this case,’ but the Senate, too, in

” See Freytag, 501 U.S. at 879-80 (rejecting the argument that

the Court should defer to the Executive's view that there has been

17

failing to act also passively undermined this division

of power. Indeed, Amicus asks this Court to decide this

pivotal separation of powers case in light of its im-

portance to our constitutional structure and the

preservation of liberty.

In keeping with this Court’s direction for “high

walls and clear distinctions” to preserve the separation

of powers, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

239 (1995), Congress enacted the FVRA, which sets

forth easily applied, bright-line rules. The purpose of

the separation of powers is “not to avoid friction, but,

by means of the inevitable friction incident to the dis-

tribution of the governmental powers among three de-

partments, to save the people from autocracy.” Steel

Seizure Case, 343 U.S. at 613-14 (quoting Myers, 272

USS. at 240, 293). As Justice Jackson stressed, any pres-

idential claim to power “at once so conclusive and pre-

clusive must be scrutinized with caution, for what is at

stake is the equilibrium established by our constitu-

tional system.” Jd. at 638 (Jackson, J., concurring). It is

in this scrutiny that this Court is well suited and hand-

ily equipped to exercise its most essential calling. Pre-

serving the separation of powers is the ultimate role of

this Cour,

no encroachment of the separation of powers in an Appointments

Clause challenge).

18

Il. Appointees serving in violation of the FVRA

have access to shocking amounts of power

and control with no check on uses of that

power.

The individuals listed in the government’s de-

tailed table, Pet. Br. App. A, have access to and exercise

far-reaching powers over not only the operation of the

federal government, but also the military, foreign pol-

icy, and even entire sectors of the economy. Their ap-

pointments to these posts in violation of the FVRA are

not symptoms of only one political party or agenda;

Presidents Clinton, Bush, and Obama have all kept ap-

pointees in their posts after they became ineligible to

serve upon their nomination. See generally Pet. Br.

App. A.

The FVRA goes one step beyond the constitutional!

baseline of the Senate’s advice and consent role be-

cause it accounts for the danger of allowing a political

appointee te become the perpetual nominee, con-

tinuing to serve during the often lengthy nomination

process (and after it even though the Senate has ex-

pressed its disapproval of the nominee with a return of

the nomination to the President). In fact, in the instant

case, the President was so bold as to nominate the

same individual not once," but twice, and then keep

“Cc Neminations | P a

112th-congreas/86?q=%7B% 22search %22%3A %5B%22Lafe+Solomon

%22%5D*7D&resultIndex=2 (last visited Sept. 20, 2016).

19

that individual in place despite the fact that the Sen-

ate rejected the nomination on both occasions.’ The

continued service of any appointee in this situation

completely nullifies the Senate’s clearly articulated

role in the confirmation of appointees through advice

and consent.

Though the instant case may present one of the

most egregious examples, its value goes beyond dem-

onstrating the particular harms to Respondent in this

case. It serves to bring attention to other, similarly sit-

uated current and previous acting appointees and the

amounts of power and discretion they have previously

controlled and currently control.

A. Appointees who have served and are

serving in violation of the FVRA exer-

cise prosecutorial discretion.

The Attorney General is the chief prosecutor of the

United States Government. 28 U.S.C. § 503. In that

role, the Attorney General not only brings criminal and

civil claims against those who have violated federal

law, but also advises the President, 28 U.S.C. § 511, ad-

vises the heads of executive departments, 28 U.S.C.

§ 512, and advises secretaries of the different branches

of the military. 28 U.S.C. § 513.

* In the second instance, the President withdrew the nomi-

nation after months of inaction by the Senate. See Congress.gov

Nominations, https//www.congress.gov/nomination/1 13th-congress/

506?q=%7B%22search %22%3A %5B%22Lafe+Solomon%22%5D%7

D&resultIindex=1 (last visited Sept. 20, 2016).

20

The Attorney General serves with the advice and

consent of the Senate. Thankfully, no Attorney Genera!

has served in violation of the FVRA. However, since

1998, twenty-one high-ranking prosecutors in the De-

partment of Justice have served or are currently serv-

ing in violation of the FVRA. See generally Pet. Br. App.

A. These appointees include eleven Assistant Attor-

neys General, three Associate Attorneys General, and

three Deputy Attorneys General, along with other di-

rectors of various departments of the Justice Depart-

ment. Id.

The fact that Deputy Attorneys General have

served and currently serve in violation of the FVRA is

especially troubling. This position is the second-in-

command to the Attorney General." In fact, in the day-

to-day operations of the Department of Justice, the

Deputy Attorney General steers many important deci-

sions and influences the Attorney General. Some of the

duties of the Deputy include but are not limited to the

following: authorize searches and electronic surveil-

lance, review and recommend on whether the Attorney

General should seek the death penalty in appropriate

cases, recommend pardons and commutations to the

White House, and exercise all powers granted to the At-

torney General unless explicitly stated that the power is

to be reserved to the Attorney General solely. Organi-

zation, Mission & Functions Manual, supra note 10.

° Organization, Mission & Functions Manual: Attorney Gen-

eral, Pa. cae y mere ere ee ma

mission-and-functions-manual-attorney-general (last visited Sept.

20, 2016).

21

Therefore, the Deputy Attorney General has a vast

amount of prosecutorial discretion, and controls the

fate of whether some individuals will live or die. It is

no wonder that this position, when established, called

for the advice and consent of the Senate in confirming

the individual who would serve. 28 U.S.C. § 504. Re-

gardless of choices made by individuals serving in vio-

lation of the FVRA, simply the access to such power

and potential for abuse is damning enough. It is the job

of the law to ask, “what if?” Regarding prosecutors,

“what if” means that the lives of defendants hang in

the balance. When appointees serve in a manner that

side-steps the system of checks and balances, there is

no political accountability to either the Executive or

the Legislature. As demonstrated by the instant case,

even though the Senate twice rejected Mr. Solomon's

nomination,'' the President allowed Mr. Solomon to re-

main at his post; the government now claims a skewed

interpretation of the FVRA to support that action.

What more was the Senate to do? Surely they cannot

be held politically accountable, but the President seeks

to eschew accountability as well. It is clear that the re-

sponsibilities, though extensive, of Mr. Solomon pale in

comparison to those of a Deputy Attorney General, who

has the power to recommend (if not decide) whether

individuals should live or die. The potential for abuse

is grave, and this Court should act to protect the bal-

ance of power.

%22%5D%7 D&resultIndex=1 (last visited Sept. 20, 2016).

22

Even those in posts junior to the Deputy Attorney

General bear immense amounts of prosecutorial dis-

cretion. The case of one Assistant Attorney General is

especially insightful. In 2008, Matthew Friedrich was

appointed acting Assistant Attorney General for the

criminal division. Pet. Br. App. A at 54a. Under Frie-

drich’s tenure and leadership, Senator Ted Stevens

was prosecuted for felony ethics charges and con-

victed.'* However, in what has been referred to as a

“shocking and disturbing” case of prosecutorial mis-

conduct,"* the Senator was acquitted after it was dis-

covered that the attorneys directly under Friedrich,

one of whom was specifically placed on the case by him,

worked with witnesses whom the attorneys knew fal-

sified testimony. Wilbur, supra note 13. Friedrich was

deeply involved with the trial.'* See generally In re Spe-

cial Proceedings, 842 F. Supp. 2d 232 (D.D.C. 2012).

Critics have claimed he bore a great deal of responsi-

bility in the proceedings."*

'? Del Quentin Wilber, Stevens Found Guilty on 7 Counts,

Washington Post, Oct. 28, 2008, http://www. washingtonpost.com/

wp-dyn/content/article/2008/ 10/27/AR2008 102700289. html.

'S Del Quentin Wilbur, Judge Orders Probe of Attorneys in

Stevens Case, Washington Post, April 8, 2009, http//www.washingtonpost.

com/wp-dyn/content/article/2009/04/07/AR2009040700338.htm!.

'* Justice for Ted Stevens, The Wall Street Journal, Feb. 20,

2009, http://www.wsj.com/articles/SB 123509358392428915; NPR,

Report: Prosecutors Hid Evidence In Ted Stevens Case, March 15,

2012, http//www.npr.org/2012/03/15/1486877 1 7/report-prosecutors-

hid-evidence-in-ted-stevens-case.

'* Erin Fuchs, The Tragic Story Of A Lawyer Who Killed Him-

self After A Botched Prosecution, Business Insider, May 19, 2014,

http://www. businessinsider.com/sidney-powell-on-nicholas-marsh-

and-ted-stevens-2014-5.

23

Even though Friedrich was never held accounta-

ble, the damage was already done to Senator Stevens,

who lost his reelection bid.'* Is it any wonder, then,

that the Senate refused to confirm Friedrich to his

post?"’ Even if an acting official is not directly respon-

sible for the life or death of an individual, in this case,

Friedrich was responsible for the livelihood and even-

tual disgrace of one of the nation’s longest serving and

most decorated senators. The powers held by attorneys

general at every level in the Department of Justice

cannot be overstated. Especially at a time when “over-

criminalization” and questions regarding the power

granted to prosecutors” are at the forefront of the

criminal justice reform movement, the Senate’s advice

and consent role in approving the nation’s top prosecu-

tors is more critical than ever.

B. Appointees who have served and are

serving in violation of the FVRA are re-

sponsible for national defense and shape

foreign policy.

Since 1998, at least twenty-one high-ranking offi-

cials throughout the military, Department of Defense,

‘© Paul Kane, Sen. Ted Stevens Loses Reelection Bid, Wash-

ington Post, Nov. 19, 2008, http://www.washingtonpost.com/wp-

dyn/content/article/2008/1 1/18/AR2008 1 11803227 htm).

” Congress.gov Nominations, https//www.congress. gov/nomination/

1 10th-congresa/2206?q=%7B%22search %22%3A %5B%22Matthew +

Friedrich %3A%22%5D% 7D&resultindex=1 (last visited Sept. 20, 2016).

8 See generally, e.g., Pottawattamie Cty. v. McGhee, 558 U.S.

1103 (2010) (dismissed pursuant to Sup. Ct. R. 46); Yates v. United

States, 136 S. Ct. 1074 (2016).

24

Department of State, and related sub-agencies and de-

partments have served in violation of the FVRA. See

generally Pet. Br. App. A. Individuals in these positions

not only exercise great amounts of authority over the

protection of our nation, but they also have access to

top secret information.

For instance, the Deputy Director of the Central

Intelligence Agency” assists the Director in carrying

out the duties and responsibilities of that office. 50

U.S.C. § 3037(a). However, the Deputy Director is au-

tomatically selected as the acting Director if for any

reason the Director is unable to serve. 50 U.S.C.

§ 3037(b). Therefore, this second in command post has

immense power. The Director’s powers include: a blan-

ket ability to collect, correlate, evaluate, and dissemi-

nate “intelligence” generally — a blanket grant of

power, 50 U.S.C. § 3036(dX1)-(2); control the United

States’ undercover operations around the world, 50

U.S.C. § 3036(dX3); terminate, at his discretion, any of-

ficer or employee of the CIA, 50 U.S.C. § 3036(e); and

finally, “coordinate the relationships between the

intelligence community and ... foreign governments

or international organizations on all matters involving

intelligence related to the national security or involv-

ing intelligence acquired through clandestine means.”

50 U.S.C. § 3036(f). Clearly, the powers granted to the

Director of the CIA are at least extensive, and the Dep-

uty Director may assist in any of these matters. A per-

son with so much power, especially when exercises of

'® See Pet. Br. App. A at 7a, record of John McLaughlin's ser-

vice as Acting Deputy Director of Central Intelligence.

25

such power are often out of view of the media and the

public, must be carefully selected and insulated from

political whims. Without Senate advice and consent,

this cannot otherwise be ensured.

Another instance of a position with unfettered ac-

cess to highly classified information is that of the In-

spector General of the Department of Defense.” Since

the FVRA was passed, five inspectors general in vari-

ous departments have served in violation of it. See gen-

erally Pet. Br. App. A. The general powers of Inspectors

General do bear mention briefly. Inspectors General

have the power to audit within their own offices, 5

U.S.C. § 4(aX1), as well as the ability to advise on leg-

islation and regulations and department policies gen-

erally. 5 U.S.C. § 4(aX2)-(3). But Inspectors General

also have the power to recommend prosecution to the

Attorney General, 5 U.S.C. § 4(d), in what could be

called diluted prosecutorial discretion, and in gather-

ing the information needed to make such a recommen-

dation, have almost unfettered power to investigate. 5

U.S.C. § 6(a).

This great power is an excellent tool when an In-

spector General can be a check on the department or

administrative agency in question, and when the In-

spector General has an appropriate check placed on

her; that is, the confirmation process required by the

statute. 5 U.S.C. §3. However, when the Inspector

General is unchecked, she has the power to upend the

* See Pet. Br. App. A at 56a, record of Gordon S. Heddell’s

service as Acting Inspector General, Department of Defense.

26

entire office under her inspection by: unfettered access

to all “material available to the applicable establish-

ment... .”5 U.S.C. § 6(a\1); to make any investigation

deemed by the Inspector General as “necessary or de-

sirable,” 5 U.S.C. § 6(a)(2); and in sum, have the ability

to appoint an entire investigative staff and obtain any

information from any individual in the appropriate de-

partment. 5 U.S.C. § 6(a)(4)-(7).

Arguably the most powerful Inspector General of

all is that of the Department of Defense, if solely be-

cause of the sensitive information to which access is

required to engage in the investigations required of the

office. Congress has in fact recognized this concern,

and accordingly, enacted 5 U.S.C. § 8, which limits the

abilities of the Inspector General of the Department of

Defense. Congress gave the Secretary of Defense the

power to limit the Inspector General's access to any in-

formation of which the disclosure would constitute a

“serious threat to national security.” 5 U.S.C. § 8(b\1).

However, upon further thought, this check is not much

of a safeguard. No Secretary of Defense has served in

violation of the FVRA. However, as is the case with

other departments, Deputy Secretaries have served in

violation of the FVRA. See generally Pet. Br. App. A.

And as is the case with other Deputies, the Deputy Sec-

retary of Defense is second in command to the cabinet

post and exercises duties as proscribed by the Secre-

tary. 10 U.S.C. § 132(b)-(d). Accordingly, an Inspector

General serving in violation of the FVRA may well be

accountable to a Deputy Secretary serving in violation

of the FVRA. The Senate’s important check over an

27

entire cabinet department is substantially minimized,

and the exercise of power is unencumbered when the

FVRA is violated.

C. Appointees who have served and are

serving in violation of the FVRA are re-

sponsible for diverse areas of domestic

policy and exercise control over entire

sectors of the economy.

Individuals who have previously served and are

currently serving in violation of the FVRA implement

the Executive’s agenda in many diverse ways. Not dis-

similar from the examples above, a dozen Deputy Sec-

retaries of entire cabinet departments have served

improperly. They range from the Deputy Secretary of

Energy to the Deputy Secretary of Education to the

Deputy Secretary of Labor to the Deputy Secretary of

Health and Human Services to the Deputy Secretary

of Commerce; the list goes on. See generally Pet. Br.

App. A. Appointees have even included the President

of the Export-Import Bank, the Commissioner of the

Food and Drug Administration, the Administrator of

the National Highway Traffic Safety Administration,

and multiple top-level administrators in the Environ-

mental Protection Agency (EPA). Id.

One seemingly innocuous example of a position

filled improperly under the FVRA is the Assistant Sec-

retary of the Department of Housing and Urban De-

velopment (HUD), Federal Housing Administration

28

(FHA) Commissioner (a singular role).”’ In this posi-

tion, Carol J. Galante “had direct responsibility for

oversight and administration of the FHA’s trillion dol-

lar insurance portfolio, which includes single family

and multifamily housing. .. ” According to the Legis-

lature’s records, she was nominated in October of 2011

and confirmed in December of 2012.” Therefore, she

served for over a year during “the worst financial crisis

since the Great Depression . . . [,]” Carol Galante Biog-

raphy, without any check by the Senate in violation of

the FVRA. In fact, while she was at the helm, the FHA

requested and required financial assistance for the

first time in its 79-year history to the tune of $1.7 bil-

lion taxpayer dollars. Additionally, the FHA “doesn’t

have to ask Congress for money because it has what is

known as ‘permanent and indefinite’ budget authority,

allowing it to tap the Treasury.” Therefore, the singu-

lar power over an entire sector of the economy fell into

2! See Pet. Br. App. A at 62a, record of Carol J. Galante’s ser-

vice as Acting Assistant Secretary of Housing and Urban Devel-

opment (Federal Housing Commissioner).

™ Carol Galante Biography, UC Berkeley Faculty Directory,

http://ced.berkeley.edu/ced/faculty-staff/carol-galante (last visited

Sept. 20, 2016).

ao Nominations. httnest —

112th-congrese/1064?q=%7B%22search%22%3A ®5B%22Carol +J.+

Galante%22%5D%®7D&resultIndex=1 (last visited Sept. 20, 2016).

* Joe Light, Top Obama Housing Official Carol Galante to

Step Down, The Wall Street Journal, Aug. 11, 2014, http://www.

ws).com/articlea/SB 1000 1424062702304526204579 101 142224548428.

* Nick Timiraos, FHA Will Require $1.7 Billion From Treas-

ury, The Wall Street Journal, Sept. 27, 2013, http//www.wsj.

com/articles/SB 1000 1424052702304526204579 101 142224548428.

29

the hands of one individual who served for over a year

with no check from the Senate. The decisionmaking

power and authority exercised by any person in this

position should never be unchecked, especially given

the unrestricted access to Treasury coffers. However,

as the housing market, including federal lending,

stumbled out of the recession on the backs of taxpay-

ers, the person in control was not at all accountable to

the democratic process.

Similarly, one role that seems perfectly routine at

first blush is that of the Director of the Office of Per-

sonnel Management (OPM).*” However, the federal

government is “the Nation’s largest employer,” and

the Director of the OPM is at the helm of the govern-

ment’s human resources department. Pursuant to 5

U.S.C. § 1103(cX2), the Director promulgates regula-

tions to control the hiring and firing throughout the

federal government. Again, serving with no Senate

check in violation of the FVRA, the Director of the

OPM is just one of many examples wherein one person

has control over a vast sector of the economy.

Perhaps the most damning powers exercised, how-

ever, are the powers to regulate. Individuals serving in

violation of the FVRA are often proscribed by statute

the power to craft regulations, and arguably those

* See Pet. Br. App. A at 57a, record of Michael W. Hager’s

service as Acting Director of OPM; see Pet. Br. App. A at 81a, rec-

ord of Beth F. Cobert’s service as Acting Director of OPM.

7’ Federal Employers, United States Department of Labor,

https://www.dol.gov/odep/topicsa/federalemployment.htm (last vis-

ited Sept. 20, 2016).

30

regulations promulgated by the EPA affect the most

Americans every single day. The EPA’s power to regu-

late and enforce its regulations is wide-reaching.” The

Deputy Administrator of the EPA is the second in com-

mand in the agency’s structure.” As this Court is well

aware, the EPA’s regulations are frequently a topic of

litigation in courts around the country, including this

Court. See, e.g., Util. Air Regulation Grp., 134 S. Ct.

2427 (2014) (finding the EPA’s greenhouse gas regula-

tions unconstitutional); Rapanos v. United States, 547

U.S. 715, 725 (2006) (plurality opinion) (rejecting the

EPA’s expansive definition of Waters of the United

States). The constitutionality of many EPA actions are

at best murky, and as the agency debuted its new reg-

ulations surrounding the Waters of the United States

interpretations of the Clean Water Rule, the issues of

unregulated authority are again at the forefront as the

Sixth Circuit stayed enforcement of the new rule. Ohio

v. United States Army Corps of Eng’rs, 803 F.3d 804

(6th Cir. 2015) (ordering a stay of the implementation

of the EPA’s new regulations redefining Waters of the

United States). Not only do these regulations risk run-

ning aground of constitutional authority, but high-level

* See Reorganization Plan No. 3 of 1970, 84 Stat. 2086-89,

https://www.gpo.gov/fdsys/pkg/STATUTE-84/pdf/STATUTE-84-

Pg2086.pdf (last visited Sept. 20, 2016).

See Pet. Br. App. A at 74a, record of Albert Stanley Mei-

burg’s service as Acting Deputy Administrator of the EPA; see gen-

erally About the Office of the Administrator, U.S. Environmental!

Protection Agency, https://www.epa.gov/aboutepa/about-office-

administrator (last visited Sept. 20, 2016).

31

actors promulgating and implementing these regula-

tions serve unconstitutionally as it is. Again, with no

political accountability, the power to regulate and en-

force through judicial actions against U.S. citizens and

residents is a dangerous power, and as the EPA contin-

ues its fight to expand its regulatory sphere through

the promulgation of the new, troubled Clean Water

Rule, the Senate’s check on those individuals ap-

pointed to positions of great power and leadership

within the EPA is more important than ever.

In sum, the doctrine of separation of powers is the

antithesis of serving any one branch’s interest. Power

is easy to accumulate; throughout this Court’s juris-

prudence, it is limiting the accumulation of power that

has proven far more difficult. In the instant case, Con-

gress has already erected clear boundaries in the

FVRA on what the Executive may and may not do; the

statutory language is clear and unambiguous. The lack

of enforcement of those boundaries does not make

them any less existent, valid, or pointedly relevant as

Executive power continues its exponential growth in

the modern administrative state.

*

CONCLUSION

For the reasons stated in the Respondent’s Brief

and this amicus brief, this Court should affirm the

32

decision of the United States Court of Appeals for the

District of Columbia Circuit.

Respectfully submitted,

KIMBERLY S. HERMANN

Counsel of Record

LAURA JEAN BERGER

SOUTHEASTERN LEGAL FOUNDATION

2255 Sewell Mill Road, Suite 320

Marietta, Georgia 30062

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amicus Curiae

September 23, 2016