Amicus Brief: Goldwater Institute v. U.S. Department of Health and Human Services


The Constitution requires federal judges to exercise independent judgment and refrain from bias when interpreting the law. These are foundational constitutional requirements for having an independent judiciary. Article III gives federal judges life tenure and salary protection to ensure that judicial pronouncements will reflect a court’s independent judgment rather than the desires of the political branches. Also, the Due Process Clause forbids judges to display any type of bias in favor of or against a litigant when resolving disputes. These statements of judicial duty are so axiomatic that they are seldom if ever mentioned or relied upon in legal argument—because to even suggest that a court might depart from its duty of independent judgment or display bias toward a litigant would be a scandalous insinuation.

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CASE: Goldwater Institute v. U.S. Department of Health and Human Services (closed)

COURT: The United States Court of Appeals for the Ninth Circuit

DOCUMENT: No. 19-15615


FILED: July 17, 2019


March 24, 2020 | Decision of the United States Court of Appeals for the Ninth Circuit
Click here to read the full document.
July 17, 2019 | Brief Amicus Curiae of the New Civil Liberties Alliance in Support of Plaintiff-Appellant and Reversal
Click here to read the full document.


May 14, 2019 | NCLA Asks Full Ninth Circuit to Decide that Police Theft During Execution of a Search Warrant Violates the Constitution in Jessop v. City of Fresno

Washington, D.C. —The New Civil Liberties Alliance, a nonprofit civil-rights organization and public-interest law firm, filed an amicus brief supporting the appellant in the case of Goldwater Institute v. U.S. Department of Health and Human Services before the U.S. Court of Appeals for the Ninth Circuit. NCLA is particularly disturbed by the practice, which happened here, of extending judicial “Auer deference” to legal interpretations that federal agencies provide in affidavits to the court as one of the litigating parties. 

Deferring to the interpretations of executive branch agencies compromises judicial independence and forces judges to violate their judicial oath to provide their own judgment.  It also deprives litigants before the court of due process, because it is not possible for one party to have a fair trial if the court is deferring to the legal interpretations of the other party before the court.   

Last month, in Kisor v. Wilkie, the Supreme Court created a new “Step Zero” to Auer deference that requires courts first to use traditional tools of statutory construction and evaluate other factors to determine whether there is a need to resort to Auer deference. Under Kisor, there should be no need to defer to agencies’ legal interpretations in most cases going forward—very much including this one.

“Deference is a thin disguise for courts that abandon their duty of independent judgment and assign weight to a non-judicial entity’s interpretation of the law. Kisor did not resolve the grave constitutional concerns that this deference regime raises. The Ninth Circuit now has the chance to give due regard to these overlooked constitutional problems with Auer deference.”—Peggy Little, Senior Litigation Counsel, NCLA


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.