QUESTION PRESENTED
Parties to this Brief Amicus Curiae address only Question 1:
Whether Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409, as interpreted by the Environmental Protection Agency (EPA) in setting revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, effects an unconstitutional delegation of legislative power.

TABLE OF CONTENTS

STATEMENT OF INTEREST	1

QUESTION PRESENTED	2

SUMMARY OF ARGUMENT — The EPA has usurped legislative power in violation of the non-delegation doctrine which must be cured by narrow statutory invalidation.	2

I.  	Standard setting is a “high” delegation.	3

II. 	The Court can rule narrowly, thus with measured effect.	4

III.	The Court should continue to recognize that the
	non-delegation doctrine acts against Congress.	8

IV.	The Appeals Court’s tentative answer to Question One	10

V.	Standard of Review	13

VI.	The Vitality of Non-Delegation	16

VII.Chevron begs Schechter —
	The Need for Non-Delegation	20

VIII.Separation of Powers Jurisprudence is, by nature and
	by design, Formalistic.	22

IX.	A narrow but firm decision will have
	limited, measured and necessary effects.	26

CONCLUSION — A narrow but firm holding is called for
				30

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. U.S.,
	295 U.S. 495 (1935)	4, 8, 16-21

Ashwander v. TVA, 297 U.S. 288 (1936)	7

American Trucking Associations, Inc., et al. v. U.S.E.P.A. et al.
	175 F. 3d 1027 (1999)	2, 3 n. 2, 5, 10 n. 7, 12

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984
			6, 13, 20, 21, 25

Clinton v. New York, 524 U.S. 417 (1998)	22-23

Dred Scott v. Sanford, 60 US (19 How.) 393(1857)	16

J. W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394 (1928)
			14 n. 11, 17

Industrial Union Dept. v. American Petrol. Inst.,
	448 U.S. 607 (1980)	14 n. 10, 16, 26

INS v. Chada, 462 U.S. 919 (1983)	22, 26

Mistretta v. U.S.,488 U.S. 361 (1989)	5, 19

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1	20

Opp Cotton Mills v. Administrator of W. and H. D.,
	312 U.S. 126 (1941)	18

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)	9

Touby v. U.S., 500 U.S. 160 (1991)	12 n. 9

U.S. v. Butler, 297 U.S. 1 (1936)	15 n. 11

U.S. v. Darby, 312 U.S. 100 (1941)	18

U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985)
			23, 24 n 13

TABLE OF AUTHORITIES cont.

U.S. v. Salerno, 481 U.S. 739 (1987)	6

Wallace v. Bone, 286 S.E. 2d 79 (1982 N.C.)	22

Webster v. Reproductive Health Services,
	492 U.S. 490 (1989)	6, 7 n. 4, 8 n. 6

West Coast v. Parrish, 300 U.S. 379 (1937)	19

Yakus v. U.S., 321 U.S. 414 (1944)	16

U.S. Constitution and Codes

U.S. Constitution, Art. I, Sec. 7	23
U.S. Constitution, Art. I, Sec. 8	20

Administrative Procedures Act
		5 U.S.C. § 706	15
Clean Air Act, 42 U.S.C. 7401 et seq	2
	Section 109, § 7409	2, 5, 10, 11 n. 7, 30
	Section 110, § 7410	3 n. 2
	Section 181, § 7511	27
			§ 7607	15
Clean Air Act Amendments of 1990,
	Pub. L. No. 101-549, 104 Stat.2399	27
Clean Water Act, 33 U.S.C. 1251 et seq
	Section 404, 33 U.S.C. § 1344	24 n. 13
Fair Labor Standards Act of 1938
	52 Stat. 1060	19
Line Item Veto Act, 2 U.S.C §691 et seq	22
			§691	22
National Industrial Recovery Act of June 16, 1933
	 48 Stat.195		17
Regulatory Flexibility Act
	5 U.S.C. § 601	4 n. 3, 11 n. 7, 26
Sentencing Reform Act of 1984
	28 U.S.C. § 994	5
Small Business Regulatory Enforcement Fairness Act,
	Pub. L. No. 104-121, tit. II, 110 Stat. 857-74	11 n. 7

TABLE OF AUTHORITIES cont.

Federal Register
	
	62 Fed. Reg.
		§ 38,688	13
		§ 38,702/2	3 n. 2
		§ 38,868/3	11 n. 7
		§ 38,887/2-3	3 n. 2

Miscellaneous

Breyer, Stephen, Breaking the Vicious Cycle - Toward
	Effective Risk Regulation, Harvard University Press,
	Cambridge, MA. (1993)	25 n. 14

Breyer, Stephen, Regulation and its Reform, Harvard Unviversity Press, Cambridge, MA (1982)	14 n. 11, 27 n. 15

Breyer, Stephen, The Legislative Veto After Chada,
		72 Georgetown L. J. 785 (1984)	24, 27 n. 15

Davis, Kenneth Culp, A New Approach to Delegation,
	36 U. Chi. L. Rev. 712 (1969)	20, 25

Madison, James, Federalist No. 51	17

Scalia, Antonin, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511	12, 21

Schoenbrod, David, Power Without Responsibility-
	How Congress Abuses the People Through Delegation
	Yale University Press, New Haven, CT (1993)	29-30

In the Supreme Court of the United States

No. 99-1257

Carol M. Browner, Administrator of
The Environmental Protection Agency,
et al., petitioners,
v.
American Trucking Associations, Inc., et al. Respondents.

On Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit

BRIEF AMICUS CURIAE
PEOPLE FOR THE USA and
THE ALLIANCE FOR AMERICA

STATEMENT OF INTEREST

People for the USA and The Alliance for America
(“ the Parties “)  are non-profit organizations with the stated goals of promoting sustainable resource development, multiple use of public lands, and strong property rights consistent with the U.S. Constitution.  Both organizations are characterized by individual membership and also act as national umbrellas for other groups throughout the country that share these goals.  Membership under the umbrella of the two groups runs to more than two million people.  
Executive and agency actions potentially representing significant conflict with the non-delegation ideal directly affect the Parties’ efforts at achieving their stated goals, to the detriment of their memberships and often to the detriment of entire rural communities in which many members live or recreate.  The Parties appear before the Court to encourage the strong, but narrow, measured step which it urges in this matter.
[Page 2]
Parties appreciate that Congress, both generally, and to clarify the intent of the statutory authority at issue in the present case, must strike a delicate balance between potential health effects and burdens to other aspects of the public welfare measured in different terms.  The Parties will be affected by the outcome of this case in controversy, which will establish not the ozone and particulate matter standards themselves, but the entity to appropriately establish such standards.  The larger meaning for the Parties is that the Court, in accepting the narrow result sought by respondents, will  reaffirm the vitality of a relevant doctrine which has been unduly relegated to the judicial backbench.  The appropriate outcome urged by the Parties is a measured step in affirming the constitutional ideal of separate, identified powers for each of three distinct branches of government.

QUESTION PRESENTED

The Parties address only Question 1:
Whether Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409, as interpreted by the Environmental Protection Agency (EPA) in setting revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, effects an unconstitutional delegation of legislative power.
The Parties believe an affirmative answer to this question, as they urge, renders moot the subsequent two questions accepted by the Court on certiorari from the United States Court of Appeals for the District of Columbia Circuit in the case of American Trucking Associations, Inc., et al. v. U.S.E.P.A. et al., 175 F.3d 1027 (“Trucking”).

SUMMARY of ARGUMENT - The EPA has usurped legislative power in violation of the non-delegation doctrine which must be cured by narrow statutory invalidation
.
The argument in this case is not one of statutory, but constitutional, interpretation.  The Parties argue that because EPA is attempting to conform its interpretation of the statute to the Constitution, there is no protection for, or deference to, agency expertise as to its authority or limitations pursuant to
[page 3]
the Constitution.  The Parties urge that this Court see beyond the implicit nostrums of petitioners’ camp against judge-made law and recognize that the matter at issue is indeed which branch of government is the appropriate body to establish standards in pursuit of which an agency sets rules.  Under the particular circumstances where discretionary bounds are inadequate to address the factual setting of the rulemaking at issue, the standards or clear bounds of discretion should be set by Congress.  It is EPA inappropriately usurping the lawmaking function here; and the solution is not for the judiciary to make the law, but for the Court to remand this function to Congress, in the specific instance at hand, through narrow statutory invalidation.

I. Standard Setting is a “high” Delegation

Indeed, in disavowing any connection between the NAAQS and its implementation , the Parties believe EPA sets the standard apart as preeminently executive-lawmaking (quasi-
[page 4]
legislating), not law enforcing.  The Parties argue that this is axiomatic and heightens the very likelihood of an unconstitutional delegation, i.e., the delegation of setting the NAAQS is a more extensive one than the delegation of NAAQS implementation.  Applying a similar rationale to a pattern of enforcement against individual parties might withstand a non-delegation test that the standards presently challenged do not, e.g., EPA focusing enforcement resources not on the entire range of values representing a violation of some standard, but on that range which it deems represent the preponderance of the regulated risk.
EPA having thus bifurcated or distinguished its actions under the statute at issue, the Parties disagree with Massachusetts and New Jersey (MA & NJ) that this is not a case “in which the entity to whom authority has been assigned exercises nothing but the lawmaking function”, MA & NJ Brief, p. 35 .  At issue is whether this delegated lawmaking function of setting standards is effectively bounded and thus constitutionally acceptable quasi-legislating.
Petitioners and their Amici argue that, since the non-delegation line established by the Court in A.L.A. Schechter Poultry Corp. v. U.S. , 295 U.S. 495 (1935), this Court and others have rightly approved increasingly broad delegations.  That is, however, a different measure than the one the Parties describe as distinguishing the “height” of the particular delegation of standard setting.
[page 5]
By broader delegation, the petitioners’ camp appears to mean the drawing of greater numbers of specific personal and economic activities under the direct governance of administrative agencies rather than the legislature, and the allowance of delegations that have been general rather than specific in terms of grants of authority and bounds to constrain them, see, e.g., EPA Brief, p. 21 (“Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. (quoting Mistretta v. U.S., 488 U.S. 361, 372 (1989)) — in Mistretta this Court approved a broad delegation to set mandatory uniform sentencing guidelines for the entire country, but the standards were the sentences already set by Congress as codified in title 18 U.S.C.; and the discretion was not vague, seven relatively concrete factors were enumerated, see 28 U.S.C. 994 (c)).  The Parties urge, for the sake of clarity in discussion and jurisprudence, that this Court should distinguish even these two forms of expansion by characterizing the breadth of activities or actors affected as defining the “width” of the delegation, and the extent of abstract versus concrete bounds of discretion as defining the “vagary” of the delegation.  
The question of whether Section 109 of the Clean Air Act as interpreted by EPA effects an unconstitutional delegation of legislative power is one of degree measured in these several dimensions.  The Parties argue that the delegation here reviewed is ‘broad’, i.e., it could “send industry [and the Parties would add industrial society] not just to the brink of ruin but hurtling over it”, Trucking 175 F.3d at 1037; is ‘high’, i.e., it is an important choice of a social policy standard unrelated to the enforcement of that standard implicating, in EPA’s own view, the ethical dilemma of effectively deciding the acceptable number of “early deaths...[and] hospital admissions”, EPA Brief, p. 2; and is ‘vague’, the boundaries of discretion are established by the abstract concept of “requisite to protect the public health” ,“allowing an adequate margin of safety”, 42 U.S.C. § 7409 (b)(1).
[page 6]
II. The Court can rule narrowly, thus with measured effect.
     
Petitioner’s camp focuses arguments on the notion that the Act itself need not supply “determinate criterion” (see Brief of American Lung Association, p. 12-13, “Chevron...and other precedent of this Court recogniz[e] that Congress may legitimately write ambiguous [i.e., nondeterminate] statutes”.)  This defense is merely dispositive of the question of whether Section 109 is facially invalid.  Its line of reasoning simply defines why many delegations that may seem facially excessive may nonetheless stand without the specific circumstances of a case or controversy narrowing the question.  As articulated in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Id. at 524 (Justice O’Connor, concurring) (quoting U.S. v. Salerno, 481 U.S. 739, 745 (1987)).
The comfort that petitioners find in a general refusal by the courts to lay waste to the practice of delegating some function or authority to the Executive simply does not extend to protect them from review of a particular delegation in practice.  “The fact that the [relevant statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid”, Ibid; and conversely the fact that the statute might operate constitutionally under some “conceivable set of circumstances”, even if that were a majority of circumstances, does not universally insulate the statute from scrutiny.
To say, then, that under the precise circumstances here reviewed and relative to this particular rulemaking Section 109 is unconstitutional is not to say that it is now wholly or prima facie unconstitutional.  It is not to call into question other actions previously taken under Section 109 involving different facts.  Indeed, Justice O’Connor went quickly to the heart of the constitutional matter here at issue in Webster by invoking the doctrine of judicial restraint which implicitly supports Salerno, i.e., that “[n]either will [the Court] generally ‘formulate a rule
[page 7]
of constitutional law broader than is required by the precise facts to which it is to be applied’” Webster, 492 U.S. at 526 (quoting Ashwander v. TVA, 297 U.S. 288, 347) .  The Court has before it precise facts which the Parties argue demonstrate that “Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409, as interpreted by the Environmental Protection Agency (EPA) in setting revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, effects an unconstitutional delegation of legislative power”, first question presented on certiorari in the present matter (emphasis added).
The very specificity of the question accepted manifests the cited rule of judicial restraint.  No parties ask the court to leave these narrow circumstances and thus the Parties think the remedy to the question presented will be limited in effect to the rule here at issue.   This Court recognizes that a narrow holding is not synonymous with a timid one, and the Parties urge that this Court take a clear but measured step to reaffirm the vital doctrine of non-delegation which has seldom broken the surface of jurisprudence since Schechter, but has remained just beneath.
[page 8]
III. The Court should continue to recognize that the
	non-delegation doctrine acts against Congress.

We concur with Amicus Environmental Defense Fund et al (EDF) that the Court has “continued to view this [non-delegation] doctrine as a constraint on congressional — not administrative — action.”  There is, however, no precedent cited by EDF, nor is it mutually exclusive of the possibility, to suggest that execution of the statute may not eventually expose a contextual violation which hazards some precise portion of the statute in application.  Indeed, the vital constitutional doctrine which begs reaffirmation herein, as with many others, would have little meaning whatsoever if statutes may not be examined based on subsequent actions of the Executive because there exist some other “conceivable set of circumstances” which are constitutional.   It does not immunize the Executive for all applications of congressional authority.
EPA’s findings that ozone (definitely) and particulate matter (likely) are non-threshold pollutants were unanticipated by the discretionary limits set by the statute.  The fact that the
[page 9]
 statute provides for additional guidance from the Clean Air Scientific Advisory Committee (CASAC) in reality merely means that EPA may receive a policy endorsement for its defense of the standard it chose, but does not speak to whether the standard is within bounded discretion.  Put another set of parentheses around a parenthetical clause, and you still have a parenthetical clause.
Looking to the history of the statute, EDF proposes that one may glean limit to EPA’s discretion under Congress’ abstract standard by reference to Senate Report No. 91-1196 at 10 (1970).  EDF synthesizes a portion of the report to mean that “the purpose of the NAAQS is to protect particularly sensitive populations, not particularly sensitive individuals”, EDF Brief p.13.  There is some basis for such an interpretation, but EDF offers no evidence that EPA set the standard challenged herein pursuant to such guidance, or that it plans to apply similar logic to distinguishing sensitive populations and individuals in the future.
To all appearances, the precise facts of this case indicate a circumstantial breach of the non-delegation doctrine.  While Congress may surely make facially unconstitutional delegations of legislative power, EDF inaccurately argues that, though the doctrine is directed against Congress, it may not be called to effect by actions of the Executive.  The Parties analogize a prima facie statutory violation of the non-delegation doctrine as the legislative river flooding its constitutional banks, to paraphrase Justice Cardozo in Panama Refining Co. v. Ryan, 293 U.S. 388, 440 (1935).  It thus follows that if the river is not flooding, but is running high (as the Parties contend when viewing the nature of the delegation implicit in standard setting responsibilities) it is much easier for the agency to reach into the river and take legislative water from it.  The Parties think the D.C. Circuit mistakes the appropriate remedy to be some form of water treatment, rather than simply telling the agency to put the water back.
Here again, the Parties concur with Amicus EDF that an affirmative answer to the first question presented begs a remand to Congress, not the agency. See EDF brief p. 4 (“…the
[page 10]
 nondelegation doctrine simply does not have a ‘weak’ version that is served by setting aside regulations as well as a “strong” version that compels declaring statutes unconstitutional.”).  The Parties believe the confusion arises because the holding of the court below was both narrow and shallow.  The Parties urge this Court to hold narrowly with the D.C. Circuit but to discard the hesitancy of its approach.  Thus the Parties proceed to the discussion of how the appeals panel actually answered the first question presented.

IV. The Appeals Court’s tentative answer to Question One
 
The Parties argue that much of the confusion over properly invoking the non-delegation doctrine arises from an answer to question one incompatible with the precise facts of this case.  The D.C. Circuit’s ruling in the present matter effectively answers the question of whether EPA’s interpretation of Section 109 effects an unconstitutional delegation of legislative power, neither “yes” nor “no”, but rather “maybe”.
Here we distinguish the intelligible from the rational.  If an “intelligible principle” had been found in EPA’s interpretation of the statute by the appellate court, and EPA’s decision, regardless of how rationally defensible, fell outside the bounds of that principle, a remand to the Agency would be proper.  EPA has rejected or forsworn any obviously applicable intelligible principles corollary to the boundaries implied by “requisite to protect the public health”, “allowing an adequate margin of safety”, 42 U.S.C. 4709 (b)(1), which would properly bound its decisionmaking on non-threshold pollutants, e.g., zero-risk , or cost-benefit .
Additionally, EPA refuses to adopt the boundaries it proposes here by way of level of certainty and seriousness of
[page 11]
 effects.  It simply advances them as rational defenses of the standard but not controlling elements.  As stated above, EPA refuses another option, to state that the division it makes here articulates between sensitive individuals and sensitive populations, thus giving some measure of legislative history support to its discretion.  It defends these refusals as necessary to guard the prerogative of future administrators, but that does not explain why the current administrator will not find any determinate criteria that are binding even on her.  The Parties
[page 12]
 submit that constitutional examination of the question at issue quickly reveals that the present will of Congress is far more compelling than the imaginary predilections of a future executive or the future waffling of an extant executive agent.
Thus the answer to the first question, not contradicted by the D.C. Circuit, is in the affirmative; and, without a finding of principle to bound the discretion which would govern a remand to the Agency, the proper course is measured statutory invalidation, i.e., this Court should rule narrowly which in no way means a timid ruling.
Shifting the analysis from a purely constitutional one to policy grounds, the policy consequences of a remand for an agency to find an intelligible principle reveals a perverse incentive.  Agencies would be invited to wink at the non-delegation doctrine in setting standards and only truly engage the search for intelligible principle if challenged.
Interestingly, deference to agency statutory interpretations arises out of the belief in agency “expertise”, the agency’s “intense familiarity with the history and purposes of the legislation at issue” and agency’s “practical knowledge of what will best effectuate those purposes.” Judicial Deference to Administrative Interpretations of Law, Scalia, Antonin, 1989 Duke Law Journal 511, 514 (1989).  Where the agencies have articulated and interpreted “intelligible principles”, not ignored or never found them, a certain latitude implied by “deference” has ensued to support those actions.  Where EPA admits that there is no intelligible principle, the Parties do not see why that decision should receive any less deference. 
The EPA Administrator has gone to lengths in attempting to justify the policy decision of where to set the standard, but her arguments still reduce to: a lower standard would cause less health effects, a higher standard would cause more health effects (see Trucking, 175 F.3d at 1035).  More damning, the
[page 13]
 standard chosen is essentially said to be correct because it is the one chosen by the Administrator (see EPA brief, p. 29, “...no generalized paradigm...can substitute for the Administrator’s careful and reasoned assessment” (quoting 62 Fed. Reg. at 38688)).  The Parties beg to differ; “the administrator’s ... reasoned assessment” must relate to an intelligible principle.  EPA as much as admits that this is unregulated delegation.
Nonetheless, it is all disguised in the garb of rulemaking, and thus EPA claims the competence to decide the question of whether a rational effort to set a rule outside the bounds of discretion, or with ill-defined discretion to which the administrator will not even reliably adhere in the future, is a violation of the non-delegation doctrine.  This implies that this Court ought not consider the constitutional matter de novo, or perhaps not even consider this a constitutional matter.
It is a rather incredible contention, if not unexpected in this day of burgeoning administrative government, that essentially seeks Chevron deference for executive constitutional interpretations, see Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  Where shall the competency of this Court, or any other court, lie if not to set the constitutional line?  Since this gambit raises the question of the standard of review to apply here the Parties proceed to address it.

V. Standard of Review

American Lung Association (ALA) argues that “[b]ecause the Clean Air Act plainly satisfies the non-delegation doctrine, the D.C. Circuit’s constitutional inquiry should have stopped there — there was no occasion to proceed to a constitutionally based examination of EPA’s interpretation, much less a constitutionally based narrowing of that interpretation.” ALA Brief, p. 12-13.  This is, at minimum, an honest admission of the nature of the present case.  It is a constitutional question.
The American Lung Association offers at length its belief in the rationality of the standard chosen.  This avoids addressing the question presented.  The question is not whether EPA chose the right standard; rather, it is whether they could have chosen
[page 14]
 the right standard under the particular circumstances.  This is not a review of the agency’s action for arbitrary nature; indeed, the Parties concede that the procedural history or this rulemaking could insulate EPA from just such a challenge, even in the face of stronger arguments favoring a different standard.  This is how the constitutional question is reached in the first place. 
EPA’s rationale, rather than insulating it from constitutional challenge, invites it.  If EPA’s actions in the rulemaking were irrational, the constitutional question simply would not be reached.  The logic does not, however, follow that simply because EPA may have acted rationally, it acted within constitutional bounds.   Thus the Parties agree with ALA that a constitutional question is at issue, but cannot agree that it was improperly reached.
It is a caricature of the founders’ anticipated tension between the branches to suggest that executive agents should seek deference to their interpretation of a constitutional question, but the advantage of such possible deference is too much for EPA to forego without a vain attempt to shield itself under an Administrative Procedures Act (APA)-style review umbrella.
[page 15] 
 
“In the court’s view, the Constitution requires that EPA supply a single principle that would enable the court to conclude that EPA’s NAAQS are set at what the court deems exactly the “right” level...That approach, however, is inconsistent with the court’s limited role in reviewing NAAQS.  The CAA makes clear that EPA’s actions in setting NAAQS are subject to review under the arbitrary or capricious standards of judicial review. See 42 U.S.C. § 7607(d)(9)”, EPA Brief, p.27, 37. (see also 5 U.S.C. § 706 (2) - APA review procedures identical to 42 U.S.C. § 7607 (d)(9))
The Parties believe that EPA has not taken great effort to obtain the perspective of the appeals court in order to announce what was in that court’s view.  Otherwise they would know that their proposition fails, because the appeals court simply was not reviewing the NAAQS, but whether the delegation of its establishment to EPA was properly bounded.  This may be enlightened by EPA’s statutory interpretations but is a constitutional question.  Nowhere does the court demand of EPA the “right” level or suggest it wishes to substitute its judgment as to what the “right” level might be.  It does not seek
[page 16]
 to determine whether the standard is arbitrary, but looks to see whether such a question may be answered, e.g.,
 
“...Only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of congress has been obeyed, would we be justified in overriding its [Congress’s] choice of means for effecting its declared purpose...” Yakus v. U.S., 321 U.S. 414, 425-426 (1944)
Thus the standard chosen by the D.C. Circuit is effectively that one which is viewed as having broken the dam of Schechter’s application.  Therein it can be seen that Schechter was not discredited, but respected, by what are in effect its progeny.
If that respect has been loose or less than charitable as then-Justice Rehnquist suggested in his Benzene concurrence, see Industrial Union Dept. v. American Petrol. Inst., 488 U.S. 607, 686 (1980), such animus never extended to vacating Schechter’s non-delegation maxim which is universally understood to attend the constitutional separation of powers.  With Schechter squarely invoked, and its pedigree questioned, the Parties think some words must be said on its behalf.

VI. The Vitality of Non-Delegation

History suggests that Schechter is more damned by the nature of the case in controversy than by the jurisprudence of the decision.  Surely, the constitutional doctrine of states rights was in public disrepute and, to an extent, the judicial doghouse for more than a century as the happenstance of having been invoked in Dred Scott v. Sanford, 60 U.S. 393 (1857).  Yet the doctrine had nothing whatsoever to do with the disgraced and archaic notion of treating other people as property.  Surely, but the least bit of substantive due process on Scott’s behalf would have yielded a different result and thus struck the appropriate balance between federal and state powers.  While history tells a different story in that case, it is most assuredly misplaced ire to condemn as inappreciative of civil rights the very doctrine
[page 17]
 that the founders conceived of as analogous to the separation of powers and operating with it to insure those rights:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [state and federal] , and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.”, Madison, James Federalist No. 51
 
Schechter, by comparison, has a lesser burden to carry.  It’s social offense was as a judicial roadblock to the New Deal.  It is often taught that Schechter is the progeny of some intractable justices who would not let the nation take the strong medicine that President Roosevelt prescribed.  As with Dred Scott, the Parties think the jurisprudence of Schechter falsely condemned for the linchpin character of its substance and timing.  Few viewed it as worthy of condemnation when Chief Justice Taft had announced the “intelligible principle” requirement in 1928, see J. W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394, 409 (1928); but, he did so in approving a reasonably well defined, if presently viewed as economically quaint, delegation to customs officers to adjust tariffs according to the relative costs of production in the country of origin.
When Schechter came before the Court, even Justice Cardozo, who was the lone dissenter months earlier in the non-delegation invalidation of FDR’s “hot oil” Executive Order issued pursuant to the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, saw “delegation running riot” in the “Live Poultry Code”, Schechter, 295 U.S. at 553 (J. Cardozo, concurring).  While the wage and labor provisions of the code have ultimately prevailed in other forms, the Parties do not anticipate any others to inveigh against invalidating the “straight killing” requirement, i.e., that those purchasing poultry had to take the run of the coop.  In other words, you couldn’t pick the chickens you wanted to buy, nor could A.L.A. Schechter Poultry Co. sell you the chickens of your choice.  If this is a requisite tenet of “fair competition” it was obviously a virtually
[page 18]
 unbounded concept.  Justice Cardozo described the expanse of the delegation as follows:

“...a code is not to be restricted to the elimination of business practices that would be characterized by general acceptation as oppressive or unfair.  It is to include whatever ordinances may be desirable or helpful for the well being or prosperity of the industry affected...If that conception shall prevail, anything that Congress may do within the limits of the commerce clause for the betterment of business may be done by the President upon the recommendation of a trade association by calling it a code.” Ibid

Amicus EDF hazards that Schechter is irrelevant since the regulations were effectively promulgated by private parties, i.e., trade associations (see EDF Brief, p. 22). While the delegation to private individuals can be said to create conflict, members of the industry may also claim expertise.  Few administrative agencies are conflict-free in terms of constituencies and factions they must serve, thus they are also attended by both conflict and expertise.  Noble motives on the part of government actors were not the suspicion of the framers, thus the separation of powers to begin with.  The relevant question in Schechter, as here, is not to whom the delegation is made, but whether an intelligible principle capable of definition bounds the delegation.   In any event, the delegation in Schechter  was effectively to the President who had to approve any interpretation.
While one can make light of the chicken killing requirements, the wage and hours provisions of the codes at issue remained a central contention within jurisprudence from the New Deal to the Great Society.  In Schechter, these provisions were held inappropriate both on the grounds of “attempted delegation of legislative power and the attempted regulation of intrastate transactions which affect interstate commerce only indirectly...”, Id. at 551 .  Notably, when a federally chartered minimum wage was first found constitutional by this Court, see U.S. v. Darby, 312 U.S. 100 (1941), and Opp Cotton Mills v. Administrator of W. and H.D., 312 U.S. 126
[page 19]
 (1941), it applied only to businesses transacting across state lines, and was set by Congress at 25 cents per hour with a delegation allowing the Administrator of the Wage and Hour Division to increase the wage where merited, but this discretionary increase could not provide a wage in excess of 40 cents per hour (see Fair Labor Standards Act of 1938, 52 Stat. 1060).  Thus, the Parties would describe this as a well bounded, i.e. less vague, delegation, albeit wide in the sense that it applied across the interstate economy of the entire country (see also Mistretta v. U.S., 488 U.S. 361, 368 (1989), approving delegation to United States Sentencing Commission of the establishment of determinate sentencing guidelines where: “The maximum of the range ordinarily may not exceed the minimum by more than the greater of 25% or six months, and each sentence is to be within the limit provided by existing law.” Id.).  Of late, the Congress simply sets the minimum wage by statute.   Rather than a repudiation of Schechter’s non-delegation doctrine, this is a virtual endorsement.
Schechter remained similarly inviolate as a matter of the historically recognized ‘switch in time, that saved nine’, referring primarily to a pair of watershed of rulings which cast the Court in a more accommodating light relative to New Deal undertakings.  Neither of the rulings considered the pivot of the ‘switch in time’ implicated any change in the Court’s view on non-delegation.  West Coast Hotel v. Parrish, 300 U.S. 379 (1937), approved a minimum wage statute of the State of Washington and is considered to have rent the cloth of substantive due process using as a shears the police powers of
[page 20]
 the state — not the federal government.  Congressional delegations were not in issue.  NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), is strictly a commerce clause case (Art. I, Sec. 8, U.S. Constitution).  While the action in controversy was a delegated action, no party argued, and the Court did not conceive, that dismissal of workers for labor organizing activities was not within a well bounded discretion described by “unfair labor practices”.  The question was whether circumstances fell under the ambit of federal jurisdiction.  Thus delegation is only mentioned in passing with the indication that it is inapposite.
This is not to say that petitioner’s camp does not fairly bring examples of suspect delegations that have survived judicial review.  Kenneth Culp Davis does likewise in articulating what he conceived of as the “failure of non-delegation”, see generally, Davis, Kenneth Culp, A New Approach to Delegation, 36 U. Chi. L. Rev. 712 (1969).  Davis points to case studies of interstate trucking regulation, cable television regulation, and natural gas supplier regulation.  Of these, two out of three have been essentially deregulated by Congress, arguably in consequence of the very failures he cites.  Without proper control on delegation, the country evidently faces a boom and bust regulatory environment.
But, is a return to an effective non-delegation doctrine somehow as wild a swing of the pendulum as petitioners intimate as compared with the outcomes just described?  The Parties do not think the measured step they urge hazards a “return” to any distinct legal sentiment, particularly some interpretation once rendering resistance to the New Deal.  The Parties believe that the Court, whether the current Court or that of FDR’s day, is to invoke the “common sense” discussed, supra, in cognizance of the force of its rulings and measure its steps so as to be seen as such, if not widely and substantively digested, by the citizenry.

VII. Chevron Begs Schechter —The Need for Non-Delegation

Justice Scalia has articulated why the idea of yielding judicial deference to the executive on ambiguous statutory interpretations is more sensible than it sounds on its face (see
[page 21]
 Scalia, Antonin, Judicial Deference to Administrative Interpretations of Law, cited, supra).  The Parties argue that, pursuant to Chevron, the regulatory ambit has increased to a point where the executive and independent agencies feel justified in dipping water from the legislative river, simply if they feel it rationally defensible.  Such actions may be the providence of the most well-intentioned of executives, but the drink they seek may be attained constitutionally by running for legislative office.  As Justice Scalia is also known for saying, the Constitution gives the Congress the power to make laws, not the power to make legislators.
The explicit requests here for Chevron deference to executive constitutional interpretations (see EPA Brief, p. 8; ALA Brief, p. 13; and Amicus New York’s Brief, p. 20) and identical if implicit requests resulting from casting this matter as limited to an APA substantive review of agency action for arbitrary application of ambiguous statutory provisions (see EPA Brief, p. 27, 37; and Amicus EDF’s brief, p. 5) indicate that the decision has created almost an artificial intelligence sort of vortex in the administrative agencies.  In the mold of the idiomatic science fictional computer that is taught to think and then takes over its master, reflecting a theme coursing through literature from Shelley’s Frankenstein to Clarke’s 2001 A Space Odyssey, the agencies, once handed Chevron, have responded predictably to expand their influence over the other branches and over the country as a whole as EPA seeks in the present case.  This does not make Chevron wrong, but demonstrates a system of checks that is out of balance.
What is needed here is not a return to pre-New Deal jurisprudence, but recognition that some more dormant theory of jurisprudence remains vibrant.  Schechter has indeed slumbered, but is surely the needed linchpin to the checks and balances of administrative execution of legislative grants of authority.  In fact, without such a reminder as this case is positioned to offer, administrative agencies, and even some courts are losing sight, in some important respects, of from whence the power they wield has come, e.g., the Supreme Court of North Carolina recently ruled in a separation of powers case,
[page 22]
 Wallace v. Bone, 286 S.E. 2d 79 (1982), that an Environmental Management Commission (EMC) which sets standards and promulgates rules is an administrative body and thus has “no relation to the function of the legislative branch of government”, Id. at 88.  The formalistic result in the case, finding it inappropriate for legislators to serve on this EMC, is not incredible; but the notion that standard setting and rulemaking, a portion of the administrative powers of the EMC have “no relation to the function of the legislative branch of government” is certainly as hostile to the separation of powers as legislators sitting on the EMC. 

VIII. Separation of Powers Jurisprudence is,
	by Nature and Design, Formalistic.

There simply can be little rationale for formalistic attentions to the separation of powers in some arenas while not in others.  The line-item veto (see generally, Clinton v. New York , 524 U.S. 417 (1998)) and the legislative veto (see generally, INS v. Chada, 462 U.S. 919 (1983)) have been vanquished through formalistic interpretations of this Court.  Legislative delegation must be subject to the same rigors in order to uphold the values inherent in separation of powers.
Parties urge that the Court view the battle of New York in a context of Congress presenting to the President a spending bill which he may only veto in its entirety, however this bill contains the following caveat: “The President shall spend the allocated sums, or afford the contemplated tax relief only if he deems it requisite to the public welfare” (borrowing from 42 U.S.C. § 4709 (b)(2), although requisite to “the national interest” could surely substitute as it did in the discretionary condition precedent to exercise of the line-item veto, see 2 U.S.C. § 691(a)9A)(iii) (invalidated in New York)).
One cannot ensure appropriate separation of powers by closing off one avenue but leaving other areas for usurpation available.  There can be little doubt that Congress passed the Line Item Veto Act, 2 U.S.C. § 691 (invalidated in New York), to solve that nettlesome problem of government, trimming the fat, that it was unable to accomplish itself.  If this assistance of
[page 23]
 the Executive were not available under the constitutional separation of powers because it would involve legislating by less than the constitutional algorithm of passage by both houses and presentment, is it no less legislating because it appears in the form of delegated executive action, rather than in a form internal to the legislative process?
The Parties do not deny that the President has certain, if limited, latitude in the expenditure of funds in operating his own executive and independent agencies, which is most often manifest in not actually spending allocated funds.  It seems likely, though, that if the President failed to transmit funds to states or local entities to which funds had been allocated by Congress or if the President attempted to collect a tax which Congress had explicitly abated, and either action were defended in legal proceedings on the pretext of the aforementioned untethered delegation, that this Court should arrive at the same result it did in New York. 
Likewise, one of the most logical mechanisms for regulating delegation, the legislative veto, is forsworn on the same grounds as the line-item veto, that it is an incomplete or improper making of law under Article I, Section 7 of the U.S. Constitution.  Congress may only effect a legislative veto by legislating completely.  A syllogistic exercise reveals that since an Executive veto of a legislative bill must be overridden by a two-thirds vote of both houses of Congress, and since a Congressional veto by complete legislation is aimed at Executive action; a Congressional override of agency action will require supermajoritarian rather than simple majoritarian support.  In practice, the full legislative process is seldom applied to such a task as the risk of validating the very action which has raised Congress’ ire is, ironically, significant, see e.g., U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985) — withdrawal of congressional action against Executive interpretation later held relevant to judicial upholding of disputed interpretation. 
[page 24]
Thus the notion collapses that Congress may effectively regulate its delegations after the fact.  While the mechanism theoretically exists, it cannot be viewed as providing the proper check on the bounds of discretion exercised by administrative agencies.
Thus, for the time being, this Court is the only forum in which an effective veto of legislative power unconstitutionally assumed by the executive or administrative agents may be had.  The future may hold further refinements or improvements.  Indeed the Parties note then-Judge Breyer’s effective invitation to Congress to try what we term for these purposes the “legislative proto”, see Breyer, Stephen, The Legislative Veto After Chada, 72 Georgetown Law Journal 785 (1984),

“My [legislative] veto substitute...could replace veto provisions in present statutes with provisions that conditioned the legal effect of exercise of delegated authority on subsequent enactment of a confirmatory statute”, Id. at 793. 

[page 25]
We believe this a manifestly sensible recommendation, both generally, and in the present case.  Congress could obviously use such a mechanism for the reconciliation of ambiguities that would properly bound Chevron deference in statutory interpretations.  Then-Judge Breyer imagined that it might obviate the principal function of judicial review of agency actions, i.e., determining whether they are arbitrary when held up against the statute under which they are taken, see Id. at 795.  Since the rules themselves, which would be confirmed by statute, are then subject to agency “policies and practices” the Parties believe that the confirmatory statute idea does not hazard a work shortage for jurists.
In such a “legislative proto” world, the courts would be more free to concentrate on the issues of enforcement discretion which Kenneth Culp Davis tends to commingle with non-delegation problems (see generally Davis, Kenneth Culp, A New Approach to Delegation, 36 U. Chi. L. Rev. 713 (1969), esp. Chapter IV. Judicial Acquiescence in Administrative Exercise of Ungranted Power, Id. at 722-725).  The Parties agree that selective enforcement and prosecutorial discretion go begging for redress as surely today as they did in 1969; however, these are preponderantly issues of performance of clearly executive duties, not those delegated to the agency by the legislature.  It clouds the issue to reach purely executive discretion when examining discretionary grants of legislative power.
The Parties are, in fact, so impressed with the idea of the “legislative proto” that they essentially ask this Court to effect the judicial equivalent for the constitutional question before it (one that the Parties acknowledge would likely seldom be reached if the “legislative proto” were in place in this and other statutes).  Thus the Parties encourage this Court to answer the
[page 26]
 first question presented in the affirmative and remand the statute in the narrow context of the rulemaking at issue here to Congress for a confirmatory statute, or other action or inaction of its choosing.  For now, that is the only way to protect the Consti-tution in the present context.  Judicial restraint would otherwise be mistakenly exercised to ‘save’ this statute in the narrow context in which its validity is here in question.  This is the solution accomplishing the main purpose of the non-delegation doctrine,
“to ensure[ ] to the extent consistent with orderly gov-ernmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will”, Benzene, 448 U.S. 607, 685 (Rehnquist, J., concurring).

IX. A narrow but firm decision will have limited,
	measured and necessary effects.

At the time, governmental calamity was widely if hyperbolically suggested as a result of the formalistic holdings in Chada.  Almost a generation later, it appears more a legislative speed bump than a roadblock.  While a proper and deliberate alternative to the legislative veto has taken its time appearing — and to the extent that it exists is reflected by, inter alia, the Regulatory Flexibility Act, 5 U.S.C. § 601, which, ironically, were avoided in the present rulemaking — no one would allege that civil society is on the brink of collapse as a result.
The Parties admit that reaffirming the lines between executive and legislative power in the non-delegation context will be ritualistically condemned by some as unappreciative of the complexities of modern society.  But, the Parties favor replacing neither the constitutional system nor the jury system, both of which have been subject to criticisms of their contemporary relevance in a post-industrial age, with a tyranny of technocracy.   Still, one must address whether the practical result of the narrow holdings the Parties beg would somehow
[page 27]
 hazard wide upheaval inversely proportional to their focus.
The Parties suppose that petitioners’ camp, who essentially beg that this Court reverse the D.C. Circuit by finding their policy imperatives superior to time-worn constitutional bounds, would be aghast at the answer the Parties propose.  But Parties doubt unwarranted impacts from ruling narrowly yet still firmly.  No assault has been made on the existing standard, nor any suggestion that it and other standards would evaporate as a matter of the precise considerations here.  Not only has the former standard stood unchallenged for some time giving it that measure of legislative stare decisis, all would likely admit, but it has been explicitly articulated by Congress in the Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399, 42 U.S.C. § 7511(a)(1). That is not to say that it was never conceived that EPA would revise the standard, but that EPA was certainly envisioned to so do within constitutional bounds.  Narrow invalidity for the new standard will clearly leave the former standard as protection.
[page 28]  
This is also true for particulate matter, PM 10, for which a current standard exists.  However, one might argue that this is the first standard setting for small particulate matter, i.e., PM 2.5 — albeit PM 2.5 is, to some effect, included in PM 10.   Assuming, arguendo, however that the standard at issue is a non-existing standard, the consequence of invalidating the rule is merely delaying it for a time to see if Congress will provide it some structure, but the rule has never existed for the 30 years of the CAA.  This is not somehow the upsetting of 30 years of settled enforcement.
Thus it can be seen that when inquiring into the impact of this narrow statutory invalidation, where the action in question conceives of a new standard or plan, no long-standing program is at hazard.  Where a long-standing standard or program exists and some rule or revision exceeds discretionary bounds, meriting a similar fate to that which the Parties urge for the rule here, the long-standing rule or program remains in place.
Thus a decision to find the statute narrowly invalid, as interpreted, with respect to this rulemaking and remanding it to Congress for some confirmatory or clarifying statute actually has very little effect on the execution of government programs.
It may be argued that a danger exists that Congress will not confirm the rule.  To argue this in the particular case is to admit to a usurpation of congressional authority in a way for which the Agency is unsure it could obtain congressional endorsement.  Of course, in this situation, the shoe is properly on the other foot.  The current situation is that Congress is simply understood as having endorsed the interpretation whether it does nothing or whether it fails at a legislative attempt to overturn it (see the Parties’ arguments at p. 23-24, n. 13, supra).
The truly old saw in this regard is that Congress simply does not have the time or expertise to make the necessary rules.  That does not justify usurpation and it presupposes to an extent that Congress would start afresh, without the benefit of the public debate attending the invalidated rulemaking process to inform its own deliberations.  Even with an administrative record, it is certain that congressional undertakings are no mean feat; but neither is there any evidence that Congress cannot and
[page 29]
 will not act with dispatch when the social policy at stake demands it.  Congress’s failure to act in whatever time frame can justly be interpreted as lacking the very will that agencies so often claim to be carrying out.  The Parties suggest that where there is no will, there is no way.
We must truly defer, in the realm of whether more effective congressional engagement in writing or confirming rules to avoid excessive delegation somehow hazards the end of civil government, to the preeminent scholar in this regard.  With no impoliteness intended to Kenneth Culp Davis whose work the EDF believes informed the direction of the appeals court (see EDF Brief, p. 6), the Parties must recommend instead David Schoenbrod as a scholarly authority who argues succinctly and on point that “Congress Has Enough Time to Make the Laws”.  In fact he devotes an entire chapter of his seminal work Power Without Responsibility, How Congress Abuses the People Through Delegation (Yale University Press, New Haven, 1993), to just this proposition (see pp. 135-152).
Reference to the importance of Schoenbrod’s work by the Parties is critical beyond their respect for his scholarship.  As groups composed of resource workers, property owners and recreators who strongly believe that excessive delegation of legislative power, or its corollary usurpation by the executive, has infringed property rights, limited multiple use of public lands, and has damaged communities and undercut rural industriousness, the Parties see an executive that has overreached.  This is the Parties’ admitted motivation in appearing here, but as a consequence of the focus of their activism on advancing property rights, sustainable resource exploitation and public lands access, the Parties are inappropriately but unavoidably conceived of by policy adversaries as not valuing environmental quality in the pursuit of their objectives.  Schoenbrod, on the other hand, whose work the Parties recommend to the Court in resolving this matter, is effectively the Parties’ complement, focusing on environmental quality that may go begging as a result of excessive delegation:
[page 30]

	“As a student during the 1960s, I spent my summers working for the perfect apostle of the New Deal, Hubert Humphrey, and aspired someday to sit in Congress or run an agency that, in the New Deal mold, would make laws.  By the 1970s, like much of my generation, I had come to distrust agencies, and served as one of the leaders of the Natural Resources Defense Council, a non-profit corporation that pressured agencies to make laws that would fulfill the promises of environmental statutes.  That experience made me see statutes that delegate as a way for politicians to play to the grandstand rather than to make the hard choices needed to protect the public.  It started me wondering whether the public really benefits from delegation.  Seeking an answer to that question, I became a legal scholar.
I now believe that delegation has produced a regulatory system so cumbersome that it cannot provide the protection that people do need, so large that it needlessly stifles the economy, and so complex that it keeps voters from knowing whom to hold accountable for the consequences.” Id. at ix-x.
Schoenbrod’s work is a significant testament to how limited delegation can work, garnering praise from reviewers as disparate as former Senator Bill Bradley and Judge Robert H. Bork.  Schoenbrod’s ideas are not gospel despite the metaphor, and certainly should be subject to the rigors of the very governmental processes he would improve.  This debate, however, will never be meaningfully joined without this Court’s willingness to force the hands of the players.

CONCLUSION — A narrow but firm holding is called for. 

In consideration of the foregoing, the Parties urge that this Court answer question one as presented in the affirmative and, in so doing, declare Section 109 of the Clean Air Act, 42 U.S.C. § 4709, unconstitutional and void as interpreted by EPA with respect to any revision of the ozone and particulate matter standards.
[signature page]
Respectfully submitted.

	Christopher C. Horner
	Counsel of Record
	and Counsel for Amici Curiae
	813 Duke Street
	Alexandria, Virginia 22314
	(703) 549-4989