Amicus Curiae Brief — Dep't of Commerce v. New York, 139 S. Ct. 1249 (2019) (No. 18-966)

No. 18-966

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF COMMERCE, et al.,

Petitioners,

Vv.

STATE OF NEW YORK, et ai.,

Respondents.

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the Second Circuit

BRIEF FOR AMICUS CURIAE

IMMIGRATION REFORM LAW INSTITUTE

IN SUPPORT OF PETITIONERS

CHRISTOPHER J. HAJEC*

MARK S. VENEZIA

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW, Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

*Counsel of Record

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Rule ...

6 O.6- 8B 8. S226224.08 22 C8 6.8 Cees ee ae 2 ef

Il. The District Court's Rule Would Make 5

U.S.C. § 706(2)(A) Unconstitutional........

Ill. Presidential Influence Is Irrelevant To

Arbitrary And Capricious Review.........

CONCLUSION

eSSCCOOS CEOS ee eese se sceeeed@eonseae Bdeevs se

ii

TABLE OF AUTHORITIES

CASES

Arizona Dream Act Coal. v. Brewer,

818 F.3d 101 (9th Cir. 2016).............

Burlington Truck Lines, Inc. v. United States,

DPE Gs PEE Se escccnecdcenedons

City of El Cenizo v. Texas,

890 F.3d 164 (5th Cir. 2018).............

Estate of Sanford v. Commissioner,

SP PE Cecccecvesccsseseves

FCC v. Beach Communications,

Se Ss PT Ey obs owe ccc esecovcens

FCC v. Fox TV Stations, Inc.,

Se es IS So bd vepcceccasseees

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) .......

Home Box Office, Inc. v. FCC,

567 F.2d 9 (D.C. Cir. 1977)..............

Humphrey’s Ex’r v. United States,

PE CES waco sesepeccccccees

In re DOC,

Sy Se EES b cot pcscdsebeccvnss

Judulang v. Holder,

SPEER ce edbeccasnnecsenvess

Latecoere Int'l, Inc. v. U.S. Dep't of the Navy,

19 F.3d 1342 (11th Cir. 1994)............

ill

Lehnhausen v. Lake Shore Auto Parts Co.,

a ee eee ia be 7

Massachusetts v. EPA,

ee ee GT IE, oo pbc wie cavebesiccese 12, 13

Matter of C-T-L-,

25 I. & N. Dec. 341 (B.1.A. 2010) ............. 1

Matter of Silva-Trevino,

26 I. & N. Dec. 826 (B.1.A. 2016) ............. 1

Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Automobile Ins. Co.,

ES 3, 11, 12

Save Jobs USA v. U.S. Dep't of Homeland Sec.,

No. 16-5287 (D.C. Cir., filed Sept. 28, 2016).... 1

SEC v. Chenery Corp.,

EES SR ay eee 4

Trump v. Hawaii,

Ss Ge cv csce ede teestcesiees 1

Tummino v. Torti,

603 F. Supp. 2d 519 (E.D.N.Y. 2009)....... 6, 11

United States Lines, Inc. v. Federal Maritime Com.,

584 F.2d 519 (D.C. Cir. 1978)................ 5

United States v. Texas,

ee ee ae by 1

Washington All. of Tech. Workers v. U.S. Dep't of

Homeland Sec., 74 ¥F. Supp. 3d (D.D.C. 2014)... 1

iv

Woods Petroleum Corp. v. U.S. Dept. Of Interior,

18 F.3d 854 (10th Cir. 1994)................. 5

XP Vehicles, Inc. v. DOE,

118 F. Supp. 3d (D.D.C. 2015) ............... 6

CONSTITUTION AND STATUTES

ee, acces batowacseveke 10

eh ee ree 2, 3, 7, 10

OTHER AUTHORITY

Elena Kagan, Presidential Administration, 114

Peasy. Es. MOV. BBGB GRGOT). www cccccccccccecs 8

1

INTEREST OF AMICUS CURIAE'

The Immigration Reform Law Institute (“IRLI”) is

a not for profit 501(c)(3) public interest law firm

incorporated in the District of Columbia. IRLI is

dedicated to litigating immigration-related cases on

behalf of United States citizens, as well as

organizations and communities seeking to control

illegal immigration and reduce lawful immigration to

sustainable levels. IRLI has litigated or filed amicus

curiae briefs in many immigration-related cases before

federal courts (including this Court) and administrative

bodies, including Trump v. Hawaii, 138 S. Ct. 2392

(2018); United States v. Texas, 136 8S. Ct. 2271 (2016);

City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir. 2018);

Arizona Dream Act Coal. v. Brewer, 818 F.3d 101 (9th

Cir. 2016); Washington All. of Tech. Workers v. U.S.

Dep't of Homeland Sec., 74 F. Supp. 3d 247 (D.D.C.

2014); Save Jobs USA v. U.S. Dep’t of Homeland Sec.,

No. 16-5287 (D.C. Cir., filed Sept. 28, 2016); Matter of

Silva-Trevino, 26 1. & N. Dec. 826 (B.1.A. 2016); and

Matter of C-T-L-, 25 1. & N. Dec. 341 (B.1.A. 2010),

' The parties have consented in writing to the filing of this amicus

curiae brief. No counsel for a party in this case authored this brief

in whole or in part, and no such counsel or party made a monetary

contribution intended to fund the preparation of this brief. No

person other than amicus curiae, its members, or its counse! made

a monetary contribution to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

This Court should decline to follow a _ rule

announced by the United States District Court for the

Southern District of New York (“District Court”)—to

wit, that agency decisions for which an agency has

articulated a sufficiently reasonable basis nevertheless

are arbitrary and capricious under the Administrative

Procedure Act (“APA”), specifically 5 U.S.C. § 706(2)(A),

if that basis is a “pretext” for other, unknown motives.

The District Court failed to support its rule in the cases

it cited. Worse, since motives unstated in the record

and unknown to a reviewing court might be either

directives by the President of the United States or

ideological positions shared by the President and an

agency head, and responsible for both the former's

election and the latter’s appointment, the District

Court’s rule would make § 706(2)(A) an

unconstitutional infringement on the President's

authority to control his subordinates, and on the right

of the people to influence the direction of regulatory

policy by voting in presidential elections. As the

jurisprudence of this Court indicates, arbitrary and

capricious review is satisfied if, and only if, a reasoned

basis under the governing statute has been articulated

for the agency's decision, at least where, as here, no

improper motive has been found.

3

ARGUMENT

I. The District Court Failed To Justify Its

Rule.

Agencies are required by 5 U.S.C. § 706(2)(A) to

engage in “reasoned decisionmaking.” Judulang v.

Holder, 565 U.S. 42, 53 (2011). Under this standard,

[njormally, an agency rule would be arbitrary

and capricious if the agency has relied on factors

which Congress has not intended it to consider,

entirely failed to consider an important aspect of

the problem, offered an explanation for its

decision that runs counter to the evidence before

the agency, or is so implausible that it could not

be ascribed to a difference in view or the product

of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Automobile Ins. Co., 463 U.S. 29, 43 (1983) (“State

Farm”).

The District Court went far beyond these

requirements, and others articulated by this Court, by

purporting to derive a rule that if an agency’s stated

reason for its decision is a “pretext” for some other

motive unknown to the court, even if that motive is not

improper, the agency's decision is arbitrary and

capricious. Pet. App. (“App.”) 312a. In attempting to

justify this rule, the District Court first found a

requirement that an agency disclose its grounds or

basis for its decision in words of this Court:

|J}udicial review of agency action “requires that

the grounds upon which the. . . agency acted be

4

clearly disclosed.” [SEC v. Chenery Corp., 318

U.S. 80} at 94; accord Burlington Truck Lines,

Inc. v. United States, 371 U.S. 156, 167-68 (1962)

(stating that an agency must “disclose the basis

of its” action).

App. 31la-312a. The District Court then declared that

“a court cannot sustain agency action founded on a

pretextual or sham justification that conceals the true

‘basis’ for the decision. Indeed, any other rule would

deprive the words ‘basis, ‘grounds,’ and ‘disclose’ of any

force or meaning.” App. 312a. The District Court then

found, as an “independent basis” for vacating

defendants’ decision, that it was just such a pretext,

even though the court was unable to identift | \e “real”

reason for the decision, or to conclude that the real

reason was improper. App. 311la, 313a.

In so arguing, the District Court wholly failed to

justify its sweeping anti-pretext rule. To begin with, no

ulterior motive was at issue in either Chenery or

Burlington Truck Lines. Rather, in Chenery, this Court

refused to consider reasons given by counsel at trial

that differed from those that the agency, as revealed in

the record, had relied on. Chenery, 318 U.S. at 92

(“[T]he considerations urged here in support of the

Commission’s order were not those upon which its

action was based”) (emphasis added). And in

Burlington Truck Lines, this Court found that the

agency had failed to disclose, in important respects,

any basis for its action, not that it had disclosed a mere

pretext for its real reason. Burlington Truck Lines, 371

U.S. at 168 (“Here the Commission made no findings

specifically directed to the choice between two vastly

5

different remedies with vastly different consequences

to the carriers and the public. Nor did it articulate any

rational connection between the facts found and the

choice made.”). The failure in Burlington Truck Lines

was one of explanation; that failure did not imply an

ulterior motive, any more than a failure to give any

reason for an agency action would imply such a motive.

The District Court fared no better in the lower-court

cases it cited to support its rule, App. 312a-313a. In

United States Lines, Inc. v. Federal Maritime Com., 584

F.2d 519 (D.C. Cir. 1978), the failure was again one of

explanation; the agency left gaps in its explanation for

its action, which it proposed to fill with unspecified

“data” in its files. Jd. at 533. In Home Box Office, Inc.

v. FCC, 567 F.2d 9 (D.C. Cir. 1977), the court did find

an ulterior motive, but unlike the District Court, it

identified that motive, which it saw as improper. Jd. at

53 (“[W]e are particularly concerned that the final

shaping of the rules we are reviewing here may have

been by compromise among the contending industry

forces, rather than by exercise of the independent

discretion in the public interest the Communications

Act vests in individual commissioners.”). Home Box

Office thus does not support the District Court’s rule

that an agency may never have any reason other than

those it articulates, even where, as here, that reason is

unknown to the court, and may not be improper.

Similarly, the courts in the remaining cases the

District Court cited articulated specific ulterior motives

that they saw as improper. See App. 314a-315a (citing

discrimination cases); App. 312a-313a (citing Woods

Petroleum Corp. v. U.S. Dept. Of Interior, 18 F.3d 854,

859 (10th Cir. 1994) (finding “the ulterior motive of

6

enabling the Indian lessors to acquire an additional

bonus payment from a new potential contracting

party”); XP Vehicles, Inc. v. DOE, 118 F. Supp. 3d 38,

79 (D.D.C. 2015) (finding allegations of agency

favoritism sufficient to state an arbitrary and

capricious claim); Tummino v. Torti, 603 F. Supp. 2d

519, 544 (E.D.N.Y. 2009) (finding “pressure emanating

from the White House” to be an improper basis);

Latecoere Int'l, Inc. v. U.S. Dep't of the Navy, 19 F.3d

1342, 1356 (11th Cir. 1994) (finding political pressures

against using a foreign firm over an American firm to

be improper)). In light of the discussion infra, the

reasoning in these last two cases (especially that of

Tummino) may have been faulty, but neither case

directly supports the District Court’s blanket rule

against any and all “pretext,” even that for an

unknown and proper motive.

The root of the District Court’s difficulty in

justifying its rule* was that it conflated “basis” with

“motive.” That mistake ignores longstanding

jurisprudence of this Court under which bases are not

always motives. Indeed, under the rational basis

requirement for due process, a basis may even be a post

hoc rationalization, unconnected to any motive that an

agency or a legislature may have had for its action.

See, e.g., FCC v. Beach Communications, 508 U.S. 307,

* This difficulty is perhaps why the District Court twice solicited

a concession to its rule from counsel for defendants, Dist. Ct. Doc.

No. 150 (“May 9 Conf. Tr.”) at 15; Dist. Ct. Doc. No. 366 (“Sept. 14

Conf. Tr.”) at 36-37, a concession that was only partially made. No

such concession, of course, binds this Court, or prevents an amicus

curiae from raising the issue. Estate of Sanford v. Commissioner,

308 U.S. 39, 50-51 (1939).

7

314-15 (1993) (“On rational-basis review, ... those

attacking the rationality of the legislative classification

have the burden ‘to negative every conceivable basis

which might support it”) (quoting Lehnhausen v. Lake

Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Of

course, the test for whether a regulation is arbitrary

and capricious under the APA is not a rational basis

test, but rather one requiring reasoned decisionmaking,

Judulang, 565 U.S. at 53, but the word “basis” against

the background of that test does not suggest that

“basis” is restricted in meaning, as the district court

presupposed, to “motive.” Rather, it suggests, or at

least leaves room for, a meaning that, while narrower

than a post hoc rationalization, is broad enough to

cover articulated bases that are not, in fact, motives.

Il. The District Court’s Rule Would Make 5

U.S.C. § 706(2)(A) Unconstitutional.

Not only was the District Court unable to justify its

sweeping anti-pretext rule, but strong policy and

constitutional considerations weigh against it.

Unknown “ulterior motives” for agency action, after all,

might be presidential directives or influence based on

broad policy or ideological considerations. Since such

considerations may play a role in the election of a

President, democratic accountability is strongly

promoted by what then Professor Elena Kagan termed

“presidential administration,” meaning the direction of

regulatory policy by the President:

Presidential administration promotes

accountability in two principal and related ways.

First, presidential leadership enhances

transparency, enabling the public to comprehend

8

more accurately the sources and nature of

bureaucratic power. Second, presidential

leadership establishes an electoral link between

the public and the bureaucracy, increasing the

latter’s responsiveness to the former. Modern

attributes of the relationship between the

President and the public make these claims

stronger than ever before.

Elena Kagan, Presidential Administration, 114 Harv.

L. Rev. 2245, 2331-32 (2001).

Indeed, the value of accountability underlay the

Constitution’s vesting of executive power in a single

elected President. As this Court has explained:

The Constitution provides that “(t]he executive

Power shall be vested in a President of the

United States of America.” Art. II, § 1, cl. 1. As

Madison stated on the floor of the First

Congress, “if any power whatsoever is in its

nature Executive, it is the power of appointing,

overseeing, and controlling those who execute

the laws.” 1 Annals of Cong. 463 (1789).

The removal of executive officers was

discussed extensively in Congress when the first

executive departments were created. The view

that “prevailed, as most consonant to the text of

the Constitution” and “to the requisite

responsibility and harmony in the Executive

Department,” was that the executive power

included a power to oversee executive officers

through removal; because that traditional

executive power was not “expressly taken away,

9

it remained with the President.” Letter from

James Madison to Thomas Jefferson (June 30,

1789), 16 Documentary History of the First

Federal Congress 893 (2004). “This Decision of

1789 provides contemporaneous and weighty

evidence of the Constitution’s meaning since

many of the Members of the First Congress had

taken part in framing that instrument.”

Bowsher v. Synar, 478 U.S. 714, 723-724, 106 8.

Ct. 3181, 92 L. Ed. 2d 583 (1986) (internal

quotation marks omitted). And it soon became

the “settled and well understood construction of

the Constitution.” Ex parte Hennen, 38 U.S.

230, 13 Pet. 230, 259, 10 L. Ed. 138 (1839).

The landmark case of Myers v. United States

reaffirmed the principle that Article II confers

on the President “the general administrative

control of those executing the laws.” [272 U.S.

52, 164 (1926).] It is his responsibility to take

care that the laws be faithfully executed. The

buck stops with the President, in Harry

Truman’s famous phrase.

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477, 492-93 (2010) (emphasis in original). As

this Court further explained, presidential control of

administration is essential to democratic

accountability:

The people do not vote for the “Officers of the

United States.” Art. Il, § 2, cl. 2. They instead

look to the President to guide the “assistants or

deputies . . . subject to his superintendence.”

The Federalist No. 72, p. 487 (J. Cooke ed. 1961)

10

(A. Hamilton). Without a clear and effective

chain of command, the public cannot “determine

on whom the blame or the punishment of a

pernicious measure, or series of pernicious

measures ought really to fall.” Jd., No. 70, at

476 (same). That is why the Framers sought

to ensure that “those who are employed in the

execution of the law will be in their proper

situation, and the chain of dependence be

preserved; the lowest officers, the middle grade,

and the highest, will depend, as they ought, on

the President, and the President on the

community.” 1 Annals of Cong., at 499 (J.

Madison).

Id. at 497-98.

Of course, Presidents must follow the law, and this

Court has upheld some restrictions on the President’s

power to remove high administrative officials. See, e.g.,

id. at 493 (discussing Humphrey’s Ex’r v. United States,

295 U.S. 602 (1935)). But if § 706(2)(A) is read, as the

District Court read it, to imply a rule against all

pretextual justifications, even those for a proper if

unknown motive, then that section would infringe on

the President’s constitutional authority, recognized

repeatedly by this Court, to control his subordinates,

and thus on the constitutional right of the people to

influence the administration of the laws by voting in

presidential elections.

The President must faithfully execute the laws and

follow them, Art. II, § 3, and his subordinates may be

required by law to engage in reasoned decisionmaking,

as the APA requires, but the District Court’s rule

11

would deprive the President of influence, both direct

and indirect, over agency actions: he could neither

direct a given result (at least in cases where the stated

reason was not a motive) nor exert influence indirectly

by relying on ideological affinity in his appointed

subordinate, for ideology, however much it could be

traced to the views of the people who elected the

President, would also be a forbidden basis under the

District Court’s rule. In short, the District Court’s rule

would make agency heads unaccountable Platonic

Guardians, sheltered from the winds of change that

may come from the election of a new President. Jn re

DOC, 139 8. Ct. 16, 17 (2018) (Gorsuch, J., concurring)

(“[T]here’s nothing unusual about a new cabinet

secretary coming to office inclined to favor a different

policy direction”); State Farm, 463 U.S. at 59

(Rehnquist, J., concurring and dissenting) (“A change

in administration brought about by the people casting

their votes is a perfectly reasonable basis for an

executive agency's reappraisal of the costs and benefits

of its programs and regulations. As long as the agency

remains within the bounds established by Congress, it

is entitled to assess administrative records and

evaluate priorities in light of the philosophy of the

administration.”); but see, e.g., Tummino, 603 F. Supp.

2d at 544 (finding “pressure emanating from the White

House” an improper basis).

12

Ill. Presidential Influence Is Irrelevant To

Arbitrary And Capricious Review.

No different result is mandated by this Court’s

precedents. Indeed, the consistent stance of this Court

has been to treat presidential influence, and political

influences generally, as irrelevant in arbitrary and

capricious review.

As mentioned above, while concurring and

dissenting in State Farm, Justice Rehnquist noted with

approval that a presidential election was responsible

for the agency’s changed view. State Farm, 463 U.S. at

59. The majority simply ignored this evident

presidential influence, however, and never mentioned

it in its opinion. This silence is at least consistent with

its having been this Court’s view that political and

ideological motives emanating from the President are

irrelevant to arbitrary and capricious review, because

irrelevant to the question (the sole question in such

review, at least absent an improper motive) of whether

a reasoned basis under the statute has been articulated

for the decision.

This Court made the irrelevancy of such factors

clear in Massachusetts v. EPA, 549 U.S. 497, 533-34

(2007), where it found the Environmental Protection

Agency (“EPA”) to have been arbitrary and capricious

in its refusal to regulate greenhouse gasses because it

gave only broad political and policy grounds, emanating

from the President, for its refusal to regulate, and

ignored statutory factors:

If EPA makes a finding of endangerment, the

Clean Air Act requires the Agency to regulate

13

emissions of the deleterious pollutant from new

motor vehicles. .. .

EPA has refused to comply with this clear

statutory command. Instead, it has offered a

laundry list of reasons not to regulate. For

example, EPA said that a number of voluntary

Executive Branch programs already provide an

effective response to the threat of global

warming, 68 Fed. Reg. 52932, that regulating

greenhouse gases might impair the President’s

ability to negotiate with “key developing

nations” to reduce emissions, id., at 52931, and

that curtailing motor-vehicle emissions would

reflect “an inefficient, piecemeal approach to

address the climate change issue,” ibid.

Although we have neither the expertise nor

the authority to evaluate these policy judgments,

it is evident they have nothing to do with

whether greenhouse gas emissions contribute to

climate change. Still less do they amount to a

reasoned justification for declining to form a

scientific judgment. In particular, while the

President has broad authority in foreign affairs,

that authority does not extend to the refusal to

execute domestic laws.

Id. at 533-34. Notably, while this Court required a

reasoned decision by the EPA based on statutory

factors, it did not say or hint that it would invalidate a

second decision with an adequately-articulated basis in

the statute if it suspected or found that the decision

was motivated by political pressure.

14

Similarly, in FCC v. Fox TV Stations, Inc., 556 U.S.

502, 524-25 (2009), Justice Scalia noted that the wishes

of the authority to which the agency was responsible

(in this case, he posited, Congress) “would seem an

adequate explanation of [the agency’s] change of

position.” The portion of his opinion in which he wrote

for the Court, however, made no mention of this

political influence. Again, the stance of thie Court was

one of indifference to presidential or political motives

for agency action, and a concentration on the

requirement for reasoned decisionmaking based on

statutory factors.

This stance—viz., that, at least absent an improper

motive, only the adequacy of the agency’s articulation

of a reasonable basis for its decision in the statute is

relevant to whether its action is arbitrary and

capricious, and presidential directives are irrelevant—

is at odds with the District Court’s sweeping anti-

pretext rule. That rule would sometimes call for

vacating an action supported by such an adequate

articulation on the ground that it was a pretext for an

unknown motive that was in fact (as it sometimes

would be) a presidential directive. In this way, the

District Court’s rule would make that presidential

directive relevant, and dislodge reasoned

decisionmaking from its status as the lynchpin of

arbitrary and capricious review.

15

CONCLUSION

For the foregoing reasons, the judgement of the

District Court should be reversed.

Respectfully submitted,

CHRISTOPHER J. HAJEC*

MARK 8S. VENEZIA

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW, Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

*Counsel of Record

Attorneys for Amicus Curiae