Amicus Brief: Brackeen, et al. v. Haaland, et al.


Under the Constitution, courts have a duty “to say what the law is.”  NCLA believes that courts shirk that duty when they defer to a federal agency’s interpretation of the law—under a judge-made rule known as “Chevron deference.”  In this case, a three-judge panel of the Fifth Circuit determined that several provisions of the Indian Child Welfare Act (ICWA) were ambiguous and then deferred to a federal agency’s interpretation of those provisions.  NCLA responded by filing a brief urging the Fifth Circuit to rehear the case en banc (that is, a rehearing before all judges sitting on the Fifth Circuit).  In a victory for NCLA, the court agreed to do so.  NCLA then filed a second brief, arguing that judges should stop deferring to others’ interpretation of the law and instead should rely on their own best judgment when construing federal statutes.  The Fifth Circuit’s eventual ruling was a partial victory for NCLA.  The court refused to defer to the Bureau of Indian Affairs’ (BIA) interpretation of one ICWA provision and struck down BIA’s interpretive regulation, but it applied Chevron deference to uphold a second BIA regulation.

In February 2022, the U.S. Supreme Court agreed to review the case to determine whether certain provisions of the ICWA are unconstitutional.  But the Supreme Court will not be addressing the Chevron deference issues decided by the Fifth Circuit.

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CASE: Brackeen, et al. v. Haaland, et al.

COURT: United States Court of Appeals for the Fifth Circuit

DOCUMENT: 1) 18-11479; 2) 18-11479

ATTORNEYS FOR AMICUS CURIAE: 1) Philip Hamburger, Mark Chenoweth, Peggy Little, Adi Dynar; 2) Philip Hamburger, Mark Chenoweth, Peggy Little, Adi Dynar

FILED: 1) October 8, 2019; 2) January 7, 2020


April 6, 2021 | Decision of the U.S. of Appeals for the Fifth Circuit
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January 7, 2020 | Brief of Amicus Curiae New Civil Liberties Alliance in Support of the Plaintiffs-Appellees on Rehearing En Banc
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October 10, 2019 | Brief of Amicus Curiae New Civil Liberties Alliance in Support of the Plaintiffs-Appellees’ Petition for Rehearing En Banc
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January 7, 2020 | NCLA Asks Court to Not Abandon Its Duty of Independent Judgment in BIA Case Under Chevron Deference

Washington, DC (January 7, 2019) – The New Civil Liberties Alliance filed an amicus brief today with the Fifth Circuit U.S. Court of Appeals in support of plaintiffs-appellees in the case of Brackeen v. Bernhardt. NCLA is urging the full Fifth Circuit to call out the constitutional defects inherent in the Chevron judicial deference doctrine. Specifically, NCLA points out that judges violate Article III of the Constitution and their judicial oaths when they give Chevron deference instead of providing their independent judgment. Furthermore, judges violate the Due Process Clause when they favor a government litigant’s interpretation of the law over the interpretation of the other party in the case. In other words, Chad Brackeen and the other plaintiffs-appellees are denied a fair trial if the judge hearing their case employs Chevron deference in favor of the government.

In this case, Congress gave the federal agency (the Bureau of Indian Affairs) a 180-day window to issue regulations, but that was 36 years ago. Now the BIA thinks it can make law as it pleases, when it pleases. NCLA calls on the en banc Fifth Circuit to resist the siren song of Chevron.

NCLA released the following statements:

“Under the Chevron deference doctrine, three judges of the Fifth Circuit concluded that BIA’s decision to issue lame-duck regulations in 2016 some four decades too late was “reasonable.” That conclusion, which is hard to reconcile with logic or grammar, was possible only because of Chevron—a doctrine that requires judges to abandon their duty of independent judgment and acquiesce in the decisions of executive-branch agencies. We urge the full Fifth Circuit, which is rehearing the case en banc, to silence the panel’s out-of-tune paean to Chevron.” —Adi Dynar, NCLA Litigation Counsel

“This case presents a perfect opportunity for the Fifth Circuit to repudiate Chevron deference, a doctrine so ill-advised and violative of due process that it has been construed by courts and agencies to permit the Bureau of Indian Affairs (BIA) latitude to write itself its own permission slip to issue regulations four decades after Congress’s grant of such authority lapsed. By repudiating Chevron, the Court will uphold its integrity as an independent and unbiased third branch of government ensuring that Americans enjoy due process of law.”
Peggy Little, NCLA Senior Litigation Counsel


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.

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