No.

23-876

In the Supreme Court of the United States

__________________
KC TRANSPORT, INC., Petitioner,
v.
JULIE A. SU, ACTING SECRETARY OF LABOR, ET AL.,
Respondents.
__________________
On Petition for Writ of Certiorari to the U.S. Court
of Appeals for the District of Columbia Circuit
__________________
Brief of Amici Curiae Advancing American Freedom;
Mountain States Legal Foundation; The Buckeye
Institute; AMAC Action; Americans for Limited
Government; Ambassador Sam Brownback;
Catholics Count; Citizens United; Citizens United
Foundation; Eagle Forum; Charlie Gerow;
International Conference of Evangelical Chaplain
Endorsers; Tim Jones, Former Speaker, Missouri
House, Chairman, Missouri Center-Right Coalition;
Louisiana Family Forum; Maryland Family Institute;
Men and Women for a Representative Democracy in
America, Inc.; National Center for Public Policy
Research; National Committee for Religious
Freedom; Project21 Black Leadership Network; Rio
Grande Foundation; Setting Things Right; 60 Plus
Association; Students for Life of America; Wisconsin
Family Action; Women for Democracy in America,
Inc.; Yankee Institute; and Young America’s
Foundation in Support of Petitioner
__________________
Ivan L. London J. Marc Wheat
Mountain States Counsel of Record
Legal Foundation Timothy Harper (Admitted in DC)
2596 South Lewis Way Advancing American Freedom, Inc.
Lakewood, CO 80227 801 Pennsylvania Avenue, N.W., Suite 930
(303) 292-2021 Washington, D.C. 20004
[email protected] (202) 780-4848
[email protected]
 i

QUESTIONS PRESENTED
1. Whether a truck or a truck repair shop that is not
located at nor is adjacent to an extraction or
processing site or an appurtenant road is a “coal or
other mine” under 30 U.S.C. § 802(h)(1).

2. Whether the D.C. Circuit’s Chevron Step One-and-

a-Half doctrine should be abrogated.
 ii

TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................i
TABLE OF AUTHORITIES ....................................... iv
STATEMENT OF INTEREST OF
AMICI CURIAE ........................................................... 1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT ................................................................ 4
ARGUMENT ................................................................ 7
I. The Constitution Separates the Powers of
the Federal Government into Coequal
Branches to Facilitate the Proper Function
of Government to its Proper End: The
Protection of the Liberty of the People ............ 8
A. The rights of the people pre-exist
government .................................................. 8
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. ............................. 10
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.” ... 12
D. Belief in separation of powers was
widespread at the founding and had
significant philosophical precedent .......... 13
E. The Framers infused the Constitution
with their shared understanding of
separation of powers.................................. 16
 iii

II. Chevron Facilitates and Encourages

Unconstitutional Delegation of Article I
Legislative Power and Article III Judicial
Power to the Executive Branch ...................... 19
III. The D.C. Circuit’s National Cement
Doctrine Exacerbates Chevron’s
Constitutional Problems ................................. 22
CONCLUSION .......................................................... 24
 iv

TABLE OF AUTHORITIES
Cases
B&B Hardware, Inc. v. Hargis Indus.,
575 U.S. 138 (2015) ................................................ 22
Buffington v. McDonough,
143 S. Ct. 14 (2022) .................................................. 2
Chevron v. NRDC,
467 U.S. 837 (1984) ........ 3, 4, 5, 7, 19, 20, 21, 22, 23
INS v. Chadha,
462 U.S. 919 (1983) ................................................ 10
Loper Bright Enterprises v. Raimondo,
No. 22-451 ................................................................ 2
Marbury v. Madison,
5 U.S. 137 (1803) ...................................... 2, 7, 21, 23
McDonald v. Chicago,
561 U.S. 742 (2010) ................................................ 13
Obergefell v. Hodges,
576 U.S. 644 (2015) .............................................. 8, 9
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015) ............................................ 21, 22
PHH Corp. v. Consumer Fin. Prot. Bureau,
881 F.3d 75 (C.A.D.C. 2018) .................................. 16
Seila Law LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183 (2020) ............................................ 16
Stern v. Marshall,
564 U.S. 462 (2011) ................................................ 22
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ................................................ 12
 v

Statutes
5 U.S.C. § 706 .............................................................. 2
30 U.S.C. § 802(h)(1) ................................................... 6
30 U.S.C. § 803 ............................................................ 6
30 U.S.C. § 823 ............................................................ 7
Constitutional Provisions
U.S. Const. art. I ............................................ 16, 19, 20
U.S. Const. art. II ............................................ 5, 13, 16
U.S. Const. art. III .................................... 16, 17, 20-22
U. S. Const. art. VI .................................................... 13
U.S. Const. amend. IX ................................................. 9
U.S. Const. amend. X ................................................ 18
Mass. Const. pt. 1 art. XXX ....................................... 12
Other Authorities
John Adams, Thoughts on Government,
https://www.senate.gov/artandhistory/history/c
ommon/generic/exerpt-thoughts-on-
government-adams-1776.htm................................ 15
John Adams to Samuel Adams, 18 Oct. 1790
(Philip B. Kurland and Ralph Lerner eds.,
Liberty Fund 1987) ................................................ 10
Aristotle, Politics, Book III (Benjamin Jowett,
trans. 1885) (350 BC) ............................................. 12
Randy E. Barnett, Our Republican Constitution
(1st ed. 2016) .......................................................... 13
 vi

1 W. Blackstone, Commentaries on the Laws of

England (1765) ......................................................... 9
Nathaniel Chipman, Sketches of the Principles of
Government (Philip B. Kurland and Ralph
Lerner eds., Liberty Fund 1987) (1793) ................ 21
Edwin J. Feulner, Jr, Conservatives Stalk the
House: The Story of the Republican Study
Committee (Green Hill Publishers, Inc. 1983). ....... 1
Edward H. Fleischman, Commissioner, Securities
and Exchange Commission, Address to the
Women in Housing and Finance, The Fourth
Branch at Work, (November 29, 1990)
https://www.sec.gov/news/speech/1990/112990fl
eischman.pdf ............................................................ 5
Friedrich A. Hayek, The Constitution of Liberty,
(University of Chicago Press, 1978) .................... 5, 6
Daniel J. Hemel, Aaron L. Nielson, Chevron Step
One-and-a-half, 84 U. Chi. L. Rev. 757 (2017) ..... 23
Thomas Jefferson, Notes on the State of Virginia,
Query XIII (1853) ............................................. 10, 15
Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 HARV. L. REV. 2118
(2016) ................................................................ 19, 20
Abraham Kuyper, Sphere Sovereignty
[Souvereiniteit in Eigen Kring], Public Address
Delivered at The Inauguration of The Free
University of Amsterdam, Oct. 20, 1880 ................. 4
John Locke, Second Treatise on Government ............. 9
Montesquieu, Spirit of the Laws (The Colonial
Press 1899) (1748) ............................................ 10, 14
 vii

Cass R. Sunstein, Chevron as Law, 107

Georgetown Law J. 1613 (2019) ............................ 21
The Declaration of Independence (U.S. 1776) ............ 8
The Federalist No. 45 (James Madison) (George
W. Carey and James McClellan, eds., The
Liberty Fund 2001) (1788) ..................................... 18
The Federalist No. 47 (James Madison) (George
W. Carey and James McClellan, eds., The
Liberty Fund 2001) (1788) ......................... 14, 15, 16
The Federalist No. 51 (James Madison) (George
W. Carey and James McClellan, eds., The
Liberty Fund 2001) (1788). ........................ 11, 12, 17
The Federalist No. 71 (Alexander Hamilton)
(George W. Carey and James McClellan, eds.,
The Liberty Fund 2001) (1788) ............................. 15
1 The Records of the Federal Convention of 1787
(Max Farrand, ed. 1911) ........................................ 12
Richard M. Weaver, Ideas Have Consequences
(The University of Chicago Press 2013) (1948) ...... 6
 1

STATEMENT OF INTEREST OF AMICI CURIAE

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.1 AAF “will continue to serve as a beacon for
conservative ideas, a reminder to all branches of
government of their responsibilities to the nation.”2
AAF believes, as did America’s Founders, that the
separation of government powers is essential to
ensuring the promises of the Declaration to all
Americans.
Mountain States Legal Foundation is a non-
profit, public-interest law firm in Lakewood, Colorado.
Since its founding in 1977, Mountain States has used
pro bono litigation to fight for and restore the rights
enshrined in the Constitution. Mountain States
protects individual liberty, the right to own and use
property, the principles of limited and ethical
government, and the benefits of free enterprise.
Mountain States has fought for farmers, mineral-
interest owners, ranchers, recreationists, and others
working the land against encroachments upon their

1 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. All parties received timely notice of the
filing of this brief.
2Edwin J. Feulner, Jr, Conservatives Stalk the House: The Story
of the Republican Study Committee, 212 (Green Hill Publishers,
Inc. 1983).
 2

rights by the federal government and non-government

groups that advocate for a bigger, unlawful role for
federal executive-branch actors.
As Mountain States explained in its brief
supporting the petitioners in Loper Bright Enterprises
v. Raimondo, No. 22-451 (filed July 21, 2023), it is
important for Mountain States and its clients to have
a clear understanding of how lower courts will apply
deference regimes in cases like the one before the
Court. Even more so, it is critical that our clients—the
farmers, mineral-interest owners, ranchers,
recreationists, and others—can rely on the judiciary
when they get into disagreements with federal
regulators about what this Nation’s laws allow or
require. “In this country, we like to boast that persons
who come to court are entitled to have independent
judges . . . resolve their rights and duties under
law.” Buffington v. McDonough, 143 S. Ct. 14, 18
(2022) (Gorsuch, J., dissenting from the denial of
certiorari). When dealing with federal regulators, the
courts must “decide all relevant questions of law,
interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of
an agency action.” 5 U.S.C. § 706. The courts must say
“what the law is.” Marbury v. Madison, 5 U.S. 137,
177 (1803). There is no room for reflexive deference to
the executive branch—less so for the judiciary to put
its collective thumb on the scale in favor of the federal
regulators and against our clients. That does not yield
a “fair trial in a fair tribunal.” Buffington, 143 S. Ct.
at 18.
Accordingly, Mountain States joins amici in
this brief, urging the Court to review this case and,
 3

ultimately, direct the lower courts to stop reflexively

deferring to the federal regulators, whether through
the so-called “Chevron Step One-and-a-Half doctrine”
or otherwise.
The Buckeye Institute was founded in 1989 as
an independent research and educational
institution—a think tank—whose mission is to
advance free-market public policy in the states. The
Buckeye Institute’s Legal Center files and joins
amicus briefs that are consistent with its mission, the
exercise of citizens’ constitutional rights, and the
orderly functioning of the courts.
AMAC Action; Americans for Limited
Government; Ambassador Sam Brownback; Catholics
Count; Citizens United; Citizens United Foundation;
Eagle Forum; Charlie Gerow; International
Conference of Evangelical Chaplain Endorsers; Tim
Jones, Fmr. Speaker, Missouri House, Chairman,
Missouri Center-Right Coalition; Louisiana Family
Forum; Maryland Family Institute; Men and Women
for a Representative Democracy in America, Inc.;
National Center for Public Policy Research; National
Committee for Religious Freedom; Project21 Black
Leadership Network; Rio Grande Foundation; Setting
Things Right; 60 Plus Association; Students for Life
Action; Wisconsin Family Action; Women for
Democracy in America, Inc.; Yankee Institute; and
Young America's Foundation believe, as did America’s
Founders, that the maintenance of the separation of
government powers into three co-equal branches is
essential to ensuring the promises of the Declaration
to all Americans.
 4

INTRODUCTION AND
SUMMARY OF THE ARGUMENT
The Mine Safety and Health Administration
(MSHA), an agency within the U.S. Department of
Labor, suffers from delusions of Ruritanian aspiration
nursed by decades of judicial obeisance to Chevron v.
NRDC, 467 U.S. 837 (1984). In this case, MSHA
insists that the trucks and repair facility owned by KC
Transport are subject to its authority and thus to its
inspection. How, exactly? By MSHA’s way of thinking,
although the repair facility is neither located at a mine
nor owned by a mining company, the trucks, which are
sometimes hired to transport coal, are parked at the
repair facility which, by the mystery of Chevron,
transforms both the trucks and the facility, though
bearing the outward characteristics of trucks and
facility, into the substance of “mines” subject to
inspection by MSHA. It is as if, in its Chevron-induced
ecstasy, MSHA exclaims that “There is not a square
inch in the whole domain of our human existence over
which MSHA, which is Sovereign over all beneath the
earth and upon it, does not cry, ‘Mine!’”3
The Constitution separates the legislative,
executive, and judicial powers of the federal
government to ensure that the government, which
exists to protect the fundamental rights of the people,
does not become a source of those rights’ violation. The

3With humble apologies to Abraham Kuyper, Sphere Sovereignty

[Souvereiniteit in Eigen Kring], Public Address Delivered at The
Inauguration of The Free University of Amsterdam, Oct. 20,
1880. Found at https://media.thegospelcoalition.org/wp-
content/uploads/2017/06/24130543/SphereSovereignty_English.
pdf. Last accessed February 29, 2024.
 5

governmental structure created by the Constitution is

not a suggestion or a guideline. It is the rule that those
who govern must follow.
Where administrative agencies, ostensibly a
part of the Article II executive branch, act beyond the
power allotted to them by Congress, that separation of
powers is violated. The problem is exacerbated where,
following Chevron v. Nat. Res. Def. Council, 467 U.S.
837 (1984), courts defer to those actions on the
grounds that they are products of the agency’s
permissible interpretation of ambiguous statutory
law.
Nor are expansionistic readings of statutory
law on the part of administrative agencies rare.
According to then-SEC Commissioner Edward
Fleischman, “the true life force of a fourth branch
agency is expressed in a commandment that failed,
presumably only through secretarial haste, to survive
the cut for the original decalogue: Thou shalt expand
thy jurisdiction with all thy heart, with all thy soul
and with all thy might.”4

4 Edward H. Fleischman, Commissioner, Securities and

Exchange Commission, Address to the Women in Housing and
Finance, The Fourth Branch at Work, (November 29, 1990)
https://www.sec.gov/news/speech/1990/112990fleischman.pdf. As
Nobel laureate Friedrich Hayek explained, “While socialists no
longer have a clear-cut plan as to how their goals are to be
achieved, they still wish to manipulate the economy so that the
distribution of incomes will be made to conform to their
conception of social justice. The most important outcome of the
socialist epoch, however, has been the destruction of the
traditional limitations upon the powers of the state.” Friedrich A.
Hayek, The Constitution of Liberty, 256 (University of Chicago
 6

MSHA is no exception. Congress has granted it

jurisdiction over “coal or other mine[s].” 30 U.S.C.
§ 803. The statute defines “coal or other mine[s]” as
“(A) . . . area[s] of land from which minerals are
extracted, (B) private ways and roads appurtenant to
such area,” and “(C) . . . facilities, equipment, … or
other property … used in, or to be used in, or resulting
from … the work of extracting such minerals … , or
used in, or to be used in, the milling of such minerals,
or the work of preparing coal or other minerals.” 30
U.S.C. § 802(h)(1).
Roving the countryside for things to inspect like
the Sherriff of Nottingham looking for peasants to tax,
MSHA found KC Transport, a trucking company with
a repair facility in Emmet, West Virginia. Asserting
that the trucks and repair facility were a “mine” and
thus under its jurisdiction, MSHA sent one of its
inspectors to inspect.5
On review of citations issued by the inspector,
the Federal Mine Safety and Health Review
Commission6 found that MSHA’s interpretation of the

Press, 1978). Available at

https://archive.org/details/constitutionofli00frie/mode/2up.
5 The question behind the question in this case is whether a

word’s referent is something real or whether a word’s meaning is

nothing more than a social construct. “We live in an age that is
frightened by the very idea of certitude, and one of its really
disturbing outgrowths is the easy divorce between words and the
conceptual realities which our right minds know they must stand
for.” Richard M. Weaver, Ideas Have Consequences, 147 (The
University of Chicago Press 2013) (1948).
6 The Federal Mine Safety and Health Review Commission was
 7

statutory language was incorrect and thus ruled for

KC and vacated the citations against it. App. 3a.
However, on appeal from the Commission, following
the reflexively deferential logic of the Chevron
doctrine, the Court of Appeals for the District of
Columbia Circuit remanded the case to allow the
Secretary of the Department of Labor to interpret the
statute again. App. 4a. The D.C. Circuit does so under
its expanded version of the Chevron doctrine,
sometimes called the “Chevron Step One-and-a-Half
doctrine.” Thus, rather than taking the opportunity to
interpret the statute for itself, the D.C. Circuit would
give the agency another chance to interpret the
statute, specifically with an eye toward finding some
basis to defer to the agency. Because Chevron and the
D.C. Circuit’s application of Chevron both facilitate
the illegitimate delegation and usurpation of
congressional authority and represent judicial
abdication of the responsibility to “say what the law
is,” Marbury v. Madison, 5 U.S. 137, 177 (1803), this
Court should grant certiorari and rule for Petitioner.
ARGUMENT
The Constitution creates a government of
separate co-equal branches set against one another to
ensure that the powers of one are duly checked by the
powers of the others. For at least a century, there has
been a concerted effort to undermine the separation of
powers, centralizing more and more power in the

created by the Mine Safety and Health Amendments Act of 1977.

The relevant section is codified at 30 U.S.C. § 823. The
Commission reviews cases arising under the Mine Safety and
Health Amendments Act.
 8

administrative state. This case typifies both the

dangers of administrative overreach and the
abdication of judicial duty inherent in deference to the
administrative state.
I. The Constitution Separates the Powers of
the Federal Government into Coequal
Branches to Facilitate the Proper
Function of Government to its Proper
End: The Protection of the Liberty of the
People.
The founding generation understood the
purpose of government to be the protection of the
rights of the people. Because government can violate
the people’s rights, the Framers understood that
government itself had to be restrained. The
Constitution separates the powers of government to
accomplish that goal.
A. The rights of the people pre-exist government.
The rights of the people pre-exist government.
The Declaration of Independence, which imbues
meaning into the founding documents of our Republic,
including 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 “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).
 9

The Declaration, though perhaps revolutionary

in its clarity and universality, reflected centuries of
Western thought. According to Blackstone, absolute
rights are those “which are such as appertain and
belong to particular men, merely as individuals or
single persons.”7 The Declaration comes even closer to
the ideas of Locke, who wrote, “[N]o 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.”8
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). According to the Ninth Amendment, “The
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.
Clearly, the people were to retain their pre-existing
rights, both enumerated and unenumerated, under
the new government.

7 1 W. Blackstone, Commentaries on the Laws of England 119

(1765).
8 John Locke, Second Treatise on Government, § 6 (1689).
 10

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.”9
In a state of anarchy, 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.”10 In thousands of years of recorded
human history, that nature has not changed.11

9John Adams to Samuel Adams, 18 Oct. 1790 at 352 (Philip B.

Kurland and Ralph Lerner eds., Liberty Fund 1987).
10Montesquieu, Spirit of the Laws, § 11.4 at 150 (The Colonial
Press 1899) (1748) (1748).
11Thomas 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
 11

The Founders were familiar with the abuse of

government power. The “government [is] the greatest
of all reflections on human nature[.]”12 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.13
Yet someone must rule or govern. Virtually no
one would suggest that American government should
be ruled by the one or the few. What about the many?
Popular today is the idea that even more democracy is
the solution to the problem of controlling the
government. The Framers knew better. Democracy, on
its own, is liable to the same faults as other forms of
government. As Madison put it, while “[a] dependence
on the people is, no doubt, the primary control on the
government,” “experience has taught mankind the

time 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.”).
12 The Federalist No. 51 at 269 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (1788).
13 Id at 269.
 12

necessity of auxiliary precautions.”14 Id. As Elbridge

Gerry of Massachusetts said at the constitutional
convention, “The evils we experience flow from the
excess of democracy. The people do not want virtue,
but are the dupes of pretended patriots.”15
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.”
Who, then, will rule? John Adams suggested the
answer in the Massachusetts Constitution. Under
that state’s 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. Proper government does not impose the
rule of one man, nor of the few or the many. Under
proper government, the law must rule. That is the
only means of ensuring the rights of the people. Citing
this provision of the Massachusetts Constitution, the
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

14See 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.”).
151 The Records of the Federal Convention of 1787 48 (Max
Farrand, ed. 1911).
 13

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 in the
Declaration, including the reality of “inalienable
rights,” 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.”16 Those
who administer American government swear an oath
to uphold and defend it.17 Thus, those who govern are
bound by the Constitution. If America is to be a nation
ruled by law and not by the whims of its elected or
unelected officials, the Constitution must rule. Where,
as here, executive agencies can effectively amend and
interpret the law for themselves, free of the threat of
meaningful judicial review, the rule of law is
undermined.
D. Belief in separation of powers was
widespread at the founding and had
significant philosophical precedent.
If the law must rule but people necessarily must
be engaged in the business of governing, how can the

16Randy E. Barnett, Our Republican Constitution 23 (1st ed.

2016) (emphasis added).
17 U.S. Const. art. II, § 1, cl. 7; U.S. Const. art. VI, cl. 3.
 14

rule of law, and thus the rights of the people, be

protected against the whims of the powerful? The
Founders believed that the best answer was the
separation of the government’s legislative, executive,
and judicial powers. For the Founders, the most
important proponent of the separation of powers was
Montesquieu.18
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 exercise them in a tyrannical manner.”19 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.”20 For all three
powers to be exercised by the same person or body
“would be an end of everything.”21

18 The Federalist No. 47 at 250 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (1788)
(“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.”).
19 Montesquieu, supra note 9 at § 11.6 at 151-52.
20 Id. at 152.
21 Id.
 15

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.”22 Alexander Hamilton likewise wrote, “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.”23 The
founding generation’s acceptance of separation of
powers as essential to liberty was so pervasive that a
major antifederalist critique of the proposed

22 Jefferson, supra note 10 at 128-29. See also, John Adams

Excerpt from Thoughts on Government,
https://www.senate.gov/artandhistory/history/common/generic/e
xerpt-thoughts-on-government-adams-1776.htm (last visited
Oct. 17, 2023) (“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 249 (James
Madison) (George W. Carey and James McClellan, eds., The
Liberty Fund 2001) (1788) (“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 the very definition of
tyranny.”).
The Federalist No. 71 at 371 (Alexander Hamilton) (George W.
23

Carey and James McClellan, eds., The Liberty Fund 2001) (1788).
 16

Constitution was that, because of the system of checks

and balances, it did not separate powers enough.24
E. 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, the rights of the
people. 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 (emphasis
added). 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. 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

24 The Federalist No. 47 at 249 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (1788)
(“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.”).
 17

“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
along 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.”25 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.
If the Framers’ understanding of human nature
had any defect, it was their failure to foresee the
willingness of political actors to sacrifice their own
power or that of their institution to gain power for
their political agenda.
Thankfully, the structure established by the
Constitution still protects against this instinct. 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 (emphasis added).
Those “powers not delegated to the United States by

25The Federalist No. 51 at 268 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (1788).
 18

the Constitution, nor prohibited by it to the states, are

reserved to the states respectively, or to the people.”
U.S. Const. amend. X. Those powers that are
delegated are not a blank check.26 Thus, when
Congress gave MSHA the authority to regulate mines,
it gave MSHA authority to regulate mines, not
trucking companies that sometimes do business with
mining companies. And it definitely did not give the
judiciary authority to sacrifice its own power—that is,
abdicate its obligations—and thereby to give an
advantage to federal regulators over the governed.
In contravention of these constitutional
principles, there has been a concerted effort over the
past century to comingle the powers of government in
the executive branch. Members of those branches who
have worked to confuse the powers of the three
branches have violated their oaths to support the
Constitution by hacking away at the very roots of the
structure created by that document. That structure
exists not for the benefit of but as a constraint on
federal officials. When officials of the past have
undermined that structure, officials in power in the
present and future have a responsibility to reinforce
the constitutional foundation and thus to protect the
rights of the people from future governmental
encroachment.

26 The Federalist No. 45 at 241 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (1788)
(“The powers delegated by the proposed constitution to the
federal government, are few and defined.”).
 19

II. Chevron Facilitates and Encourages

Unconstitutional Delegation of Article I
Legislative Power and Article III Judicial
Power to the Executive Branch.
One of the ways that constitutional structure
has been undermined is the delegation of
congressional and judicial power to administrative
agencies and their unelected bureaucrats through the
Court’s decision in Chevron, 467 U.S. 837. Under
Chevron, courts defer to agency interpretations of the
statutes they administer if the court finds that a two-
part test is satisfied. 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
always make a minimally plausible argument that the
statute is ambiguous on the relevant issue. Where
ambiguity can feasibly be claimed, the court need only
find the agency’s interpretation “permissible;” 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)).
 20

The D.C. Circuit’s “Chevron Step One-and-a-

Half doctrine” worsens this problem. When an Article
III court believes a challenged agency interpretation
is wrong, the court should rule based on its own
interpretation rather than issuing an advisory opinion
explaining what the agency must do to unlock
reflexive judicial deference. The constitutional duty of
Article III courts is not telling federal agencies how to
get around the law.
But, under Chevron and Chevron Step One-and-
a-Half, agencies can 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
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.”27

27Brett M. Kavanaugh, Fixing Statutory Interpretation, 129

HARV. L. REV. 2118, 2150 (2016) (reviewing Robert A. Katzmann,
 21

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, 5 U.S.
at 177.28 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 power to resolve these
ambiguities over time. Perez v. Mortg. Bankers Ass’n,

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.
28 “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).
 22

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.”).
It is worse still when courts give agencies
multiple opportunities to produce an interpretation to
which the court can defer under Chevron, as the
Circuit Court did in this case. Yet under Chevron, the
administrative agency, not the courts, resolve those
ambiguities, and under Chevron Step One-and-a-Half,
the agencies even have multiple attempts to get
something past the courts. The courts become wielders
of a rubber stamp, able only in the most extreme of
cases to second guess the agency’s interpretation;
worse, they effectively give agencies the stamp and
instruct them how to use it.
III. The D.C. Circuit’s National Cement
Doctrine Exacerbates Chevron’s
Constitutional Problems.
Following the logic of Chevron, the D.C.
Circuit’s double-deference doctrine compounds that
decision’s constitutional deficiencies. The Court in
Chevron noted that, “Judges are not experts in the
field, and are not part of either political branch of the
government.” Chevron, 467 U.S. at 865. As such,
courts are not in a position, the Court reasoned, to
replace an agency’s policy judgment with their own.
Id. at 865-66. Following that logic, the D.C. Circuit has
adopted what the authors of one law review article
 23

have called Chevron Step One-and-a-Half.29 Applying

this doctrine, the court below found that, while
MSHA’s position in litigation was that the statutory
language in question was clear, that language was in
fact ambiguous. See App. 14a. Because the agency
argued that the statute was clear, the D.C. Circuit,
rather than interpreting the statute for itself,
remanded to the agency to allow the Secretary of
Labor to interpret the statute again, this time under
the assumption that the statute is ambiguous on the
relevant point. Id.
In other words, rather than “say[ing] what the
law is,” Marbury, 5 U.S. at 177, the D.C. Circuit in this
case and others gives agencies still more time to
determine their own interpretation of the statutory
law, leaving regulated parties in litigation limbo.
Worse still, the court gave the agency the keys to
unlock deference—hints, that is, regarding how to
convince the court to put its thumb on the scale for the
agency against the governed. The court abdicated its
duty to say what the law is and to apply it. The court’s
decision should be reversed, and amici respectfully
request that the Court provide clear guidance
prohibiting the lower courts from so favoring
administrative agencies.
There is no room in the constitutional structure
of the federal government for administrative agencies
to exercise legislative or judicial powers. Yet for about
a century, the federal government has tilted power
towards the administrative state and its bureaucrats.

29 Daniel J. Hemel, Aaron L. Nielson, Chevron Step One-and-a-

half, 84 U. Chi. L. Rev. 757, 760-61 (2017).

 24

There is similarly no room for the judiciary to aid

administrative agencies in their efforts to thwart the
separation of powers. The Court should grant
certiorari in this case and rule for Petitioners to take
a step in the direction of returning the federal
government to the proper balance of powers
established in the Constitution.
CONCLUSION
For the foregoing reasons, the Court should
grant KC Transport’s petition for a writ of certiorari.

J. Marc Wheat
Counsel of Record
Timothy Harper (Admitted in DC)
Advancing American Freedom, Inc.
801 Pennsylvania Avenue, N.W., Suite 930
Washington, D.C. 20004
(202) 780-4848
[email protected]
Counsel for Amici Curiae