AMICUS BRIEF: Mayfield v Department of Labor

No. 23-50724

In the United States Court of Appeals for the Fifth Circuit

ROBERT MAYFIELD, AND R.U.M. ENTERPRISES, INCORPORATED, Plaintiffs-Appellants, v.

UNITED STATES DEPARTMENT OF LABOR, AND MARTIN WALSH, SECRETARY, U.S. DEPARTMENT OF LABOR, Defendants-Appellees.

On Appeal from the United States District Court for the Western District of Texas, Austin No. 1:22-cv-792-RP

BRIEF OF AMICI CURIAE ADVANCING AMERICAN FREEDOM; CALIFORNIA POLICY CENTER; CENTER FOR POLITICAL RENEWAL; EAGLE FORUM; GLOBAL LIBERTY ALLIANCE; INTERNATIONAL CONFERENCE OF EVANGELICAL CHAPLAIN ENDORSERS; MEN AND WOMEN FOR A REPRESENTATIVE DEMOCRACY IN AMERICA; MIDWEST LAW CENTER; TIM JONES, FORMER SPEAKER, MISSOURI HOUSE, CHAIRMAN, MISSOURI CENTER-RIGHT COALITION; NATIONAL CENTER FOR PUBLIC POLICY RESEARCH; PROJECT21 BLACK LEADERSHIP NETWORK; RIO GRANDE FOUNDATION; ROUGHRIDER POLICY CENTER; SETTING THINGS RIGHT; 60 PLUS ASSOCIATION; STUDENTS FOR LIFE OF AMERICA; AND YOUNG AMERICA’S FOUNDATION IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL

J. MARC WHEAT

Counsel of Record

ADVANCING AMERICAN FREEDOM, INC. 801 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 780-4848

MWheat@advancingamericanfreedom.com

January 25, 2024

Counsel for Amici Curiae

STATEMENT OF INTERESTED PERSONS FIFTH CIRCUIT RULE 29.2

The undersigned counsel certifies that the following persons and entities have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. J. Marc Wheat, General Counsel for Advancing American Freedom, Amicus Curiae. The undersigned counsel also certifies that Amici Curiae, Advancing American Freedom; California Policy Center; Center For Political Renewal; Eagle Forum; Global Liberty Alliance; International Conference Of Evangelical Chaplain Endorsers; Men and Women for a Representative Democracy in America; Midwest Law Center; Tim Jones, Former Speaker, Missouri House, Chairman, Missouri Center-Right Coalition; National Center For Public Policy Research; Project21 Black Leadership Network; Rio Grande Foundation; Roughrider Policy Center; Setting Things Right; 60 Plus Association; Students For Life of America; and Young America’s Foundation are nonprofit corporations that have no parent corporations, are not publicly held corporations, and do not issue stock.

DATED: January 25, 2024 /s/ J. Marc Wheat

J. Marc Wheat General Counsel for

Advancing American Freedom

TABLE OF AUTHORITIES

Cases

B&B Hardware, Inc. v. Hargis Indus., 575 U.S. 138 (2015) ..............................................................................................21

Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984) ............................................................. 3, 5, 6, 7, 9, 10, 19, 20

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015) ................................................................................................9

INS v. Chadha, 462 U.S. 919 (1983) ..............................................................................................12

Marbury v. Madison, 5 U.S. 137 (1803) ..................................................................................................20

McDonald v. Chicago, 561 U.S. 742 (2010) 14

Obergefell v. Hodges, 576 U.S. 644 (2015) .............................................................................................. 11

Oregon Restaurant and Lodging Ass’n v. Perez, 843 F.3d 355 (9th Cir. 2016) ...................................................................................9

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015) ................................................................................................21

PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75 (C.A.D.C. 2018) ................................................................................17

Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) ..........................................................................................17

Stern v. Marshall, 564 U.S. 462 (2011) ..............................................................................................21

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..............................................................................................14

Constitutional Provisions and Statutes

U.S. Const. art. I ...................................................................................... 5, 17, 18, 20 U.S. Const. art. II .............................................................................................. 14, 17 U.S. Const. art. III ............................................................................................. 18, 20 U.S. Const.

Authorities

1 W. Blackstone, Commentaries on the Laws of England 119 (1765) .................... 11

John Adams Excerpt from Thoughts on Government, https://www.senate.gov/artandhistory/history/common/generic/exerptthoughts-on-government-adams-1776.htm (last visited Jan. 24, 2024) ...............16

Aristotle, Politics, Book III, 1287a (Benjamin Jowett, trans. 1885) (350 BC) .......13

As Partisan Hostility Grows, Signs of Frustration With the Two-Party System, PEW RESEARCH CENTER (Aug. 9, 2022) https://www.pewresearch.org/politics/2022/08/09/as-partisan-hostility-growssigns-of-frustration-with-the-two-party-system/ 3

Randy E. Barnett, Our Republican Constitution (1st ed. 2016) ..............................14

Nathaniel Chipman, Sketches of the Principles of Government (Philip B. Kurland and Ralph Lerner eds., Liberty Fund 1987) (1793) 20

Thomas Jefferson, Notes on the State of Virginia, Query XIII (1853) ....................................................................................................... 12, 16, 19

John Adams to Samuel Adams, 18 Oct. 1790 (Philip B. Kurland and Ralph Lerner eds., Liberty Fund 1987) ...........................................................................12

Jeffrey M. Jones, Americans Trust Local Government Most, Congress Least, GALLUP (OCT. 13, 2023) https://news.gallup.com/poll/512651/americanstrust-local-government-congress-least.aspx ...........................................................3

Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118 (2016) ................................................................................................................7, 20

C.S. Lewis, The Scewtape Letters (MacMillan Publishing Co. 1961) (1942) ..... 3, 4

John Locke, Second Treatise on Government (C.B. Macpherson ed., 1980) .......... 11

Montesquieu, Spirit of the Laws (Thomas Nugent trans. 1752) (1748) 12, 15, 16

Cass R. Sunstein, Chevron as Law, 107 Georgetown Law J. 1613 (2019) .............20

The Declaration of Independence para. 2 (U.S. 1776) ........................................5, 10

The Federalist No. 10 (Clinton Rossiter ed., 1999) ...................................................2

The Federalist No. 45 (Clinton Rossiter ed., 1999) 19

The Federalist No. 47 (Clinton Rossiter ed., 1999) .................................... 15, 16, 17

The Federalist No. 48 (Clinton Rossiter ed., 1999) ...................................................2

The Federalist No. 51 (Clinton Rossiter ed., 1999) .......................................... 13, 18

The Federalist No. 71 (Clinton Rossiter ed., 1999) .................................................16

Clement Walker, Relations and Observations, Historicall and Politick Upon the Parliament Begun Anno Dom. 1640 (Philip B. Kurland and Ralph Lerner eds., Liberty Fund 1987) (1648) 15

STATEMENT OF INTEREST OF AMICI CURIAE 1

Advancing American Freedom (AAF) is a nonprofit organization that promotes and defends policies that elevate traditional American values, including the uniquely American idea that all men are created equal and endowed by their Creator with unalienable rights to life, liberty, and the pursuit of happiness. AAF believes, as did America’s Founders, that the separation of government powers is essential to ensuring the promises of the Declaration of Independence to all Americans.

Amici, California Policy Center; Center for Political Renewal; Eagle Forum; Global Liberty Alliance; International Conference of Evangelical Chaplain Endorsers; Men and Women for Representative Democracy in America; Midwest Law Center; Tim Jones, Former Speaker, Missouri House, Chairman, Missouri Center-Right Coalition; National Center for Public Policy Research; Project21 Black Leadership Network; Rio Grande Foundation; Roughrider Policy Center; Setting Things Right; 60 Plus Association; Students for Life of America; and Young America’s Foundation believe, as did America’s Founders, that the maintenance of

1 All parties received timely notice and have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part. No person other than Amicus Curiae and its counsel made any monetary contribution intended to fund the preparation or submission of this brief.

the separation of government powers into three co-equal branches is essential to ordered liberty.

INTRODUCTION

To be more than mere “parchment barriers,” 2 the Constitution’s limitations on government power must be respected by those who wield it, and the people must have at least some confidence that those officials will remain within Constitutional bounds. Otherwise, the government will devolve into the warring of opposing factions the Founders sought to avoid through the Constitution as Madison explained in Federalist 10. 3

Americans who do not trust those with whom they disagree and who do not trust the constitutional structures to limit the power of those with whom they disagree will see every political contest as existential. Factions believe that their rivals are untrustworthy. Where they also believe that, if elected, an opposing faction would wield unchecked power, it is easy to understand how such groups may easily be manipulated into the belief that losing an election is not an option. Polarized

2 The Federalist No. 48 at 276 (James Madison) (Clinton Rossiter ed., 1999).

3 The Federalist No. 10 at 45-46 (James Madison) (Clinton Rossiter ed., 1999) (“[I]t will be found at the same time, that other causes will not alone account for many of our heaviest misfortunes; and particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice, with which a factious spirit has tainted our public administration.”).

media and the publicity hounds who play to them have pushed Americans to increasingly distrust one another. Federal institutions, on the other hand, have earned the distrust of the People by those institutions’ failure to comply with the Constitution. Recent surveys bear out that mistrust. 4

This case, which concerns how a Dairy Queen franchise owner in Texas would like to incentivize the pay of his managers, is no dilly; it is a small matter in the Federal scheme of things. But it demonstrates why unconstitutional blurring of the separation of powers has led to the freezing of the body politic into brittle factions over the exercise of power. The Dairy Queen case is just one snowflake in the blizzard of cases because of the Supreme Court’s decision in Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Did Congress empower a cluster of Washington bureaucrats to prevent the development of skills among employees at a remote Dairy Queen? 5 Such absurd questions have created splits among the circuits and played a

4 Americans do not trust the federal government or one another. A 2023 Gallup survey found that the judicial branch was the most trusted of the branches of the federal government, with 9% saying they trusted the Judicial Branch a great deal and 40% saying they trusted it a fair amount. For the Executive, those numbers were 15% and 26%, respectively, and for the Legislative they were 2% and 30%. Jeffrey M. Jones, Americans Trust Local Government Most, Congress Least, GALLUP (OCT. 13, 2023) https://news.gallup.com/poll/512651/americans-trust-local-governmentcongress-least.aspx.

Similarly, between 63% and 83% of Republicans and Democrats said that those of the other party were closed-minded, dishonest, or immoral, in one 2022 Pew Poll. As Partisan Hostility Grows, Signs of Frustration With the Two-Party System, PEW RESEARCH CENTER (Aug. 9, 2022) https://www.pewresearch.org/politics/2022/08/09/as-partisan-hostility-grows-signs-offrustration-with-the-two-party-system/.

5 Such bureaucratic rules are “conceived and ordered (moved, seconded, carried, and minuted) in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices.” C.S. Lewis, The

large part in the creation of the onrushing dystopia foreseen in Federalist 10. A return to the Constitution and its competing branches will be a necessary step toward cultivating a political ecosystem conducive to the flourishing of liberty.

This case concerns a Dairy Queen franchise owner, Robert Mayfield, who wishes to establish a payment structure for his managers that rewards high performance. Mayfield v. United States Dept. of Labor, 1:22-cv-00792-RP at 5 (W.D. Tex. September 20, 2023). Instead, as a result of the Department of Labor’s (“DOL”) salary requirements, he is forced either to pay a certain minimum salary or pay them on an hourly basis only Id The Fair Labor Standards Act generally requires employers to pay at least a minimum wage and to provide a minimum overtime pay as a percentage of an employee’s base wage rate. See 29 U.S.C. §§ 206(a)(1), 207(a)(1) However, the compensation structure of those working in a “bona fide executive, administrative, or professional [(“EAP”)] capacity,” is exempt from the minimum hourly wage and overtime employment requirement, giving employers and employees greater freedom to craft compensation packages that suit the needs of the situation. 29 U.S.C. § 213(a)(1). In this case, the DOL promulgated a rule that conditioned EAP employees’ exemption from the minimum wage and overtime requirements on such employees being paid on a salary basis and on that salary being at least $684 per week. Mayfield, 1:22-cv-00792-RP at 4 (citing 84 Fed. Reg. at Screwtape Letters at viii (MacMillan Publishing Co. 1961).

51238). Because the rule is inconsistent with the statutory language, its adoption constituted an Executive usurpation of the legislative power reserved to Congress in Article I of the Constitution.

Facing a challenge to its statutory authority to promulgate this rule, the DOL has sought shelter in Chevron deference, hoping that its extra-congressional legislation will be rubber-stamped by a deferential judiciary. The district court in this case, under the Chevron doctrine, wrongly deferred to the agency’s interpretation of the statute. More fundamentally, such judicial deference to a coequal branch’s interpretation of the law is an unconstitutional delegation of duty.

The purpose of government is to “secure” the rights with which all people are “endowed by their Creator.” The Declaration of Independence para. 2 (U.S. 1776).

As the Founders understood from their reading of history, however, governments are frequently a source of those rights’ violation. For decades, the Chevron doctrine has allowed the administrative state to overstep the limits on government power that “[w]e the People” established in the Constitution for the preservation of our liberty. The People established the Constitution to constrain the power of government officials so that those officials could effectively protect the rights of the people while limiting the exercise of power such that they would be less likely to threaten those very rights. There are no minor excursions beyond those boundaries. Every step over those lines, even every attempt to reach out beyond them weakens them, threatening

liberty. Every instance, great and small, of judicial deference to Executive interpretation of the law adds fuel to the fire of American’s distrust of governmental institutions. Skepticism of the government is essential to liberty, but outright mistrust of Federal institutions is likely to prove fatal.

The history and philosophy that contextualize and ground the Constitution demonstrate that judicial deference to the Executive Branch’s interpretation of statutory law is inconsistent with the constitutionally established separation of powers. Governments exist to protect individual rights but are themselves a threat to those rights. For that reason, the Constitution divides federal power among the Legislative, Executive, and Judicial Branches so that these competing powers could act as a check on one another. When one branch defers to another in an area reserved by the Constitution to the deferring branch, it exceeds the constitutional limitations on its authority. No government agent or agency has the authority to change the law outside of the constitutionally prescribed method for doing so. Because a DOL win in this case would require ceding both legislative and judicial power to the Executive, the Court should reverse the district court and rule for PlaintiffsAppellants.

ARGUMENT

The district court in this case ruled for the DOL, deferring to its interpretation of the relevant statutory law under Chevron. Mayfield, 1:22-cv-00792-RP at 10, 12. The test established in Chevron has two steps. First, courts ask whether Congress has “spoken to the precise question at issue.” Chevron, 467 U.S. at 842-43. If the answer is yes, then the court must follow the direction of Congress. Id . If the answer is no if “the statute is silent or ambiguous with respect to the specific issue” the court then decides “whether the agency’s [interpretation of the statute] is based on a permissible construction of the statute.” Id at 843. Given the nature of language, agencies can almost always make minimally plausible argument that the statute contains ambiguity on the relevant issue. Where ambiguity can feasibly be claimed, the court need only find the agency’s interpretation “plausible;” a very low bar. As Justice Kavanaugh noted, “when the courts defer, we have a situation where every relevant actor may agree that the agency’s legal interpretation is not the best, yet that interpretation carries the force of law. Amazing.” Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 HARV. L. REV. 2118, 2151 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).

I. The Language of the Fair Labor Standards Act is Silent Regarding a Salary Requirement and that Silence is Not an Invitation for the Department of Labor to Regulate.

The Fair Labor Standards Act (“FLSA”) “generally requires employers to pay their employees a federal minimum wage as well as overtime premium pay for hours above forty per workweek.” Mayfield, 1:22-cv-00792-RP at 2 (citing 29 U.S.C. §§ 206(a)(1), 207(a)(1)) Some types of employers, however, are exempt from these requirements, including “any employee employed in a bona fide executive, administrative, or professional [(“EAP”)] capacity . . . as such terms are defined and delimited from time to time by regulations of the Secretary [of Labor].” 29 U.S.C. § 213(a)(1). These terms are to be “defined and delimited from time to time by regulations of the Secretary.” Id. The Department of Labor has promulgated regulations determining when an employee is employed in such a capacity. Such employees “must perform primarily executive, administrative, or professional duties,” 6 must be paid on a salary rather than hourly basis, 7 and that salary must be at least $684 per week. 8

The plain meaning of “employed in [a particular] capacity,” is to be employed to carry out the types of duties associated with the sort of job in question. To be employed in a janitorial capacity is to be employed to clean. Likewise, to be

6 29 C.F.R. §§ 541.100–541.304.

7 29 C.F.R. §§ 541.600, 541.602.

8 29 C.F.R. § 541.600.

employed in an administrative capacity is to be employed to administrate. Those employed in an EAP capacity often earn more than those employed in different capacities. That EAP positions are often correlated with higher pay, however, does not mean that it is a legitimate indicator of EAP status. Dressing in more professional attire may also be correlated with such employment. That does not mean it is indicative of whether someone is employed in a professional capacity.

The language of the statute is straightforward. Where, “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. Further, “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron, 467 U.S. at 843 n.9.3. 9

Agencies may not “add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe [the Act’s] silence as exactly that: silence.” E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (interpreting Title VII). Yet here, the agency has added terms to the 9 “In other words, not all statutory silences are created equal. But you would never know that from the majority’s opinion.” Oregon Restaurant and Lodging Ass’n v. Perez, 843 F.3d 355, 360 (9th Cir. 2016) (O’Scannlain, J., dissenting from denial of rehearing en banc) (contrasting statutory silence that precludes agency action with statutory silence that creates ambiguity for agency to resolve).

statutory requirements (namely the salary requirement for exemption), and the district court took that silence not only as ambiguous but as a clear delegation of power to the Secretary. The language of the statute cannot be a clear grant of authority to regulate where it is clearly the opposite. Thus, under Chevron, this Court must interpret the statute for itself. Regardless, however, this Court should interpret the statute for itself because the deference due agencies under Chevron is inconsistent with the history, purpose, and structure of the Constitution.

II. Governments Must be Subject to the Rule of Law if they Are to Fulfill Their Reason for Being: The Protection of the Rights of the People.

The founding generation understood the purpose of government to be the protection of the natural rights of the people. Because government can violate those rights, the Framers understood that government itself had to be restrained. The constitutional separation of powers was implemented as just such a protection.

A. The rights of the People pre-exist government

The rights of the People pre-exist government and come from man’s Creator. The Declaration of Independence, which imbues meaning into the Constitution, expresses the fundamental philosophy of American government: “Governments are instituted among Men,” to secure “certain unalienable rights,” which come from man’s Creator and among which “are Life, Liberty, and the pursuit of Happiness.”

The Declaration of Independence para. 2 (U.S. 1776). These provisions of the

Declaration of Independence “refer[] to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth.” Obergefell v. Hodges, 576 U.S. 644, 735 (2015) (Thomas, J., dissenting).

The Declaration, though perhaps revolutionary in its clarity and universality, was not espousing entirely new ideas. Rather, it echoes the reasoning of William Blackstone and John Locke, among many others. According to Blackstone, absolute rights are those “which are such as appertain and belong to particular men, merely as individuals or single persons.” 10 The Declaration shows its indebtedness to the ideas of Locke, who wrote, “no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business” are “made to last during his, not one another’s pleasure.” 11

The Constitution, “like the Declaration of Independence before it was predicated on a simple truth: One's liberty, not to mention one's dignity, was something to be shielded from not provided by the State.” Obergefell, 576 U.S. at 736 (Thomas, J., dissenting). The Ninth Amendment reinforces the idea that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. In other words, the

10 1 W. Blackstone, Commentaries on the Laws of England 119 (1765).

11 John Locke, Second Treatise on Government, § 6 at 9 (C.B. Macpherson ed., 1980)

people were to retain their pre-existing rights, both enumerated and unenumerated, under the new government.

B. The rights of the People are at all times threatened by human nature, whether in the hypothetical state of nature or under any government.

The Founders’ view of government “was rooted in a general skepticism regarding the fallibility of human nature.” See INS v. Chadha, 462 U.S. 919, 949 (1983). As John Adams wrote to Samuel Adams, “I think that [education in knowledge, virtue, and benevolence,] will confirm mankind in the opinion of the necessity of preserving and strengthening the dikes against the ocean, its tides and storms. Human appetites, passions, prejudices, and self-love will never be conquered by benevolence and knowledge alone, introduced by human means.” 12

In a state of anarchy, the rights are real but are subject to violation by the strong. Under a government, the rights of the People are real but are subject to the whims of those exercising governmental power. According to Montesquieu, “constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” 13 In thousands of years of recorded human history, that nature has not changed. 14

12 John Adams to Samuel Adams, 18 Oct. 1790 at 352 (Philip B. Kurland and Ralph Lerner eds., Liberty Fund 1987).

13 Montesquieu, Spirit of the Laws, § 11.4 (Thomas Nugent trans. 1752) (1748).

14 Thomas Jefferson, Notes on the State of Virginia, Query XIII, 136 (1853) at 130 (“Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time

The Founders were familiar with the abuse of government power. The “government [is] the greatest of all reflections on human nature[.]” 15 As Madison explained:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. 16

Yet someone must govern. Virtually no one would suggest that American government should be ruled by the one or the few. But the Framers also feared the tyranny of the majority. As Madison put it, while “[a] dependence on the people is, no doubt, the primary controul on the government,” “experience has taught mankind the necessity of auxiliary precautions.” 17

to guard against corruption and tyranny is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”).

15 The Federalist No. 51 at 290 (James Madison) (Clinton Rossiter ed., 1999).

16 Id.

17 Id See also, Aristotle, Politics, Book III, 1287a (Benjamin Jowett, trans. 1885) (350 BC) (“[H]e who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.”).

C. Government exists to protect rights but is also a potential source of their violation. This conundrum necessitates “a government of laws and not of men.”

Quis custodiet ipsos custodes? John Adams suggested the answer in the Massachusetts Constitution. Proper government does not impose the rule of one man, nor of the few or the many. Under proper government, the law must rule. See Mass. Const. pt. 1 art. XXX. Citing this provision of the Massachusetts Constitution, the Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) wrote that the idea of a person’s rights held “at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

The law that must rule is the Constitution. The Declaration describes the higher law upon which government is based, and the truths explicated therein, including the reality of “inalienable rights” that are “embedded in our constitutional structure.” McDonald v. Chicago, 561 U.S. 742, 807 (2010) (Thomas, J., concurring in part and concurring in the judgment). The Constitution, in turn, is “the supreme Law of the Land.” U. S. Const. art. VI, cl. 2. It is also “the law that governs those who govern [the people],” and “is put in writing so that it can be enforced against the servants of the people.” 18 Those who administer American government swear an oath to uphold and defend it. 19

18 Randy E. Barnett, Our Republican Constitution 23 (1st ed. 2016).

19 U. S. Const. art. II, § 1, cl. 7; U. S. Const. art. VI, cl. 3.

III. The Constitution Establishes the Separation of Powers as a Means of Ensuring the Rule of Law.

A. Belief in separation of powers was widespread at the founding and had significant philosophical precedent.

John Adams explained the purpose of a government of separated powers in the Massachusetts Constitution. Under the state constitution, the executive, judicial, and legislative organs of the state government may not exercise the powers of one another so that, “it may be a government of laws and not of men.” Mass. Const. pt.

1 art. XXX. In other words, the separation of powers is one of the fundamental solutions to the dilemma discussed above: the conflict between the need for government to protect rights because of human nature and the tendency of governments in which men rule to destroy the rights that the institution exists to protect. 20 For the Founders, the most important proponent of the separation of powers was Montesquieu. 21

20 The Founders’ recognition that the separation of powers protects the liberty of the people was already at least a century old at the time of the Founding. As Clement Walker wrote in the 1640s, “for any one man, or any Assembly, Court, or Corporation of men (be it the two Houses of Parliament) to usurpe these three powers: 1. The Governing power. 2. The Legislative power. 3. And the Judicative power, into themselves, is to make themselves the highest Tyrants, and the people the basest slaves in the world.” Clement Walker, Relations and Observations, Historicall and Politick Upon the Parliament Begun Anno Dom. 1640 at 314 (Philip B. Kurland and Ralph Lerner eds., Liberty Fund 1987) (1648).

21 The Federalist No. 47 at 269 (James Madison) (Clinton Rossiter ed., 1999) (“The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.”).

As Montesquieu wrote, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” 22 Further, “there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control,” and if it were, “joined to the executive power the judge might behave with violence and oppression.” 23 For all three powers to be exercised by the same person or body “would be an end of everything.” 24

The Founders shared Montesquieu’s understanding. As Jefferson wrote, “The concentrating [of powers] in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. . . An elective despotism was not the government we fought for.” 25 The founding generation’s view of separation of

22 Montesquieu, supra note 10, at § 11.6.

23 Id.

24 Id

25 Jefferson, supra note 11, at 128-29. See also, John Adams Excerpt from Thoughts on Government, https://www.senate.gov/artandhistory/history/common/generic/exerpt-thoughts-ongovernment-adams-1776.htm (last visited Jan. 24, 2024) (“A single Assembly is liable to all the vices, follies and frailties of an individual. Subject to fits of humour, starts of passion, flights of enthusiasm, partialities of prejudice, and consequently productive of hasty results and absurd judgments: And all these errors ought to be corrected and defects supplied by some controuling power.”); The Federalist No. 47 at 269 (James Madison) (Clinton Rossiter ed., 1999) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced

powers as essential to liberty was so strong that Federalist 47 addressed a major antifederalist critique of the proposed Constitution: that it did not separate powers enough. 26

B. The Framers infused the Constitution with their shared understanding of separation of powers.

The design of the Constitution directly reflects an understanding of government that sees it as both the protector of, and a threat to, individual liberty.

See PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 164 (C.A.D.C. 2018) (Kavanaugh, J., dissenting) (“To prevent tyranny and protect individual liberty, the Framers of the Constitution separated the legislative, executive, and judicial powers of the new national government.”).

Article I establishes the Legislative Branch and vests “all legislative Powers” of the federal government in “a Congress of the United States which shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1. Article II vests “the ‘executive Power’ all of it,” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020), in “a President of the United States.” U.S. Const. art. II, § 1.

the very definition of tyranny.”); The Federalist No. 71 at 401 (Alexander Hamilton) (Clinton Rossiter ed., 1999). (“The same rule, which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other.”).

26The Federalist No. 47 at 269 (James Madison) (Clinton Rossiter ed., 1999) (“One of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed violation of the political maxim that the legislative, executive, and judiciary departments ought to be separate and distinct.”).

Finally, Article III vests “the judicial Power of the United States . . . in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1. The judges of these courts “shall hold their Offices during good Behaviour,” and may not have their compensation reduced while in office. Id. The Constitution only departs from this strict separation in specific ways to create a system of checks and balances.

Those checks and balances were meant to work together with the separation of powers to ensure that each branch could protect its own power. According to Madison, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 27 He continued, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Id .

The Constitution enumerates specific powers that Congress may exercise and vests it with the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution,” its enumerated powers. U.S. Const. art. I, § 8, cl. 18. Those “powers not delegated to the United States by the Constitution, nor prohibited by it

27 The Federalist No. 51 at 289-90 (James Madison) (Clinton Rossiter ed., 1999)

to the states, are reserved to the states respectively, or to the people.” U.S. Const. amend. X. The powers that are delegated are not a blank check. 28

C. Chevron deference is inconsistent with the constitutional separation of powers and thus is inapplicable here.

When executive agencies’ interpretations of statutes or regulations are granted deference, they are exercising the judicial power of final interpretation. Thus, Chevron, in effect, allows agencies to supersede the powers of both Congress and the federal courts, and thus the constitutional division of power.

Under Chevron, agencies are allowed to make de facto amendments to statutory law. Congress passes a law the best reading of which is “A,” but which nonetheless is not perfectly clear. The relevant agency promulgates a regulation that depends on interpretation “B,” which may be clearly less consistent with the language of the statute than interpretation “A,” while still not so creative as to fall outside the bounds of the permissible. When challenged in court, the agency points to this ambiguity and argues that their interpretation is a reasonable one. Assuming the court applies Chevron and defers to the agency’s interpretation, interpretation “B,” the statutory law has effectively been amended. Thus, Chevron allows for an

28 The Federalist No. 45 at 260 (James Madison) (Clinton Rossiter ed., 1999) (“The powers delegated by the proposed constitution to the federal government, are few and defined.”). Further, those powers cannot then be delegated by one branch to another. Jefferson, supra note 11 at 136 (“Our ancient laws expressly declare that those who are but delegates themselves shall not delegate to others powers which require judgment and integrity in their exercise.”).

intentional or unintentional delegation of the legislative power reserved to Congress by Article I of the Constitution. As Justice Kavanaugh has noted, “[i]n many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the executive branch.” 29

Chevron also transfers the power to interpret the law from Article III courts to the executive branch. When the courts defer to agency interpretations of law, they abandon their constitutional responsibility. As Chief Justice John Marshall recognized, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). 30 Similarly, Justice Thomas has noted, “Those who ratified the Constitution knew that legal texts would often contain ambiguities. . .The judicial power was understood to include the

29 Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV L. REV. 2118, 2150 (2016) (reviewing Robert A. Katzmann, Reviewing Statutes (2014)). In response to Justice Kavanaugh’s description of Chevron, Professor Cass R. Sunstein writes, “There is an obvious mystery in this claim. Chevron seems to transfer authority away from courts, not from Congress. Justice Kavanaugh’s claim makes sense only if we see Chevron as allowing agencies to reject the best reading of congressional instructions which is not at all part of the Chevron framework, but which, on his understanding, is precisely what it does.” Cass R. Sunstein, Chevron as Law, 107 Georgetown Law J. 1613, 1616 n.12 (2019). But of course Chevron allows agencies to “reject the best reading of congressional instructions.” Chevron does not have a “best reading” test. It asks only whether the statute is ambiguous on the point at issue and, if so, whether the agency’s interpretation is permissible. Thus, Chevron plainly operates not only as a mechanism for shifting the interpretative power from the judiciary to the executive, but also as a means of shifting legislative power from Congress to the executive.

30 “To prevent both legislative and executive abuses, the intervention of an independent judiciary is of no small importance. To the judges, the ministers of this power, it belongs to interpret all acts of the legislature, agreeably to the true principles of the constitution, as founded in the principles of natural law.” Nathaniel Chipman, Sketches of the Principles of Government, at 333 (Philip B. Kurland and Ralph Lerner eds., Liberty Fund 1987) (1793).

power to resolve these ambiguities over time. Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119 (2015) (Thomas, J. concurring) (citations omitted); See also, B&B Hardware, Inc. v. Hargis Indus., 575 U.S. 138, 171 (2015) (Thomas, J., dissenting) (citing Stern v. Marshall, 564 U.S. 462, 482-83 (2011)) (“Under our Constitution, the ‘judicial power’ belongs to Article III courts and cannot be shared with the Legislature or the Executive.”).

In this case, the district court indeed abandoned its duty under the Constitution and allowed the DOL to usurp the power of Congress by enacting what, in effect, is an amendment to existing statutory law. Judicial review is an essential check on executive power. This Court should interpret the statute for itself or remand this case to the district court so that it may do so.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court and rule for Plaintiffs-Appellants.

/s/ J. Marc Wheat

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