Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of Petitioner

The judgment of the court of appeals should be reversed for four separate and independent reasons. First, 34 U.S.C. § 20913(d) violates the Constitution by divesting Congress of legislative powers and transferring those powers to the Attorney General. Second, § 20913(d) fails to provide an “intelligible principle” to guide the Attorney
General’s discretion, as current doctrine of this Court requires. Third, the Constitution does not allow the Attorney General to simultaneously create and execute a rule like 28 C.F.R. § 72.3 that he is charged with enforcing. Fourth, the Constitution does not permit criminal offenses to be defined in administrative rules rather than statutes.

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