WASHINGTON, DC, October 31, 2019 – The New Civil Liberties Alliance is grateful for the
overwhelming support our Petition for a Writ of Certiorari with the U.S. Supreme Court has
received. The petition seeks to overturn the so-called Brand X doctrine. Amici curiae, or friends
of the Court, submitted briefs urging the Court to hear NCLA’s case representing Howard and
Karen Baldwin against the Internal Revenue Service. NCLA’s petition seeks review of the Ninth
Circuit’s decision in Baldwin v. United States. The two questions presented before the Court are:

1) Should Brand X be overruled? and (2) What, if any, deference should a federal agency’s
statutory construction receive when it contradicts a court’s precedent and disregards traditional
tools of statutory interpretation, such as the common-law presumption canon? See full case
summary here.

“The Constitution is meant to protect the people’s liberties from intrusion by the government,
not vice versa. Yet Brand X protects government litigants from the people by instructing federal
judges to side with the government. The Court should heed the clarion call of these amici curiae
and grant certiorari in this case.” – Adi Dynar, NCLA Litigation Counsel
Excerpts from Amici Curiae submitted in support of NCLA’s Petition for a Writ of
Certiorari:

• Administrative agencies are “weaponizing Brand X” to undermine the people’s liberties.
“Congressional legislation responding to judicial precedent interpreting statutes reflects healthy
operation of the separation of powers,” which “is a central feature of our system of checks and
balances.” – Americans for Prosperity and Cause of Action Institute

• Brand X deference “occasion[s] a disconcerting disruption of the constitutional balance between the
separated powers.” The IRS’s “transparently superficial exercise,” “should not be rewarded” with
deference merely because IRS went “through the motions of a Chevron-begging rulemaking.”—Cato
Institute and NFIB Small Business Legal Center

• “Brand X is contrary to the plan of the Administrative Procedure Act which vests judicial review of
legal questions in the courts. The Court’s decision in Brand X abdicates the judiciary’s duty under
section 706 of the … Act … to rule on questions of law and to invalidate agency actions that are
contrary to statute.” – Claremont Institute’s Center for Constitutional Jurisprudence

• Brand X “enables federal administrative agencies to effectively rewrite state laws,” and “allows federal
executive bureaucracies”—despite the Court’s “presumption against preemption in the absence of a
‘clear statement’”—to also “override state court jurisprudence.” – Goldwater Institute

• Brand X deference is a “ubiquitous problem in administrative law,” and “a liberty destroying cocktail.”
The Court should “begin to crawl back from the abyss by reasserting Article III power and
abandoning Brand X.” – The National Right to Work Legal Defense Foundation, Inc.

• It is important that courts do not give “reflexive deference” to agency interpretations of Congressional
silence, especially “when the silence signals that the common law tacitly supplies a legal presumption.”
– The New England Legal Foundation

ABOUT 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. For more information visit us online: NCLAlegal.org.

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