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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0867%3A42

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0867%3A42. Public record. Not legal advice.