Boyden Gray & Associates filed a brief today on behalf of constitutional law scholars Richard Epstein and Jeremy Rabkin in the case U.S. et al. v. DTE et al., No. 10-13101 (E.D. Mich. July 30, 2020).

The brief argues that citizen suits allow private parties to enforce public rights without constitutionally required executive supervision, and thus infringe on core executive powers reserved to the President and his properly appointed and supervised subordinates.

The case involves a too-frequent situation: an environmental group has intervened in the federal government’s enforcement of the environmental laws, and seeks to hold up resolution of the lawsuit in order to extract a side deal. Thus, the brief argues,

Sierra Club’s side deal is an unconstitutional attempt to undercut and second-guess the prosecutorial discretion of the President and his lawfully appointed agent, the Attorney General. 42 U.S.C. § 7605. Under the Constitution, all executive power is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020) (quoting Art. II, § 1, cl. 1; id., § 3). The power to prosecute or decline to prosecute public offenses—such as Clean Air Act violations—is a core executive power entrusted exclusively to the President’s care. Congress may not vest any part of that law enforcement power in private persons, including the Sierra Club, who have not been properly appointed to public office and who therefore remain outside of the President’s control and supervision. This purported side deal would allow Sierra Club to unlawfully exercise executive power. To avoid this constitutional collision, the Court must reject Sierra Club’s separate settlement agreement and dismiss Sierra Club’s complaint with prejudice.

The entire brief is available here.

Boyden Gray & Associates is a boutique litigation and public policy firm, continuing C. Boyden Gray’s decades of service as counselor to presidents, business leaders, legislators, and regulators on matters of constitutional law, regulatory policy, and international affairs.