Amicus Curiae Brief — Kisor v. Wilkie, 139 S. Ct. 657 (2018) (No. 18-15)

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No. 18-15

In the

Supreme Court of the Anited States

JAMES L. KISOR,

Petitioner,

ROBERT L. WILKIE,

Secretary of Veterans Affairs,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

RIDDHI DASGUPTA JOHN C. EASTMAN

13330 Ridgewood Drive ANTHONY T. CASO

Ellicott City, MD 21042 Counsel of Record

(703) 927-1148 Center for Constitutional!

RDasgupta@cantab.net Jurisprudence

c/o Chapman University

Dale E. Fowler School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452

(1997), should be overruled.

TABLE OF CONTENTS

QUESTION PRESENTED........................c.-ceeeeeeeeeeseeees i

Te GE BETTE 0 Sli recccscccescscccccsscnccevsccncosscess iii

INTEREST OF AMICUS CURIAE......0000000.0.........00- 1

SUMMARY OF ARGUMENT? .....000000.........ccccecceeeeeeeeee 1

SET, <itcietnneiasiatinitnisiniainamimnnpiepanenaeinnmanee 3

I. Separation of Powers Is One of the Most

Important Structural Features of the

Constitutional Design to Protect Liberty. .............. 3

Il. Seminole Rock and Auer Deference Violate the

SS 7

Ill_Auer and Seminole Rock May be Overruled

Consistent with Traditional Stare Decisis

RITE Eee SEE Sos Oe a 14

PETTITTE icicicecthnsicittnhcaetsdaliehedanisinnatansiennlaetindieiiniaabiesinainaasin 17

iii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

a eT Re 16

Auer v. Robbins,

I acca passim

Bowles v. Seminole Rock & Sand Co.,

ER ES TSO passim

Buckley v. Valeo,

Se ee nL 7

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

a iio nitsintnntineninntnninaiantd 2, 10, 12, 14

Christensen v. Harris Cty.,

| TL ae 15

Christopher v. SmithKline Beecham,

gg SST 1, 15

Decatur v. Paulding,

I i scelmsliieiinlinesioiiens 15

Decker v. Nw. Envtl. Def. Ctr.,

| EE 4, 14, 17

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

a a nsnnbnanenintononte l

FCC v. MCI Telecommunications Corp.,

a ccetsesinensnneunede 9

Garco Const., Inc. v. Speer,

ae 1,3

Gonzales v. Oregon,

INS v. Chadha,

Re es rcicctccscnnencnceecssecensscnses 6, 7, 16, 17

Janus v. Am. Federation of State, Cty., and Mun.

Employees, Council 31,

Be es BI i cccccccccsccccsconscesscccscoscscssess 14, 15

Kilbourn v. Thompson,

cic ceinneseradmmnnnenniaionentiions 7

Marbury v. Madison,

ce 2, 8,11, 12

Metro Broadcasting, Inc. v. FCC,

ET eT 9

Miller v. Johnson,

I a snc scncnccnmaconensnoneasete 12, 15

Mistretta v. United States,

iisinsstsbredccdncsercesccencsesectnscnmtensiis 7,8

Morrison v. Olson,

EE 5,9

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.

Auto. Ins. Co.,

ETE aE 11

National Cable & Telecommunications Ass’n v.

Brand X Internet Services,

LL ea 10

Pearsu.i v. Callahan,

SE ae ee 14

Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199

Plaut v. Spendthrift Farm, Inc.,

I a cisancetuenint 3, 5, 10, 16

Rodriguez de Quijas v. Shearson/ American Express,

Inc.,

gf Ee ee 15

Springer v. Philippine Islands,

gk | SEES EAR ee Ov nn ee Se ae 8

Talk America, Inc. v. Michigan Bell Tel. Co.,

Fe Bs Ga ci reentsncnctsetenncasscemsnssintatenesintin 4,15

Turtle Island Restoration Network v. United States

Dep't of Commerce,

878 F.3d 725 (9th Cir. 2017) .....................ccccceceeees 14

United States Telecom Ass’n v. FCC,

825 F.3d 674 (D.C. Cir. 2016)................0..00cccccceeee 11

United States v. Klein,

BaP ED Se recercencsessnssncnisncsvsccsidacseenteniiiinbbion 9

United States v. Nixon,

ee ee ee itittcssnccetncctsnctatiasmiassintentindal 8, 12

United Student Aid Funds, Inc. v. Bible,

hy ST iis csinsicstinncrrncseininiclcaindabudeniodoinbiinnss 3

Other Authorities

Adams, John, Letter XLIX, 1 A DEFENSE OF THE

CONSTITUTIONS OF GOVERNMENT OF THE UNITED

STATES OF AMERICA (The Lawbook Exchange Ltd.

BEBOG., BIBE)..2ccccccccoccecssersesonsscssnesensenssssoussetsvensstenen 7

Blackstone, William, COMMENTARIES ON THE LAWS OF

ENGLAND (William S. Hein & Co. ed., 1992).....5, 12

Brutus, Essay XV (1788), reprinted in 2 THE

COMPLETE ANTI-FEDERALIST (Herbert J. Storing

Hamilton, Alexander, Federalist 9, THE FEDERALIST

Jefferson, Thomas, Jefferson to Adams, THE ADAMS-

JEFFERSON LETTERS (Lester J. Cappon ed., 1959)..5

Locke, John, THE SECOND TREATISE ON GOVERNMENT

(Thomas P. Peardon, ed., 1997)................................ 5

Madison James, Federalist 47, THE FEDERALIST

ES 2, 5

Madison, James, Federalist 48, THE FEDERALIST

SE EEE SS SS 6

Madison, James, Federalist 51, THE FEDERALIST

EEE ES 5, 7, 8, 12

Manning, John F., “Constitutional Structure and

Judicial Deference to Agency Interpretations of

Agency Rules,” 96 Colum. L. Rev. 612 (1996).....4, 8

Montesquieu, THE SPIRIT OF THE LAWS (Franz

Neumann ed. & Thomas Nugent trans., 1949) ...... 5

Philip Hamburger, IS ADMINISTRATIVE LAW

EE 15

Rules

Ee l

I a ereineenan l

INTEREST OF AMICUS CURIAE'

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the funda-

mental separation of powers principles implicated by

this case. The Center has previously appeared before

this Court as amicus curiae in several cases address-

Garco Const., Inc. v. Speer, 138 S.Ct. 1052 (2018) (cert.

denied); Dep't of Transp. v. Ass'n of Am. R.R., 135 S.

Ct. 1225 (2015); Perez v. Mortgage Bankers Ass'n, 135

S. Ct. 1199 (2015); and Christopher v. SmithKline Bee-

cham, 567 U.S. 2156 (2012).

SUMMARY OF ARGUMENT

This case asks whether the Constitution’s text and

structure, specifically its separation of powers princi-

ples, require or permit courts to defer to a federal ad-

ministrative agency’s interpretation of its own ambig-

uous regulations. In fact, that interpretive authority

belongs primarily to the judiciary because “the preser-

vation of liberty requires that the three great depart-

ments of power should be separate and distinct;” and

because, concomitantly, the agencies’ interpretation

of their own regulations is a usurpation of the judicial!

' Pursuant to this Court's Rule 37.3(a), this amicus brief is filed

with the consent of the parties. Pursuant to Rule 37.6, Amicus

Curiae affirms that no counsel for any party authored this bref

in whole or in part and that no person or entity other than Ami-

cus Curiae, its members, or its counsel made a monetary contri-

bution to fund the preparation and submission of this brief.

prerogative. James Madison, Federalist 47, THE FED-

ERALIST PAPERS 298 (Charles R. Kesler and Clinton

Rossiter, eds., 2003).

The doctrine of deference to an agency’s interpre-

tation of its own regulations, first announced in

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410

(1945), and ossified in Auer v. Robbins, 519 U.S. 452

(1997), violates standard separation of powers princi-

ples. Those principles are derived from the three

Vesting Clauses of the Constitution allocating the lim-

ited national government's powers to a Congress, a

President, and a judiciary. Deferring to an agency's

interpretation of its own regulations is no less inde-

fensible than deferring to Congress about the mean-

ing of statutes would be. It is also a recipe for post-

hoc agency gamesmanship to ensure the regulator

generally wins over the regulated, the governor over

the governed. This is not the scheme of separated

powers the Framers envisioned.

Furthermore, by misallocating judicial power and

thus threatening individual liberty, Auer exacerbates

the extant problem of delegation of lawmaking powers

to unelected executive officials. That delegation al-

ready is at the constitutional breaking point under

step two of the Chevron doctrine. Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-

43 (1984). Auer also deprives the judiciary of its con-

stitutionally-ensconced and rightful authority to in-

terpret the laws, an authority this Court has recog-

nized for the past 215 years. See Marbury v. Madison,

5 U.S. 137, 177 (1803) (‘It is emphatically the province

and duty of the judicial department to say what the

law is.”). Several members of this Court have in re-

cent years acknowledged the constitutional problems

with the Auer deference doctrine, and the doctrine

should now be overruled.

ARGUMENT

l. Separation of Powers Is One of the Most Im-

portant Structural Features of the Consti-

tutional Design to Protect Liberty.

the Constitution’s separation of powers is “a struc-

tural safeguard rather than a remedy to be applied

only when specific harm, or risk of specific harm, can

be identified.” Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 239 (1995) (emphasis in original). It is “a

prophylactic device, establishing high walls and clear

distinctions because low walls and vague distinctions

will not be judicially defensible in the heat of inter-

branch conflict.” Id.

Several members of this Court have recognized

that various doctrines of deference to the unelected,

unaccountable, and largely-unknown federal bureau-

cracy might be difficult to reconcile with the separa-

tion of powers’ “high walls.” Jd. In particular, mem-

bers of this Court believe that Auer deference is on its

“last gasp.” Garco Const., Inc., 138 S.Ct. at 1053

(Thomas, J., joined by Gorsuch, J., dissenting from de-

nial of certiorari); id. at 1052 (“Seminole Rock defer-

ence is constitutionally suspect.”); United Student Aid

Funds, Inc. v. Bible, 136 S.Ct. 1607, 1608 (2016)

(Thomas, J., dissenting from denial of certiorari).

Even Auer’s author rejected the doctrine. See Perez v.

Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1213 (2015)

(Scalia, J., concurring in judgment) (announcing that

he would be “abandoning” the holding in Auer that he

himself authored); Decker v. Nw. Envtl. Def. Ctr., 568

U.S. 597, 620-21 (2013) (Scalia, J., concurring in part

and dissenting in part) (“Auer is . . . a dangerous per-

mission slip for the arrogation of power” (citing Talk

America, Inc. v. Michigan Bell Tel. Co., 564 U.S. 50,

67-68 (2011) (Scalia, J., concurring)); John F. Man-

ning, “Constitutional Structure and Judicial Defer-

ence to Agency Interpretations of Agency Rules,” 96

Colum. L. Rev. 612 (1996)); see also Perez, 135 S. Ct.

at 1213 (Thomas, J., concurring in judgment) (“these

cases call into question the legitimacy of our prece-

dents requiring deference to administrative interpre-

tations of regulations”); id. at 1210-11 (Alito, J., con-

curring in part and concurring in judgment) (“The

opinions of Justice Scalia and Justice Thomas offer

substantial reasons why the Seminole Rock doctrine

may be incorrect. . . . | await a case in which the va-

lidity of Seminole Rock may be explored through full

briefing and argument”); Decker, 133 S.Ct. at 1338

(Roberts, C.J., joined by Alito, J., concurring) (“It may

be appropriate to reconsider that principle in an ap-

propriate case”).

There is good reason for this willingness to recon-

sider Auer. The rule announced in Seminole Rock and

confirmed in Auer contravenes the separation of pow-

ers—a structural feature of the federal constitution

considered vital by the Framers and Ratifiers—be-

cause it gives to the agencies the judiciary’s preroga-

tive of construing ambiguous regulations. Auer dam-

ages the judiciary, of course, but it also damages the

Executive by setting up an inherent conflict between

the President and the agencies. Ultimately, though,

Auer’s denigration of the separation of powers injures

the individual’s liberty the most. In this respect,

Auer’s sins are obvious, and no “careful and perceptive

analysis” is required to observe the “important [and

adverse] change in the equilibrium of power’ it effec-

tuates. Morrison v. Olson, 487 U.S. 654, 699 (1988)

(Scalia, J., dissenting). But even if Auer’s threat to

individual liberty somehow had rendered it just a wolf

“in sheep’s clothing,” id. (Scalia, J., dissenting), the

separation of powers’ “high walls and clear distinc-

tions” would still require its demise, Plaut, 514 U.S.

at 239.

Separation of the powers of government is foun-

dational to our constitutional system precisely be-

cause the Framers and Ratifiers of the Constitution

understood well that this principle was necessary to

protect individual liberty. Accordingly, the founding

generation relied on the works of Baron de Montes-

quieu, William Blackstone, and John Locke for the

proposition that institutional separation of powers

was an essential protection against arbitrary govern-

ment. See e.g. Montesquieu, THE SPIRIT OF THE LAWS

152 (Franz Neumann ed. & Thomas Nugent trans.,

1949); 1 William Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND 58 (William S. Hein & Co. ed.,

1992); John Locke, THE SECOND TREATISE ON GOVERN.

MENT 82 (Thomas P. Peardon, ed., 1997).

These warnings against consolidated power re-

sulted in structural separation of power protections in

the design of the federal government itself. James

Madison, Federalist 51, THE FEDERALIST PAPERS, su-

pra at 318; James Madison, Federalist 47, THE FED-

ERALIST PAPERS, supra at 298-99; Alexander Hamil-

ton, Federalist 9, THE FEDERALIST PAPERS, supra at

67; see also Thomas Jefferson, Jefferson to Adams,

THE ADAMS-JEFFERSON LETTERS 199 (Lester J. Cap-

pon ed., 1959). That design divided the power of the

national government into three distinct branches, by

vesting the legislative authority in Congress, the ex-

ecutive power in the President, and the ultimate judi-

cial responsibilities in this Court. INS v. Chadha, 462

U.S. 919, 951 (1983).

The ratification debates demonstrate the im-

portance of this separation to the founding genera-

tion. Accepting as a given that power needed to be

separated, the ratifying generation debated whether

the proposed constitutional text separated power

enough. James Madison, Federalist 48, THE FEDERAL-

IST PAPERS, supra at 305. This was a rare issue on

which the federalists and the anti-federalists agreed.

Even the anti-federalist Brutus noted that “[when]

power is lodged in the hands of men independent of

the people, and of their representatives . . . no way is

left to controul them.” Brutus, Essay XV (1788), re-

printed in 2 THE COMPLETE ANTI-FEDERALIST 437, 442

(Herbert J. Storing ed. 1981). In short, the ratifying

generation suffered from no agnosticism or crisis of

confidence about the urgent imperative to diffuse

power both horizontally (among the coordinate federal

branches) and vertically (between the United States

and the sovereign States).

Alarmed that just stopping one branch from exer-

cising the powers of another would prove insufficient,

the Framers designed a system that vested each

branch with the power necessary to resist encroach-

ments by another. James Madison, Federalist 48,

THE FEDERALIST PAPERS, supra at 305. Madison ex-

plained that what the anti-federalists saw as a viola-

tion of separation of powers was in fact the checks and

balances necessary to enforce separation. /d.; James

Madison, Federalist 51, THE FEDERALIST PAPERS, su-

pra at 317-19; see Mistretta v. United States, 488 U.S.

361, 380 (1989).

To preserve the structure set out in the Constitu-

tion, and thus protect individual liberty, the constant

pressures of each branch to exceed the limits of their

authority must be resisted. So much so that any at-

tempt by any branch of government to encroach on an-

other branch’s powers, even if the other branch acqui-

esces in the encroachment, is void. Chadha, 462 U.S.

at 957-58; Kilbourn v. Thompson, 103 U.S. 168, 191

(1880). The duty falls on the judicial branch, in par-

ticular, to enforce this essential protection of liberty.

Chadha, 462 U.S. at 944-46. To be sure, the Consti-

tution was designed to pit ambition against ambition

and power against power. James Madison, Federalist

51, THE FEDERALIST PAPERS, supra at 319; see also

John Adams, Letter XLIX, 1 A DEFENSE OF THE CON.

STITUTIONS OF GOVERNMENT OF THE UNITED STATES OF

AMERICA 323 (The Lawbook Exchange Ltd. 3rd ed.,

2001). But when this structural competition of inter-

ests does not stop an encroachment, this Court is ob-

ligated to void acts that overstep the bounds of sepa-

rated power. Buckley v. Valeo, 424 U.S. 1, 123 (1976);

Kilbourn v. Thompson, 103 U.S., at 199. Judicial en-

gagement at such critical moments is an imperative

and a virtue, not a vice. It is a principal reason that

the judiciary was created.

Il. Seminole Rock and Auer Deference Violate

the Separation of Powers.

The judiciary, like any other branch, must jeal-

ously guard its rightful authority so that structural

protection of individual liberty flourishes. See

Springer v. Philippine Islands, 277 U.S. 189, 201-02

(1928) (“the executive cannot exercise either legisla-

tive or judicial power.”). The judiciary readily has

done so in the past and must always be prepared to do

so in the future. Mistretta, 488 U.S. at 382 (“[Wle

have not hesitated to strike down provisions of law

that either accrete to a single Branch powers more ap-

propriately diffused among separate Branches or that

undermine the authority and independence of one or

another coordinate Branch.”). While each branch has

its own constitutional duty to interpret and adhere to

the Constitution, the judiciary cannot abdicate its own

constitutional responsibility to interpret the law by

giving dispositive deference to the interpretations of

the other branches. United States v. Nixon, 418 U.S.

683, 704 (1974) (“[T]he judicial power . . . can no more

be shared with the Executive Branch than the Chief

Executive, for example, can share with the Judiciary

the veto power. . .. Any other conclusion would be con-

trary to the basic concept of separation of powers.”).

The power to interpret regulations and to give au-

thoritative effect to those interpretations is a judicial

power. Marbury, 5 U.S. at 177. The deference shown

under Seminole Rock and Auer abdicates the judici-

ary’s constitutional responsibility of construing regu-

lations to the agencies. Thus, this deference cedes ju-

dicial power to the Executive; and it invites the very

concentration of power that the founding generation

rejected. See Manning at 674-75; James Madison,

Federalist 51, THE FEDERALIST PAPERS, supra at 318-

19 (“[T]he great security against a gradual concentra-

tion of the several powers in the same department,

consists in giving to those who administer each de-

partment the necessary constitutional means, and

personal motives, to resist encroachments of the oth-

ers”). As Dean Manning has observed, Seminole Rock

deference also dilutes political constraints on agency

action, allowing narrow interest groups to wield dis-

proportionately large influence on the agency. See

Manning at 675.

Additionally, Auer deference damages the Execu-

tive because it induces a President/agency schism, Ar-

ticle II’s Vesting Clause notwithstanding. See Art. II,

§ 1, cl. 1 (‘[t}he executive Power shall be vested in a

President of the United States”) (emphasis added); see

also Morrison v. Olson, 487 U.S. 654, 698-99 (1989)

(Scalia, J., dissenting) (analyzing historical sources);

United States v. Klein, 13 Wall. 128, 147 (1872) (isfa-

voring even “inadvertent” encroachments of one

branch on another’s preserve). Often, the President

has little, if any, control over the interpretation given

to a regulation by an agency supposedly reposed

within his branch and under his Article IJ authority.

The President’s and the agency's interpretive ap-

proaches and bottom-line views on what a legal in-

strument means might, and often do, clash. See, e.g.,

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 551

(1990) (contradictory briefs filed by the United States

and the Federal Communications Commission (FCC)

as to the constitutionality of the FCC's affirmative-ac-

tion program); Petitioner FCC’s Reply to “Brief for the

United States in Opposition” at 1 n.1 (FCC brief in

case construing an agency order chiding the Solicitor

General and “questioning exactly what interests of

the United States the Solicitor legitimately represents

in this case.”), FCC v. MCI Telecommunications Corp.,

439 U.S. 980 (1978) (cert. denied). Auer creates these

fissures within the Executive Branch and threatens

the President’s traditional dominion over his own

branch.

According to the Framers and Ratifiers of our

Constitution, such an intra-Executive schism disrupts

the Presidency’s “unity,” which “is conducive to [ita!

energy,” and its structural integrity. Alexander Ham-

ilton, Federalist 70, THE FEDERALIST PAPERS, supra at

422-23. Realizing some of the worst fears of the Fram-

ing generation, Auer deference has “destroyed” the

Presidency’s “unity” by splitting its power and “vest-

ing” it “in two or more magistrates of equal dignity

and authority.” Jd. at 423. No longer does the Presi-

dent get to enjoy the residual executive power that Ar-

ticle II vests only in that office. Instead, Auer has

“fen|feeble[d]” the Presidency, a result that “implies a

feeble execution of the government” itself—thus de-

moting it to the status of being “a bad government.”

Id. at 422. As a consequence, Seminole Rock and Auer

have inflicted incalculable injury on both the judiciary

and the Executive. To paraphrase Justice Scalia’s

opinion for the Plaut Court, weak fences make weak

neighbors. 514 U.S. at 240.

To be sure, Congress might be able to delegate

the task of filling in scientific and technical details in

a regulatory scheme to an agency by “leaving a gap for

the agency to fill” through a formal process of notice-

and-comment rulemaking. Chevron USA Inc. v. Nat-

ural Resources Defense Council, Inc., 467 U.S. 837,

843-44 (1984).2 The purpose in doing this is to allow

2 This should be distinguished from deferring to administrative

diktats that the statutory text means one thing on one day, and

something completely different on another day. Compare Na-

tional Cable & Telecommunications Ass'n v. Brand X Internet

Services, 545 U.S. 967, 973 (2005) (upholding FCC determination

that broadband internet providers were computer service provid-

ers rather than telecommunication providers under the Telecom-

munications Act of 1996) with United States Telecom Ass'n v.

an agency to exercise its unique expertise in the ser-

vice of the policy adopted by Congress. Once the

agency has “filled the gap” left by Congress through

the formal rulemaking process, however, no deference

should be shown to any subsequent interpretation (or

reinterpretation) of those regulations. If an agency

finds the need to reverse its policy or significantly al-

ter its position, it has the power to do so. It only needs

to promulgate a new rule, through the notice-and-

comment process, explaining the reasons for its

change. Motor Vehicle Mfrs. Ass'n of U.S. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983);

F-.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,

514-15 (2009).

The ultimate power to interpret the meaning of a

regulation—as a legal text—properly belongs to the

judiciary, not the agency that promulgated that regu-

lation. Of course, in applying a regulation, the agency

must make some interpretation in practice. But that

necessary executive function cannot exclude the judi-

ciary from exercising its constitutional authority.

Continuing to give controlling deference under Auer

and Seminole Rock to agency interpretations trans-

fers the judiciary’s constitutional power to the Execu-

tive.

From the early days of the Republic, this Court

has agreed that the courts have both the power and

duty to interpret the law. See Marbury, 5 U.S. at 177.

Later cases have relied on these principles to reject a

FCC, 825 F.3d 674, 695 (D.C. Cir. 2016), cert. denied, 139 S.Ct.

454 (2018) (upholding FCC's new ruling that broadband internet

providers are now telecommunications providers rather than

computer services providers——under the same statutory scheme).

call for deference to legal interpretations by the De-

partment of Justice. Miller v. Johnson, 515 U.S. 900,

922-23 (1995). Each branch of government must sup-

port and defend the Constitution and thus must inter-

pret the Constitution. The Courts may not, however,

cede their judicial power to interpret the laws to the

Executive. See United States v. Nixon, 418 U.S. at 704

(1974).

The scheme for balancing power between the

branches of government depends on each branch ex-

ercising the full extent of its power. Federalist 51, su-

pra at 269. This explains why this Court in Marbury

did not simply declare legal interpretation to be a ju-

dicial power. Instead, the Court ruled that it was the

duty of the judiciary to exercise that power. Marbury,

5 U.S. at 177. In order to keep the political branches

in check, this Court may not surrender its power to

interpret the law to either of the political branches.

The failure to exercise this duty would be an invita-

tion to “partiality and oppression.” 1 William Black-

stone, COMMENTARIES ON THE LAWS OF ENGLAND, Bk 1

§ 2, at 58. The rule of controlling deference to agency

interpretation of ambiguous regulations, however, is

a surrender of judicial power and a decision to cede to

the Executive the judicial power.

Chevron deference, when applied to an agency, us-

ing its specialized expertise, to merely fill a gap in the

technical details of a regulatory scheme, does not raise

the same concerns for separation of powers present

here. Under this original purpose of Chevron defer-

ence, the Court does not cede its power to interpret the

law. Instead, the Court recognizes that Congress

gives agencies clear policy guidance and then relies on

those agencies to employ their specialized expertise

(such as what level of exposure to a particular chemi-

cal is harmful) to fill in gaps in the legislative scheme.

Until the agency has filled in those gaps in, the stat-

ute may not yet be complete in the sense that special-

ized expertise must be brought to bear on the prob-

lems that Congress sought to address. This use of

agency expertise by Congress to fill in details in the

regulatory scheme is not a part of the judicial func-

tion.

Once the agency has issued a regulation that car-

ries the force of law, however, it then falls to the courts

to interpret the regulation. In other words, it is the

judiciary’s job “to declare the sense of the law.” Fed-

eralist 78, supra at 405.

Granting deference to the agency to interpret its

own ambiguous regulation cedes the judicial function

to the Executive. This is an invitation to agencies to

avoid the expense and bother of rulemaking proceed-

ings when it wants to change its policy. Instead of go-

ing through the process to allow public participation

and judicial review of the change, it can instead

merely change how it interprets its existing regula-

tions.

Denying “controlling deference” to an agency inter-

pretation does not mean that the courts must ignore

long-standing agency interpretations and practices.

Those remain important interpretative tools. Yet the

ultimate job of interpreting the legal text will remain

with the courts. To do otherwise results in a failure of

the duty of the judicial branch of government “to de-

c. ure the sense of the law” and thus violates the sepa-

ration of powers required by the Constitution.

Ill. Auer and Seminole Rock May be Overruled

Consistent with Traditional Stare Decisis

Principles.

“Stare decisis is not an inexorable command.”

Payne v. Tennessee, 501 U.S. 808, 828 (1991). For sev-

eral reasons, stare decisis does not support retaining

Auer and Seminole Rock.

First, these decisions were not well-reasoned and,

as explained earlier, remain indefensible. Seminole

Rock, Justice Scalia noted, “offered no justification

whatever” for deferring to an agency’s interpretation

of its own regulation. Decker, 568 U.S. at 617-18

(Scalia, J., concurring in part and dissenting in part);

see also Janus v. Am. Federation of State, Cty., and

Mun. Employees, Council 31, 138 S.Ct. 2448, 2479

(2018) (considering the precedent’s quality of reason-

ing in determining whether it should be retained).

Seminole Rock and Auer deference has been the sub-

ject of special criticism by members of this Court and

by lower court judges struggling to understand and

apply the doctrine properly. Pearson v. Callahan, 555

U.S. 223, 234-35 (2009) (modifying the qualified-im-

munity inquiry for similar reasons); see also Egan v.

Delaware River Port Auth., 851 F.3d 263, 278 (3d Cir.

2017) (Jn :dan, J., concurring in judgment) (“The prob-

lems [Auer and Chevron] create are serious and ought

to be fixed.”); Turtle Island Restoration Network v.

United States Dep't of Commerce, 878 F.3d 725, 742

n.1 (9th Cir. 2017) (Callahan, J., dissenting in part)

(“Auer’s continued vitality is a matter of considerable

debate.”).

Second, this Court’s intervening decisions have re-

moved or weakened Auer’s and Seminole Rock’s con-

ceptual underpinnings. Rodriguez de Quijas v. Shear-

son/American Express, Inc., 490 U.S. 477, 480-81

(1989). As an initial matter, this Court now gives pri-

macy to the salient instrument’s text and structure,

which has not always been the case. Miller, 515 U.S.

at 922-23. There%re, the agencies’ views on what

their regulations mean has diminished value to the

Court. Moreover, this Court has abrogated Auer’s

predicates and rendered what remains of the original

deference a problematic anomaly. See Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 155-56

(2012) (holding that Auer is inapplicable to an

agency's “interpretation of ambiguous regulations

[that would] impose potentially massive liability on

[the regulated entity] for conduct that occurred well

before that interpretation was announced”); Talk

America, 564 U.S. at 63-64 (indicating that Auer pro-

scribes agencies from issuing what effectively

amounts to a new regulation); Gonzales v. Oregon, 546

U.S. 243, 257 (2006) (holding that Auer is applicable

where the regulation simply paraphrases the statute);

Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)

(holding that Auer is inapplicable where the agency’s

regulation is unambiguous).

Moreover, Auer and Seminole Rock themselves are

relatively recent aberrations in the historical trajec-

tory of judicial deference. See, e.g., Decatur v. Pauld-

ing, 39 U.S. 497, 515 (1840) (Marshall, C.J.); Philip

Hamburger, IS ADMINISTRATIVE LAW UNLAWFUL? 294

(2014) (stating that the early Supreme Court's “lack of

deference” to the Executive meant that “[t]he judges

had to defer to the law, not the Executive’s interpre-

tation”). Erasing these anomalies will enhance the in-

terests of continuity and stability in the law and thus

the interests of stare decisis itself. See Janus, 138

16 ‘

S.Ct. at 2483-84. Otherwise, stare decisis would be-

come an empty ta:isman reflexively attached to the

latest authoritative judicial pronouncement, a canon

decoupled from the very interests it is supposed to ad-

vance.

Third, a precedent receives weak stare decisis ef-

fect when: It is a constitutional (instead of statutory)

case, see Agostini v. Felton, 521 U.S. 203, 235 (1997);

it addresses the evidentiary and procedural rules fac-

ing stakeholders, not their primary conduct engender-

ing reliance and expectancy, see Pearson, 555 U.S. at

233-34; Payne, 501 U.S. at 828; or it is just an inter-

pretive tool, see Pearson, 555 U.S. at 233-34. Because

Seminole Rock and Auer deference is a constitutional

matter involving the separation of powers, does “not

affect the way in which parties order their affairs,”

and is only a tool of judicial construction, it is not en-

titled to stare decisis effect. Id.

Fourth, this Court most vigilantly enforces the

Constitution’s structural protections, including by in-

validating long-standing unconstitutional practices,

see Chadha, 462 U.S. at 959, or of recent vintage, see

Plaut, 514 U.S. at 240; United States v. Lopez, 514

U.S. 549, 551, 567-68 (1995). Otherwise our entire

constitutional structure would unravel. The Court

should so enforce again here.

The most illustrative example of judicial engage-

ment to enforce our separation of powers is Chadha,

where this Court struck down the legislative veto. 462

U.S. at 959. Despite the fact that more than 200 stat-

utes across a wide array of policy areas over at least

five decades had deployed this practice, the Court held

that the p:actice violated the Constitution’s structural

requirements of bicameralism and presentment.

Chadha, 462 U.S. at 967-68 (White, J., dissenting).

The Court rejected those concerns. Notwithstanding

the “cumbersomeness and delays” inherent in a sys-

tem of separated powers, there is no better way to pre-

serve freedom. /d. at 959. The alterations on which

the Chadha Court insisted in response to the Consti-

tution’s structural fortifications were necessary and

worthwhile.

The structural mischief Auer deference induces is

similar, in many respects, to the shortcut the Chadha

Court ended. In both cases, the enforcement by this

Court of the structural provisions contained in the

Constitution was essential because the character of

our entire federal government and the preservation of

core individual liberty are imperiled when the powers

are hopelessly commingled. Accordingly, this Court

should restore its coordinate branches to their proper

preserves by jettisoning Seminole Rock and Auer def-

erence.

CONCLUSION

Several members of this Court have already

acknowledged the significant separation of powers

problems that result from the increasingly broad reli-

ance on deference doctrines by the unaccountable, un-

elected, and unchecked administrative bureaucracy.

As the Chief Justice noted, the issue of Auer deference

“is a basic one going to the heart of Administrative

Law.” Decker, 568 U.S. at 1339 (Roberts, C.J., concur-

ring). The Court has granted certiorari to resolve that

very issue. Now the Court can and should restore the

separation of powers principles that lie at the heart of

our constitutional system of government.

For the reasons stated in this brief and by peti-

tioner, this Court should overrule Seminole Rock and

Auer and reverse the Federal Circuit’s judgment.

January 2019

RIDDHI DASGUPTA

13330 Ridgewood Drive

Ellicott City, MD 21042

(703) 927-1148

rdasgupta@cantab. net

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Center for Constitutional

Jurisprudence