Amicus Curiae Brief — Raines v. Byrd

Supreme Court, U.S.

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96-1671 : MAY 9 1997

mon aw we

IN THE :

Supreme Court of the Gnited States

OCTOBER TERM, 1996

FRANKLIN D. RAINES, ef al.,

Appellants,

_P

SENATOR ROBERT C. BYRD, ef ai..

Appellees.

On Direct Appeal from the United States

District Court for the District of Columbia

BRIEF OF THE AMERICAN PETROLEUM

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

G. WILLIAM FRICK*

PHILIP A. COONEY

AMERICAN PETROLEUM INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8240

Counsel of Amicus Curiae

May 1997 *Counsel of Record

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. @ 1-800-347-8208

QUESTION PRESENTED

Whether the Line Item Veto Act violates Article I of the

Constitution by delegating legislative authority to the President.

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TABLE OF CONTENTS

Page

SABES OF ALTERS ESIES oc ct etvanccuvcsvetwncs: ill

INTEREST OF THE AMICUS CURIAE .............. l

SUMMARY OF ARGUMENT .. 2.0.5 .ccccccccsecees 2

ARGUMENT

I. THE DISTRICT COURT'S REASONING

WOULD EVISCERATE THIS COURT'S

NONDELEGATION DOCTRINE IN THE

ESE ATOR Y COUPEE 65 ci Scdctceconsscse 3

II. REPRESENTATIVE DEMOCRACY

DEMANDS ACCOUNTABILITY OF THE

LEGISLATIVE BRANCH TO THE PEOPLE....... 6

AIPOURAIES. oe vvcanes (445 Smee Oieeeeaeeeeees 9

ili

TABLE OF AUTHORITIES

Cases

Page

Arizona v. California, 373 U.S. 546, 626 (1963) ......... 8

Bowsher v. Synar, 478 U.S. 714, 730 (1986) ............ &

Byrd v. Raines Slip op., Civ. No. 97-0001

artes MA I 2G BOI es 8 eo 4,8

City of Rome v. United States, 446 U.S.

ay MNOS hare Wo stew ee ba v8 oR cee 7-8

J. W. Hampton, Jr. & Co. v. United States,

is ORD ook os kk os veka ow. 6

Loving v. United States, 517 U.S. __,

116 S. Ct. 1737, 1743, 1750 (1996) ........... 4,5,6

Metropolitan Washington Airports Authority

v. Citizens for the Abatement of

Airport Noise, Inc., 501 U.S. 252, 273 (1991) ....... 8

Miller v. Johnson, 515U.S.__,

BED Ge My OAT CADDO) oo cies ecccecuuss 7

Mistretta v. United States, 488 U.S.

NN hs oe is 18S Gi a GA ss 8 kv 6

United States v. Lopez, 514 U.S. 549,

baa o GA. bOwe, EGSP-SO (ISPS) sk. ok. wc cnc cs 7

iv

Statutes

Page

The Line Item Veto Act, Pub. L. No. 104-130,

EES CL: Re Le 6 ended bb be bee kareena passim

Miscellaneous

Ely, John H., DEMOCRACY AND DISTRUST:

A THEORY OF JUDICIAL REVIEW, (1980) ........... 6

Hamilton, Marci A., THE FIRST AMENDMENT'S CHALLENGE

FUNCTION AND THE CONFUSION IN THE SUPREME

COURT'S CONTEMPORARY FREE EXERCISE

JURISPRUDENCE, 29 Ga. L. Rev. 81, 86-90 (1994) ....8

Schoenbrod, David, GOALS STATUTES OR RULES STATUTES:

THE CASE OF THE CLEAN AIR ACT,

30 UCLA Law Review 740 (1983)................ 7

Schoenbrod, David, POWER WITHOUT RESPONSIBILITY:

How CONGRESS ABUSES THE PEOPLE

THROUGH DELEGATION, (1993) at 28-31 ........... 8

S. Rep. No. 9, 104th Cong., Ist Sess., at 15 (1995) ....... 6

]

INTEREST OF AMICUS CURIAE'

The American Petroleum Institute (“API”), a non-profit

corporation in the District of Columbia, is a national trade

association. More than 300 companies are members and

represent all facets of the petroleum industry, including

exploration, production, transportation, refining and marketing.

As such, they are often subject to and required to comply with

onerous federal regulations which are created by federal

agencies under statutes that delegate lawmaking authority under

vague terms. In API’s view, such statutes impermissibly

delegate to these agencies the Congress’ exclusive authority

under the Constitution to legislate. API’s members therefore

have a vital interest in this Court’s preservation of the

nondelegation doctrine as it applies to improper regulatory

excesses which are inherently legislative in nature.

The Parties have consented in writing to the filing of

this brief.

‘Pursuant to Supreme Court Rule 37.6, amicus curiae hereby represents

that no counsel for any party had any role in authoring this brief. Amicus

curiae discloses that Professors of Law Marci A. Hamilton and David

Schoenbrod, of The Cardozo School of Law and New York Law School,

respectively, assisted in the preparation of this brief, for which they will

receive compensation.

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SUMMARY OF ARGUMENT

The Line Item Veto Act raises a constitutional question

of first impression on which the amicus curiae does not take a

position. Rather, this brief is being filed as a corrective to the

seriously flawed reasoning of the district court, which would

invalidate the Line Item Veto Act under this Court’s

nondelegation doctrine, but permit “vast” delegation of

legislative authority to unelected federal agencies. Amicus

curiae firmly believes that the practice of delegation of

lawmaking authority to agencies is a serious threat to our

constitutional order. Any opinion of this Court which followed

the district court’s reasoning would cause serious harm to the

liberty-preserving structure of the Constitution.

The nondelegation doctrine is integral to the

Constitution’s purpose of protecting liberty. If embraced by

this Court, the district court’s reasoning would undermine

legislative accountability and therefore the very power of the

people to check the overreaching actions of their government.

This brief explains the errors of the district court’s

interpretation of the nondelegation doctrine and provides an

overview of the constitutional significance of the nondelegation

doctrine.

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ARGUMENT

I. THE DISTRICT COURT’S REASONING WOULD

EVISCERATE THIS COURT’S NONDELEGATION

DOCTRINE IN THE REGULATORY CONTEXT

Amicus curiae does not take a position on the Line Item

Veto Act’s constitutionality.? The constitutionality of the Act is

an issue of first impression that does not directly affect the

interests of amicus curiae. Rather, this brief is being filed for

the purpose of placing the district court’s reasoning regarding

delegation in constitutional perspective.

Of primary concern to amicus curiae is the district

court’s reasoning regarding congressional delegation of

lawmaking authority. If affirmed by this Court, the district

court’s interpretation of the nondelegation doctrine would (1)

erase much of this Court’s nondelegation doctrine in the

regulatory context and (2) place the Court’s imprimatur on

massive delegations of Congress’ constitutionally appointed

lawmaking authority to unelected and unaccountable agencies.

What the district court says of the Line Item Veto Act applies

at least as much to Congress’ persistent delegation of

lawmaking authority to unaccountable and unelected agencies

who “make law” simply by publishing rules in the Federal

Register.

While the Line Item Veto Act may be an example of

Congress avoiding its difficult lawmaking responsibilities, the

widespread practice of delegating substantial policy decisions

to federal agency lawmaking certainly is. The district court

characterized the Act as follows:

? Nor does amicus curiae take a position on the standing and ripeness

issues presented in this case.

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The Line Item Veto Act * * * hands off to the

President authority over fundamental legislative

choices. Indeed, that is its reason for being. It

spares Congress the burden of making those

vexing choices of which programs to preserve

and which to cut. Byrd v. Raines, slip op. 34-35,

Civ. No. 97-0001 (D.C. April 10, 1997).

On the district court’s own reasoning, delegation to agencies

violates the Constitution far more obviously than does the Line

Item Veto Act.

Unfortunately and illogically, the district court

erroneously narrowed application of the nondelegation doctrine

in the regulatory context:

It has long been held that Congress may --

indeed, of necessity, must -- delegate vast

authority to the Executive Branch of

government to make and to change rules for the

governance of national affairs, so long as they

are in furtherance of the will of Congress. Jd. at

29.

The district court seems to assume that agency delegation is

shielded from constitutional scrutiny while delegation to the

President himself is not. Yet, delegation to agencies is no less

constitutionally suspect. Amicus curiae specifically challenges

the view that the power to “make and change rules for the

governance of national affairs” “may” or “must” be delegated

to the Executive Branch. Instead, in its last term, this Court

held:

The intelligible principle rule seeks to enforce

the understanding that Congress may not

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delegate the power to make laws and so may

delegate no more than the authority to make

policies and rules that implement its statutes.

Loving v. United States, 517 U.S. ___, 116 S.

Ct. 1737, 1750 (1996).

The district court’s erroneous reasoning has its roots in

the expansive interpretation of Congress’ power to delegate

lawmaking to the Executive Branch found in the government’s

brief below. See Memorandum of Points and Authorities in

Support of Defendants’ Alternative Motion for Summary

Judgment and in Opposition to Plaintiffs’ Motion for Summary

Judgment at 19-23. Interestingly, the Senators and

Representatives challenging the Act did not focus the district

court’s attention upon this Court’s nondelegation doctrine

prohibiting the abdication of lawmaking responsibility, but

rather took a more formalistic approach under Article I. Indeed,

neither party’s brief illuminated the lurking delegation

problems that lay in the path of the district court’s decision.

Hence, the necessity of this amicus curiae brief at this stage.

The district court’s logic is unpersuasive. It is not true

that courts must be more tolerant when Congress delegates the

power to make laws or authorizes expenditures than when it

delegates the power to repeal laws or expenditures. The

Framers crafted Article I, in fact, to make it more difficult for

government to act by requiring that new laws and new

expenditures be passed only after the House, Senate, and the

President take responsibility for them. Under the district

court’s reasoning, however, such accountability is only

necessary to stop regulation and spending, but not to initiate it.

The district court’s reasoning simply turns the nondelegation

doctrine on its head. If the Line Item Veto Act distorts the

Framers’ deliberately chosen scheme of lawmaking, then the

practice of delegating legislative prerogatives to unaccountable

6

and unelected agencies surely does so as well. Thus, regardless

of whether the lower court reached the correct result in this

case’, its stated reasoning contravenes the reasonable

application of this Court’s “intelligible principle” rule in many

other instances. See Mistretta v. United States, 488 U.S. 361,

371-3 (1989) citing J. W. Hampton Jr. & Co. v. United States,

276 U.S. 394, 409 (1928); see also Loving v. United States, 517

U.S.__, 116 S. Ct. 1737, 1743 (1996). Were this Court to

embrace the district court’s reasoning, it would seriously

undermine the Framers’ intent to require elected legislators to

take responsibility for the laws that government imposes.

Il. REPRESENTATIVE DEMOCRACY DEMANDS

ACCOUNTABILITY OF THE LEGISLATIVE

BRANCH TO THE PEOPLE

Liberty is possible only in a representative democracy

where the legislators are directly accountable to the electorate.

Congress must be prevented from deflecting its unique

responsibility to make the country’s hard policy choices --

through legislation -- if the “democracy” half of representative

democracy is not to become a charade. As Professor John Ely

has stated, “There can be little point in worrying about the

distribution of the franchise and other personal political rights

unless the important policy choices are made by elected

officials.” DEMOCRACY AND DISTRUST: A THEORY OF

JUDICIAL REVIEW (1980) at 133.

*If the Line Item Veto Act is unconstitutional, there may still be

constitutional means to achieve the same end. For example, the expedited

rescission proposal rejected by Congress. S. Rep. No. 9, 104th Cong., Ist

Sess., at 15 (1995) (referring to S. 14). Amicus curiae does not take a

position on the possibility that Congress might achieve the objectives of the

Act (were the Act held unconstitutional) through lawmaking regarding the

impoundment power.

7

Without the Constitution’s accountability mechanism,

elected officials naturally would be tempted to evade

accountability. As John Adams put it in 1776, “As a good

government is an empire of laws, the first question is, how shall

the laws be made.” Too often, legislative instructions from

Congress to agencies typically amount to mere generalized

recitations of competing and conflicting policy objectives,

without any guidance as to how they should be reconciled --

for example, the environment should be made clean but without

a loss of jobs. Schoenbrod, GOALS STATUTES OR RULES

STATUTES: THE CASE OF THE CLEAN AIR ACT, 30 UCLA L.

Rev. 740 (1983). When constituents complain to Congress

about regulations that are allegedly too weak or too strong,

legislators blame the agency; the regulations themselves rarely

come up for a vote in Congress. Our elected lawmakers may

thus cast themselves as heroes and their own creations -- the

regulatory agencies -- as scapegoats. The broad delegation of

legislative authority to federal agencies is ersatz democracy.

The Constitution requires this Court to leave the

nation’s policy choices to Congress. However, this Court holds

the constitutional obligation to invalidate those laws that are the

result of the Congress’ abdication of its appointed

constitutional role. See United States v. Lopez, 514 U.S. 549,

115 S. Ct. 1624, 1639-40 (1995) (Kennedy, J., concurring);

Miller v. Johnson, 515 U.S.__, 115 S. Ct. 2475, 2491 (1995).

In Justice Rehnquist’s words,

While the presumption of constitutionality is

due to any act of a coordinate branch of the

Federal Government . . ., it is this Court which

is ultimately responsible for deciding challenges

to the exercise of power by those entities.

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City of Rome v. United States, 446 U.S. 156, 207 (Rehnquist,

J., dissenting). That role is integral to the preservation of liberty

when this Court is asked to consider whether the structure of

the Constitution has been violated. “The Framers recognized

that, in the long term, structural protections against abuse of

power were critical to preserving liberty.” Bowsher v. Synar,

478 U.S. 714, 730 (1986). As the court below noted, this Court

has “ ‘not hesitated to invalidate provisions of law which

violate [the separation of powers.]’” Byrd v. Raines, slip op.

at 21 (quoting Metropolitan Washington Airports Authority v.

Citizens for the Abatement of Airport Noise, Inc., 501 U.S. 252,

273 (1991).

Both democratic accountability and liberty are undercut

when Congress does not take affirmative responsibility for

making laws. The nondelegation doctrine protects democratic

accountability and therefore liberty. See Arizona v. California,

373 U.S. 546, 626 (1963) (Harlan, J., concurring). This

fundamental means of protecting liberty antedates, undergirds,

and complements the protection of rights later enumerated in

the Bill of Rights. David Schoenbrod, POWER WITHOUT

RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE

THROUGH DELEGATION at 28-31 (1993); Marci A. Hamilton,

THE FIRST AMENDMENT’S CHALLENGE FUNCTION AND THE

CONFUSION IN THE SUPREME COURT’S CONTEMPORARY FREE

EXERCISE JURISPRUDENCE, 29 Ga. L. Rev. 81, 86-90 (1994).

9

CONCLUSION

This Court is mghtly reluctant to interfere with

legislative outcomes and especially social policy choices.

There should be no similar reluctance, however, to alert

Congress of its non-delegable role to make those choices, by

invalidating those laws in which Congress has abdicated its

constitutionally designated lawmaking _ responsibility.

Accordingly, we urge the Court to reject the district court’s

expansive reading of Congress’ power to delegate lawmaking

power to agencies and to craft a rule against delegation that

ensures accountability and preserves liberty.

Respectfully submitted,

G. William Frick*

Philip A. Cooney

American Petroleum Institute

1220 L Street, N.W.

Washington, D.C. 20005

202-682-8240

Counsel for Amicus Curiae

May 1997 *Counsel of Record