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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 18-15

In the

Supreme Court of the Anited States

JAMES L. KISOR,
Petitioner,
v.
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

i
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,

iv

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

v

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

vi
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.

2

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

3

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

4

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

5

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

6

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

7

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

8

(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

9

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.

10

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.

1]

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).

12

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

13

(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.

14

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-

15

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.

17

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.

18

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
c/o Chapman University
Fowler School of Law
One University Drive
Orange, CA 92866
(877) 855-3330
caso@chapman.edu

Counsel for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0846%3A19. Public record. Not legal advice.