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`U.S. Department of Justice
`Civil Division
`450 5th St., N.W., Fifth Floor
`Washington, D.C. 20530
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`Tel.: (202) 305-0106
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`July 15, 2022
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`Hon. Mark J. Langer
`Clerk, U.S. Court of Appeals for the District of Columbia Circuit
`E. Barrett Prettyman U.S. Courthouse &
` William B. Bryant Annex
`333 Constitution Ave., N.W.
`Washington, D.C. 20001
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`Re: Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., et al.,
`Case No. 21-5028 (D.C. Cir.) (oral argument held Nov. 3, 2021)
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`Dear Mr. Langer:
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`Defendants submit this response to Plaintiff’s citation to the Supreme Court’s
`recent decision in West Virginia v. EPA, 142 S. Ct. 2587 (2022).
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`In West Virginia, the Court declared that “in certain extraordinary cases,” the
`agency “must point to clear congressional authorization for the power it claims.” Id.
`at 2609. The Court concluded that West Virginia was such “a major questions
`case.” Id. at 2610. This was because the novel plan developed by the Environmental
`Protection Agency (“EPA”) would have required a sector-wide shift in electricity
`production. Id. at 2603. It was expected to entail billions of dollars for compliance,
`require the retirement of dozens of coal-fired plants, eliminate tens of thousands of
`jobs, cause electricity prices to remain 10% higher in many States, and reduce gross
`domestic product by at least a trillion dollars by 2040. Id. at 2604. Moreover, the
`Court observed that the agency had located that “newfound power” in the “vague
`language” of an “ancillary provision” of the statute—one that “was designed to
`function as a gap filler and had rarely been used in the preceding decades.” Id. at
`2610. And the Court stated that “the Agency’s discovery allowed it to adopt a
`regulatory program” (a cap-and-trade scheme) “that Congress had conspicuously
`and repeatedly declined to enact itself.” Id. The Court thus concluded that the
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`USCA Case #21-5028 Document #1955210 Filed: 07/15/2022 Page 2 of 3
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`statutory provision upon which EPA relied did not provide authority for the
`challenged plan. Id. at 2616.
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`West Virginia is not relevant here for three reasons. First, the major questions
`doctrine has never been raised since this lawsuit was filed in June 2016. Second,
`whereas West Virginia involved a “newfound power,” optional practical training has
`existed since the Truman administration, 12 Fed. Reg. 5355, 5357 (Aug. 7, 1947).
`Cf. Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932) (congressional actions around
`an immigration-related interpretation “creates a presumption in favor of the
`administrative interpretation, to which we should give great weight, even if we
`doubted [its] correctness”). Third, Justice Gorsuch’s West Virginia concurrence
`discussing the nondelegation doctrine was only joined by Justice Alito and did not
`state the views of the Court.
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`Sincerely,
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` By: /s/ Joshua S. Press s
`JOSHUA S. PRESS
`Senior Litigation Counsel
`United States Department of Justice
`Civil Division
`P.O. Box 868, Ben Franklin Station
`Washington, DC 20044
`Tel.: (202) 305-0106
`Fax: (202) 305-7000
`e-Mail: joshua.press@usdoj.gov
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`cc: All Counsel of Record
` (via ECF)
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`USCA Case #21-5028 Document #1955210 Filed: 07/15/2022 Page 3 of 3
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`CERTFICATES OF SERVICE AND COMPLIANCE
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`I hereby certify that this filing is 350 words, and therefore complies with the
`word limitations of Federal Rule of Appellate Procedure 28(j) and this Circuit’s local
`rules.
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`I hereby certify that on July 15, 2022, I electronically filed the foregoing letter
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`brief with the Clerk of the Court by using the appellate CM/ECF system. Counsel of
`record are registered CM/ECF users.
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`/s/ Joshua S. Press
`JOSHUA S. PRESS
`Senior Litigation Counsel
`U.S. Department of Justice
`Civil Division
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