`
`IN THE
`Supreme Court of the United States
`————
`UNITED STATES DEPARTMENT OF
`HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`————
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`————
`BRIEF OF PROFESSORS—
`DEAN RONALD A. CASS,
`CHRISTOPHER C. DEMUTH, SR., AND
`JAMES L. HUFFMAN—AS AMICI CURIAE
`IN SUPPORT OF NEITHER PARTY
`————
`
`RONALD A. CASS
`Counsel of Record
`CASS & ASSOCIATES, PC
`10560 Fox Forest Drive
`Great Falls, VA 22066-1743
`(703) 438-7590
`roncass@cassassociates.net
`Counsel for Amici Curiae
`
`August 23, 2019
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ................................
`INTEREST OF AMICI CURIAE ........................
`SUMMARY OF ARGUMENT .............................
`ARGUMENT ........................................................
`I. Judicial Review Should Not Intrude on
`Discretion Granted to Administrators by
`Law ............................................................
`A. Courts’ Review of Discretionary Agency
`Action under the APA Is Strictly
`Limited .................................................
`1. The APA Provides Limited Review
`of Discretionary Actions for which
`Review Is Not Excluded .................
`2. Discretionary Actions Based on
`Policy Considerations Are Subject
`to Narrow Review for Specific
`Decision-Making Failures ..............
`B. The Scope of Review for Discretionary
`Agency Actions Is Identical for Initial
`Decisions on an Issue or Changes in
`Agency Policy Respecting an Issue .....
`II. Courts Should Not Inquire into, or Base
`Decisions on, Administrators’ Motives for
`Actions Challenged under the APA .........
`A. Review of Agency Action under the
`APA Focuses on Lawfulness Judged
`by the Reasons Given, Not Motives ....
`
`Page
`
`iii
`1
`2
`11
`
`11
`
`11
`
`11
`
`13
`
`18
`
`25
`
`25
`
`(i)
`
`
`
`ii
`TABLE OF CONTENTS—Continued
`
`
`
`B. Inquiries into Officials’ Motives Intrude
`on Spheres of Action Committed to
`Co-Equal Branches of Government
`and Invite Litigation Based on Politi-
`cal or Personal Predilections ...............
`CONCLUSION ....................................................
`
`Page
`
`28
`33
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`12
`
`17
`
`18
`
`American Trucking Associations v.
`United States,
`344 U.S. 298 (1953) ...................................
`American Trucking Assns., Inc. v.
`Atchison, T. & S. F. R. Co.,
`387 U. S. 397 (1967) .................................. 23-24
`Baltimore Gas & Electric Co. v. Natural
`Resources Defense Council, Inc.,
`462 U.S. 87 (1983) .....................................
`Barnhart v. Walton,
`535 U.S. 212 (2002) ...................................
`Bowman Transp., Inc. v. Arkansas-Best
`Freight System, Inc.,
`419 U. S. 281 (1974) .............................. 4, 13, 23
`Camp v. Pitts,
`411 U.S. 138 (1973) ................................... 28, 29
`Caperton v. A.T. Massey Coal Co., Inc.,
`556 U.S. 868 (2009) ...................................
`Chevron U.S.A. Inc. v. Natural Resources
`Defense Council, Inc.,
`467 U.S. 837 (1984) (Chevron) ..................... 5, 15
`Citizens to Preserve Overton Park v. Volpe,
`401 U.S. 402 (1971) ................................... 17, 18
`City of Arlington v. Federal
`Communications Commission,
`133 S. Ct. 1863 (2013) ...............................
`Cuozzo Speed Technologies, LLC v. Lee,
`136 S. Ct. 2131 (2016) ........................... 5, 15, 16
`
`29
`
`16
`
`
`
`
`
`iv
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`24
`
`12
`
`Department of Agriculture v. Moreno,
`413 U.S. 528 (1973) ..................................... 8, 26, 27
`Department of Commerce v. New York,
`588 U.S. ___ (2019) ..................................passim
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ...............................
`Federal Communications Commission v.
`Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ..................................passim
`Federal Communications Commission v.
`National Citizens Committee
`for Broadcasting,
`436 U.S. 775 (1978) ...................................
`FERC v. Electric Power Supply Assn.,
`577 U. S. ___ (2016) .................................. 7, 24
`Free Enterprise Fund v. Public Company
`Accountability Oversight Board,
`561 U.S. 477 (2010) ................................... 20, 21
`Gibson v. Berryhill,
`411 U.S. 564 (1973) ................................... 29, 30
`Gregoire v. Biddle,
`177 F.2d 579 (2d Cir. 1949) ........... 7-8, 9, 25, 30
`Gundy v. United States,
`588 U.S. ____ (2019) ..................................
`Gutierrez-Brizuela v. Lynch,
`834 F.3d 1142 (10th Cir. 2016) ................. 5, 16
`Heckler v. Chaney,
`470 U.S. 821 (1985) ..................................passim
`
`14
`
`
`
`
`
`v
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`14
`
`16
`
`17
`
`15
`
`Loving v. United States,
`517 U.S. 748 (1996) ...................................
`Kisor v. Wilkie,
`588 U.S. ___ (2019) .....................................
`MCI Telecommunications Corp. v.
`American Tel. & Tel.,
`512 U.S. 218 (1994) ...................................
`Michigan v. Environmental Protection
`Agency, 135 S. Ct. 2600 (2015) .................
`Morgan v. United States,
`304 U.S. 1 (1938) ............................... 7, 9, 25, 30
`Motor Vehicle Mfrs. Assn. of United States, Inc.
`v. State Farm Mut. Automobile Ins. Co.,
`463 U. S. 29 (1983) ...................................passim
`National Broadcasting Co. v. United States,
`319 U.S. 190 (1943) ...................................
`National Cable & Telecommunications
`Association v. Brand X Internet Services,
`545 U.S. 967 (2005) ..................................... 3, 11
`Permian Basin Area Rate Cases,
`390 U. S. 747, 390 U. S. 784 (1968) ..........
`Romer v. Evans,
`517 U.S. 620 (1996) ............................... 8, 25, 26
`SEC v. Chenery,
`318 U.S. 80 (1943) ..................................... 9, 28
`Smiley v. Citibank (South Dakota), N.A.,
`517 U.S. 735 (1996) ............................. 12, 15, 18
`
`17
`
`23
`
`
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`Trump v. Hawaii,
`585 U. S. ___ (2018) .................................... passim
`Tumey v. Ohio,
`273 U.S. 510 (1927) ...................................
`United States v. Morgan,
`313 U.S. 409 (1941) ..................................passim
`Ward v. Village of Monroeville,
`409 U.S. 57 (1972) .....................................
`Wayman v. Southard,
`23 U.S. (10 Wheat.) 1 (1825) ....................
`Webster v. Doe,
`486 U.S. 592 (1988) ...................................
`
`29
`
`29
`
`14
`
`12
`
`CONSTITUTION
`
`U.S. Const. art. II, §3 ...................................
`
`20
`
`STATUTES
`
`5 U.S.C. §701(a)(2) ....................................... 3, 12
`5 U.S.C. §706 ......................................... 4-5, 14, 15
`5 U.S.C. §706(2)(A) ......................................passim
`5 U.S.C. §706(2)(B) .......................................
`5
`5 U.S.C. §706(2)(C) ..................................... 4, 5, 13
`5 U.S.C. §706(2)(D) ....................................... 4, 13
`
`
`
`
`
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`
`OTHER AUTHORITIES
`
`Page(s)
`
`14
`
`16
`
`15
`
`Larry Alexander & Saikrishna Prakash,
`Delegation Really Running Riot, 93 Va.
`L. Rev. 1035 (2007) ...................................
`Jack M. Beermann, End the Failed Chevron
`Experiment Now: How Chevron Has
`Failed and Why It Can and Should Be
`Overruled, 42 Conn. L. Rev. 779 (2010) ...
`Stephen G. Breyer, Judicial Review of
`Questions of Law and Policy, 38 Admin.
`L. Rev. 363 (1986) .....................................
`Clark Byse, Judicial Review of Admin-
`istrative Interpretation of Statutes: An
`Analysis of Chevron Step Two, 2 Admin.
`L.J. 255 (1988) .......................................... 14, 18
`Ronald A. Cass, Auer Deference: Doubling
`Down on Delegation’s Defects, 87 Fordham
`L. Rev. 531 (2018) .....................................
`Ronald A. Cass, Delegation Reconsidered: A
`Delegation Doctrine for the Modern Admin-
`istrative State, 40 Harv. J.L. & Pub. Pol’y
`147 (2016) ..................................................
`Ronald A. Cass, Is Chevron’s Game Worth
`the Candle? Burning Interpretation at
`Both Ends, in Liberty’s Nemesis: The
`Unchecked Expansion of the State (Dean
`Reuter & John Yoo eds., 2016) .................
`
`12
`
`14
`
`16
`
`
`
`
`
`
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`17
`
`Ronald A. Cass, Nationwide Injunctions’
`Governance Problems: Forum-Shopping,
`Politicizing Courts, and Eroding Consti-
`tutional Structure, 27 Geo. Mason L. Rev.
`35 (issue no. 1, 2019) (forthcoming),
`available at https://papers.ssrn.com/sol3/
`papers.cfm?abstract_id=3390064 ............. 10, 31
`Ronald A. Cass, Vive La Deference?:
`Rethinking the Balance Between Admin-
`istrative and Judicial Discretion, 83 Geo.
`Wash. L. Rev. 1294 (2015) ........................ 14, 18
`Christopher DeMuth, OIRA at Thirty, 63
`Admin. L. Rev. 101 (2011) ........................
`John F. Duffy, Administrative Common
`Law in Judicial Review, 77 Tex. L. Rev.
`113 (1998) .................................................. 14-15
`William N. Eskridge, Jr. & Lauren E. Baer,
`The Continuum of Deference: Supreme
`Court Treatment of Agency Statutory
`Interpretation from Chevron to Hamdan,
`96 Geo. L.J. 1083 (2008) ...........................
`Cynthia R. Farina, Statutory Interpretation
`and the Balance of Power in the Admin-
`istrative State, 89 Colum. L. Rev. 452
`(1989) .........................................................
`Merrick Garland, Deregulation and Judicial
`Review, 98 Harv. L. Rev. 507 (1985) ........ 6, 19
`
`15
`
`15
`
`
`
`
`
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`14
`
`15
`
`Michael Herz, Deference Running Riot:
`Separating Interpretation and Lawmaking
`Under Chevron, 6 Admin. L.J. Am. U. 187
`(1992) ............................................................ 16, 18
`Gary Lawson, Delegation and Original
`Meaning, 88 Va. L. Rev. 327 (2002) .........
`Gary Lawson & Stephen Kam, Making Law
`out of Nothing at All: The Origins of the
`Chevron Doctrine, 65 Admin. L. Rev. 1
`(2013) .........................................................
`Elbert Lin, States Suing the Federal
`Government: Protecting Liberty
`or
`Playing Politics?, 52 U. Rich. L. Rev. 633
`(2018) ......................................................... 10, 31
`James Madison, 1 Annals of Congress 499
`(1789) .........................................................
`Thomas O. McGarity, Some Thoughts on
`“Deossifying” the Rulemaking Process, 41
`Duke L.J. 1385 (1992) ............................... 6, 19
`McNollgast, The Political Origins of the
`Administrative Procedure Act, 15 J.L.
`Econ. & Org. 180 (1999)............................ 19, 21
`Thomas W. Merrill & Kristin E. Hickman,
`Chevron’s Domain, 89 Geo. L.J. 833
`(2001) .........................................................
`Glen O. Robinson, The Federal Communica-
`tions Commission: An Essay on Regulatory
`Watchdogs, 64 Va. L. Rev. 169 (1978) .. 6, 19, 20
`
`21
`
`15
`
`
`
`
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Antonin Scalia, Judicial Deference
`to
`Administrative Interpretations of Law,
`1989 Duke L.J. 511 (1989) ........................
`George B. Shepherd, Fierce Compromise:
`The Administrative Procedure Act Emerges
`from New Deal Politics, 90 Nw. U. L. Rev.
`1557 (1996). ........................................ 5-6, 19, 21
`James Q. Wilson, The Dead Hand of
`Regulation, 25 Pub. Int. 39 (Fall 1971) .... 6, 20
`
`15
`
`
`
`
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`————
`No. 18-587
`————
`UNITED STATES DEPARTMENT OF
`HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`————
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`————
`BRIEF OF PROFESSORS—
`DEAN RONALD A. CASS,
`CHRISTOPHER C. DEMUTH, SR., AND
`JAMES L. HUFFMAN—AS AMICI CURIAE
`IN SUPPORT OF NEITHER PARTY
`————
`INTEREST OF AMICI CURIAE1
`Amici are teachers, scholars, and former govern-
`ment officials who each have had extensive engagement
`with administrative law over a period of more than 40
`years. Amici have served in a variety of positions in
`
`1 The parties have consented in writing to the filing of this
`brief, and their letters of consent have been filed with the Clerk.
`No party’s counsel authored this brief in whole or in part, and no
`person or entity other than amici or their counsel made a mone-
`tary contribution intended to fund its preparation or submission.
`
`
`
`2
`the United States government, including positions in
`the Executive Office of the President, executive depart-
`ments, independent agencies, and the judicial branch.
`Amici have been responsible for making decisions in
`official capacities and for reviewing agency decisions.
`They also have been deeply involved with organiza-
`tions devoted to administrative law and have taught
`classes and written numerous articles and books on
`matters implicated in the questions presented in this
`case. This brief reflects amici’s long-standing interests
`in the subject of administrative law and particularly
`in standards for judicial review of administrative action.
`
`SUMMARY OF ARGUMENT
`The questions presented in this case address
`(1) whether the particular decision at issue is “commit-
`ted to agency discretion by law,” and (2) and whether
`the particular decision was lawful.
`The critical inquiry in the second question is the
`manner in which courts decide whether an adminis-
`trative action is “arbitrary” or “capricious” or “an
`abuse of discretion.” See Administrative Procedure Act
`(APA), 5 U.S.C. §706(2)(A). That inquiry also impli-
`cates two subsidiary questions: the extent to which an
`administrative action that changes a prior agency
`action bears a higher burden of justification than an
`action taken on a matter of first impression for the
`agency, and the degree to which courts are permitted
`to inquire into the particular considerations in the
`mind of an administrator in assessing the lawfulness
`of an agency action.
`Amici address only the considerations respecting the
`second question presented, elaborating considerations
`relevant to the manner in which courts decide whether
`an administrative action is “arbitrary, capricious, [or]
`
`
`
`3
`an abuse of discretion.” APA, 5 U.S.C. §706(2)(A). In
`doing so, however, we also address the dividing line
`between the determination necessary to resolving
`question (1) (whether a matter is committed to agency
`discretion by law) and the central part of question
`(2) (whether a decision is arbitrary, capricious, or an
`abuse of discretion). Although our analysis generally
`accords with arguments favorable to petitioners, our
`goal is not to support one party but to clarify analysis
`of issues respecting the nature of review that are
`before the Court in the instant case.
`Distinguishing Reviewable
`from Unreviewable
`Discretion. The APA distinguishes two sorts of analy-
`sis. One is whether a matter is “committed to agency
`discretion by law” in such a manner as to preclude
`review. See, e.g., Heckler v. Chaney, 470 U.S. 821,
`831–35 (1985) (Chaney). The other is how courts review
`matters on which agencies enjoy discretion that remains
`subject to judicial review. See, e.g., Federal Commu-
`nications Commission v. Fox Television Stations, Inc.,
`556 U.S. 502, 511–14 (2009) (Fox Television Stations);
`National Cable & Telecommunications Association v.
`Brand X Internet Services, 545 U.S. 967, 981, 989
`(2005) (Brand X). The APA both excludes agency actions
`from judicial review “to the extent that . . . agency
`action is committed to agency discretion by law,” APA,
`5 U.S.C. §701(a)(2), and provides for review, among
`other things, for “an abuse of discretion.” APA, 5
`U.S.C. §706(2)(A). While the APA does not insulate all
`discretionary action from review—a reading that
`would make providing review for “abuse of discretion”
`incongruous—the text of the APA plainly commands
`respect from courts for the exercise of delegated discre-
`tion by agencies.
`
`
`
`4
`Scope of Review for Ordinary Discretion. When stat-
`utes provide limiting directives, exercises of discretion
`can be reviewed to assure that the administrator has
`not acted contrary to those directives. See APA, 5
`U.S.C. §706(2)(A), §706(2)(C), §706(2)(D); Chaney, 470
`U.S. at 831–35. Apart from specific constraints on the
`scope of delegated discretion, the exercise of discretion
`is checked only to assure consistency with basic
`principles for reasoned decision-making. See, e.g., Fox
`Television Stations, 556 U.S. at 513–14; Bowman
`Transp., Inc. v. Arkansas-Best Freight System, Inc.,
`419 U. S. 281, 286 (1974) (Bowman Transp.). As this
`Court has emphasized, the scope of review is “narrow,”
`an observation frequently coupled with the caution
`that “a court is not to substitute its judgment [on
`questions of policy] for that of the agency.” Motor
`Vehicle Mfrs. Assn. of United States, Inc. v. State Farm
`Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (State
`Farm). Similarly, the Court stated that “a reviewing
`court may not set aside an agency rule that is rational,
`based on consideration of the relevant factors, and
`within the scope of the authority delegated to the
`agency by the statute.” Id., at 42. That narrow review
`standard is consistent with an appreciation that even
`reviewable discretionary action is still discretionary
`action—and the fact that a range of discretionary
`actions is made expressly unreviewable indicates the
`law’s antipathy to intrusive judicial review of admin-
`istrative discretion.
`Concern over judicial intrusion into discretionary
`policy-based judgments is most evident in the narrow-
`ness of the terms used to authorize reviewing courts
`to set the agency action aside. See APA, 5 U.S.C.
`§706(2)(A). The terms respecting review of discretion-
`ary decisions contrast sharply with those respecting
`review of interpretations of law. See APA, 5 U.S.C.
`
`
`
`5
`§706, §706(2)(B), §706(2)(C). Despite confusion on this
`score, deference to administrative exercises of discre-
`tion for policy matters—as opposed to interpretation
`of the scope of discretion committed to executive
`officers—is the cornerstone of decisions, such as the
`Chevron decision, interpreting those commands, and
`informs demands to clarify the meaning of Chevron
`(or to abandon the test associated with it). See, e.g.,
`Chevron U.S.A. Inc. v. Natural Resources Defense Council,
`Inc., 467 U.S. 837, 843–46, 859, 862–66 (1984) (Chevron);
`Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct.
`2131, 2142–44 (2016) (Cuozzo); id. at 2148 (Thomas, J.
`concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d
`1142, 1149, 1152–58 (10th Cir. 2016) (Gorsuch, J.,
`concurring).
`Scope of review for policy changes. The APA and
`the precedents of this Court do not support different
`degrees of scrutiny—in particular, they do not support
`heightened scrutiny—for use of discretionary authority
`to make changes in agency policies. See, e.g., State
`Farm, 463 U.S. at 41. The text of the APA plainly does
`not require different review standards for agency
`exercises of discretion that alter the policies guiding
`prior exercises of agency discretion. As this Court has
`said: “[t]he statute makes no distinction . . . between
`initial agency action and subsequent agency action
`undoing or revising that action.” Fox Television Stations,
`556 U.S. at 515; see also State Farm, 463 U.S. at 41.
`Nor would it be reasonable to infer from the APA a
`general intention to make successive exercises of policy
`discretion increasingly difficult. Those who wrote and
`voted for the APA were acutely aware of the compli-
`cated nature of administrative decision-making, including
`the forces that promote—and also those that oppose—
`changes in policy over time. See, e.g., George B. Shepherd,
`Fierce Compromise: The Administrative Procedure Act
`
`
`
`6
`Emerges from New Deal Politics, 90 Nw. U. L. Rev.
`1557, 1560–61, 1583–1623, 1655–68 (1996).
`As former government officials, amici attest that
`there are many impediments to making policy changes,
`from the procedural rigors of some policymaking modes
`to the resistance of individuals and groups advantaged
`by or invested in the existing policy. See also Merrick
`Garland, Deregulation and Judicial Review, 98 Harv.
`L. Rev. 507, 508 (1985); Thomas O. McGarity, Some
`Thoughts on “Deossifying” the Rulemaking Process,
`41 Duke L.J. 1385, 1385–88, 1396–98 (1992). It is
`important to note as well that groups that may resist
`policy changes frequently include agency staff, a set of
`government officials who tend to turn over less often
`than politically-appointed officials with policy-making
`authority. Their relative longevity in office and fre-
`quent association with the adoption of earlier policy
`initiatives can reduce their enthusiasm about making
`changes supported by politically-appointed officials
`who have different views and shorter time horizons on
`getting policies implemented. See, e.g., Glen O. Robinson,
`The Federal Communications Commission: An Essay
`on Regulatory Watchdogs, 64 Va. L. Rev. 169, 185–87,
`216–19 (1978); James Q. Wilson, The Dead Hand of
`Regulation, 25 Pub. Int. (Fall 1971) at 39, 48.
`Given these considerations, courts reviewing agency
`actions should be particularly careful not to give undue
`weight to disputes between staff resisting change and
`policy-making officials supporting change. See, e.g.,
`Department of Commerce v. New York, 588 U.S. ___,
`___–___ (2019) (slip op. at 17–20) (Department of Com-
`merce). The existence of multiple sources of resistance
`to changing policies that are already built into the
`decision-making process also supports the conclusion
`reached by this Court in State Farm that rescission of
`
`
`
`7
`a rule is subject to the same review standard as
`adoption of the rule, not a higher or lower standard,
`State Farm, 463 U.S. at 41.
`This Court has, however, identified settings in which
`changes in policy require explanation to satisfy the
`modest tests set out in APA §706(2)(A). For example,
`Fox Television Stations observed that changes in policy
`based on fact-findings at odds with earlier findings
`may call for explanation or at least recognition of that
`circumstance. Id., 556 U.S. at 514. This instruction
`should not be read as a directive to ignore the limita-
`tions on judicial review written into law and emphasized
`repeatedly by this Court. See Department of Com-
`merce, 588 U. S. (slip op., at 18–20); FERC v. Electric
`Power Supply Assn., 577 U. S. ___, ___ (2016) (slip op.,
`at 30); Fox Television Stations, 556 U.S. at 515–16.
`Amici believe it is critical for this Court to clarify the
`limitations on review in this context to avoid misun-
`derstanding by lower courts.
`Looking into administrators’ motives. This Court
`has made clear that, in general, for a court reviewing
`agency action, it is “not the function of the court to
`probe the mental processes” of the administrator. Morgan
`v. United States, 304 U.S. 1, 18 (1938) (Morgan II). The
`Court has warned that delving into the motives and
`thought processes of a decision-maker in a co-equal
`branch of government—like looking into the motives
`of a judge rather than what is written in the judge’s
`opinion—would be “destructive” of the responsibility
`of administrators and would undermine “the integrity
`of the administrative process.” United States v.
`Morgan, 313 U.S. 409, 422 (1941) (Morgan IV). Similar
`cautions have been expressed by other judges over
`many years. See, e.g., Gregoire v. Biddle, 177 F.2d 579,
`
`
`
`8
`580–81 (2d Cir. 1949) (op. for the court by Learned
`Hand, C.J.) (Gregoire).
`Despite concerns over the adverse effects of endeav-
`oring to divine the motives behind official acts, this
`Court has identified a small number of instances in
`which these inquiries will be permitted. It recently
`described these exceptional cases as those in which a
`challenged policy cannot plausibly rest on any sus-
`tainable ground, so that “it is impossible to ‘discern a
`relationship to legitimate state interests,’ or that the
`policy is inexplicable by anything but [legally imper-
`missible] animus.’” Trump v. Hawaii, 585 U. S. ___
`(2018) (Trump v. Hawaii) (slip op. at 33) (quoting Romer
`v. Evans, 517 U.S. 620, 632, 635 (1996) (Romer)).
`Those are cases involving actions that this Court said
`“lack any purpose other than a ‘bare . . . desire to harm
`a politically unpopular group.’” Trump v. Hawaii, 585
`U.S. (slip op. at 33) (quoting Department of Agriculture
`v. Moreno, 413 U.S. 528, 534 (1973) (Moreno)). In essence,
`the conclusion followed from finding no rational basis
`for the challenged actions. Last term, in Department
`of Commerce, this Court offered other, strongly-worded
`cautions against judicial inquiries into reasons for offi-
`cial action beyond those offered in support of a course
`of action, including considerations tied to changes in
`political priorities. 588 U. S. (slip op. at 24).
`Nevertheless, the Department of Commerce majority
`found that, as part of a “premature” inquiry into the
`basis for the Secretary of Commerce’s decision, evi-
`dence was produced demonstrating that the Secretary’s
`proffered explanation was “pretextual,” further con-
`cluding that this finding excused the premature demand
`for such evidence. See id., (slip op. at 24–28). In contrast
`to decisions such as Romer and Moreno, Department of
`Commerce supported setting aside a decision as
`
`
`
`9
`improperly motivated after determining that it was
`justified on the grounds stated by the administrator,
`see id., (slip op., at 19–20), making reference to the
`administrator’s motive a separate inquiry rather than
`an extrapolation from the absence of a rational basis
`for his action. The peculiar ground for decision in
`Department of Commerce creates tension with the
`Court’s decision in SEC v. Chenery, 318 U.S. 80, 87
`(1943) (Chenery), which limited review to the stated
`rationale for administrative action.
`Problems of inquiry into official motives. More
`important, this approach threatens to greatly expand
`the occasions for inquiry into the motives of admin-
`istrators, a change that would invite challenges that
`almost certainly would enmesh courts in the very sort
`of inquiries that this Court warned against in Morgan
`II and Morgan IV and that Judge Hand criticized in
`Gregoire—inquiries that are at odds with the under-
`stood division of responsibilities between courts and
`coordinate branches of government. See, e.g., Department
`of Commerce, 588 U.S. (slip op., at 2, 7–8, 13–15)
`(Thomas, J., dissenting).
`Amici strongly support the Court’s traditional
`reluctance to examine the motives of administrative
`decision-makers exercising legally granted authority.
`Having been government decision-makers as well as
`academic critics of government decisions, amici under-
`score the threat to constitutionally separated powers
`if reviewing judges seek to plumb the motives of offi-
`cials in co-equal branches of government. The general
`points on this threat were eloquently stated by Justice
`Frankfurter in Morgan IV and Judge Hand in Gregoire,
`observing the risk inquiries into motive present to
`ordinary official conduct. See Morgan IV, 313 U.S. at
`422; Gregoire, 177 F.2d at 580–81.
`
`
`
`10
`In addition, changing the traditional, APA-based
`standard of review to accommodate inquiries into
`official motives encourages use of judicial review not
`strictly as a means for keeping official actions within
`legal bounds, but as means for extending political
`disputes into the judicial domain. This undermines the
`perceived legitimacy of the courts and intrudes on
`decisions committed to other branches. See, e.g.,
`Trump v. Hawaii, 585 U.S. (slip op. at 5–10) (Thomas,
`J., dissenting); Ronald A. Cass, Nationwide Injunctions’
`Governance Problems: Forum-Shopping, Politicizing
`Courts, and Eroding Constitutional Structure, 27 Geo.
`Mason L. Rev. (issue no. 1, 2019) (forthcoming), at 35–
`40, available at https://papers.ssrn.com/sol3/papers.cf
`m?abstract_id=3390064 (Nationwide Injunctions); see
`also Elbert Lin, States Suing the Federal Government:
`Protecting Liberty or Playing Politics?, 52 U. Rich. L.
`Rev. 633 (2018).
`The degree to which the approach taken in Depart-
`ment of Commerce will produce the adverse consequences
`identified by amici and by Justice Thomas’ dissenting
`opinion depends critically on whether this Court views
`that decision as setting a pattern for a broad set of
`cases or as addressing a truly exceptional situation.
`The opinion in Department of Commerce suggests that
`the decision’s acceptance of a judicial inquiry into, and
`determination based on, official motives is limited to a
`very small category of disputes. 588 U.S. (slip op. at
`24–28). Certainly, the approach taken by the Court in
`Trump v. Hawaii, 585 U. S. (slip op. at 32–37), just a
`short time prior to Department of Commerce, indicates
`an appreciation of the highly unusual circumstances
`in which the Court has considered arguments respect-
`ing the motives of other federal officers. Amici urge
`the Court to clarify that the decision in Department
`of Commerce responded to an extraordinary set of
`
`
`
`11
`circumstances and did not change the long-accepted
`understanding of the APA.
`
`ARGUMENT
`I. Judicial Review Should Not Intrude on
`Discretion Granted to Administrators by
`Law.
`A. Courts’ Review of Discretionary Agency
`Action under the APA Is Strictly
`Limited.
`At the outset, it is important to emphasize that the
`second question presented (the lawfulness of the
`actions being reviewed) necessarily concerns the scope
`of review of agency actions that embody “ordinary
`discretion”—discretionary
`judgments assigned to
`administrators but not excepted from judicial review.
`The first question presented in this case (reviewabil-
`ity) turns on identifying the line between ordinary
`(reviewable) discretionary judgment and discretionary
`judgment that lies entirely outside the purview of
`judicial review. Amici do not address the question of
`reviewability.
`
`1. The APA Provides Limited Review
`of Discretionary Actions for which
`Review Is Not Excluded.
`However, understanding the proper scope of review
`does require initial attention to the APA’s distinction
`between asking whether a matter is “committed to
`agency discretion by law” in such a manner as to
`preclude review, see, e.g., Chaney, 470 U.S. at 831–35,
`and asking how courts review matters on which agen-
`cies enjoy discretion that remains subject to judicial
`review, see, e.g., Fox Television Stations, 556 U.S. at
`511–14; Brand X, 545 U.S. at 981, 989.
`
`
`
`12
`The APA excludes agency actions from judicial review
`“to the extent that . . . agency action is committed to
`agency discretion by law,” APA, 5 U.S.C. §701(a)(2),
`and provides for review, among other things, for
`“an abuse of discretion.” APA, 5 U.S.C. §706(2)(A).
`Obviously, the APA cannot be read to insulate all
`discretionary action from review. That would be
`wholly at odds with the “abuse of discretion” provision.
`At the same time, the text of the APA plainly com-
`mands respect from courts for the exercise of delegated
`discretion by agencies. See, e.g., Fox Television Stations,
`556 U.S. at 511–14; Smiley v. Citibank (South Dakota),
`N.A., 517 U.S. 735, 740–47 (1996) (Smiley); Webster v.
`Doe, 486 U.S. 592, 600–601 (1988) (Webster); Chaney,
`470 U.S. at 831–35; Federal Communications Com-
`mission v. National Citizens Committee for Broadcasting,
`436 U.S. 775, 813–14 (1978) (Citizens Committee);
`American Trucking Associations v. United States, 344
`U.S. 298, 314–15 (1953) (Trucking Associations).
`The distinction between discretion at odds with review
`and “ordinary discretion” that remains subject to lim-
`ited review looks to the particular legal authority for
`agency action. See, e.g., Webster v. Doe, 486 U.S. 592,
`599–601 (1988) (Webster); id., at 605–06 (O’Connor, J.,
`concurring in part and dissenting in part); id. at 606–
`10 (Scalia, J., dissenting). See also Ronald A. Cass,
`Auer Deference: Doubling Down on Delegation’s Defects,
`87 Fordham L. Rev. 531, 537–44 (2018) (explaining
`the relation between ordinary discretion, unreviewable
`discretion, and judicial review). Review is precluded
`so f