America First Amicus Brief Proposes 3 ‘Clarifications’ to Restrict Chevron Deference

Judicial deference to agency legal interpretations “sits uncomfortably” with the Constitution’s separation of powers, said America First Legal Foundation in a U.S. Supreme Court amicus brief Wednesday (docket 22-451) in support of the petitioners in Loper Bright Enterprises v. Raimondo. The petitioners are commercial fishing companies urging SCOTUS to “jettison” the Chevron doctrine (see 2307180033).

The power to make the law is vested in Congress by Article I, while the power to interpret the law is vested in the judiciary by Article III, and the power to enforce the law is vested in the executive branch by Article II, said the foundation. The legislative power “was long considered the most dangerous,” but increasingly, executive agencies “make policy and law under the guise of interpreting statutes,” it said.

When courts defer to agency interpretations, “they bless a union of legislative and executive power that unhinges the Constitution, simultaneously ceding both Article I and Article III power” to the executive branch, said the foundation. Nearly two dozen amicus briefs have been filed during the life of the Loper Bright petition, virtually all in support of the petitioners, advocating for various forms of restricting Chevron agency deference or eliminating the doctrine outright.

Several solutions have been proposed to address the problems arising from Chevron deference, said the foundation. One “is to take seriously the Article I limits on delegating power” to the executive branch, it said. Another, as in the Loper Bright case, “is to at least narrow the rule of deference by Article III courts” that SCOTUS developed in its 1984 Chevron decision, it said.

The first of the three “clarifications” the foundation proposes is that SCOTUS “clarify that statutory silence does not equal ambiguity justifying Chevron deference,” said the brief. Statutory silence means the federal government hasn’t asserted its limited powers to regulate the people and Congress hasn’t delegated such power to an agency, it said. “Absent an affirmative delegation of authority, the presumption should be that statutory silence means that an agency has no authority to limit freedom,” it said.

But the presumption “increasingly used” by the D.C. Circuit, departing from a long line of “contrary cases,” is that broad statutory schemes “let the agency regulate willy-nilly across the whole subject area,” not just in the “gaps,” said the foundation. That presumption can “exacerbate the tension” between the Constitution and Chevron, it said. It also disregards the Supreme Court’s repeated instructions to use “traditional tools of statutory interpretation” -- including “canons” like expression unius (the expression of one thing is the exclusion of the other) -- “before finding an ambiguity to interpret or a gap to be filled by the agency,” it said. SCOTUS “should correct this error,” it said.

The foundation also proposes SCOTUS should tailor Chevron so it shouldn’t apply “outside of notice-and-comment rulemakings specifically authorized by Congress,” said the brief. Notice-and-comment procedures ensure the involvement of the people in lawmaking, “thereby alleviating the constitutional problem of agency policymaking outside of Article I’s strictures,” it said. Requiring these procedures “makes sense as an interpretive matter,” it said. Congress is “more likely to have delegated authority when it knows that the agency will be required to follow adequate procedures ensuring reasoned consideration,” it said.

Third, the foundation proposes that SCOTUS recognize that Chevron deference “is quite different from the proper deference shown” to the executive branch’s “exercise of its traditional Article II powers over foreign affairs, the military, immigration, and the like,” said the brief. That’s especially so when Chevron “enables agencies to impose policy regulations on private entities under the guise of Congress’s Commerce Clause power, it said.

The Constitution assigns Congress, not the executive branch, power over interstate commerce, said the foundation. “But too often, private entities find themselves governed by agency policymaking regulations rather than congressional statutes,” it said. SCOTUS “should clarify this important distinction and adopt a presumption against deference to agency policymaking regulations issued under Congress’s Commerce Clause authority,” it said.